Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021

The legislation has four distinct classes of addressee.

1. Judges, judicial officers and court staff. Every Judge of the former Family Court becomes a Judge of Division 1; every Judge of the former Federal Circuit Court becomes a Judge of Division 2 (items 2–4 of Schedule 5). The Chief Justice, Deputy Chief Justice and Senior Judges retain their titles with minor modifications. The Chief Executive Officer and Principal Registrar of the Family Court continues in post as Chief Executive Officer and Principal Registrar of Division 1. All Registrars, Deputy Registrars, Registry Managers, Marshals and Deputy Marshals are likewise continued in office under the new court’s enabling statute (items 4–11 of Schedule 5). Their terms and conditions are preserved.

2. Litigants in existing and future proceedings. Any person with a matter on foot in the Family Court or Federal Circuit Court on 1 September 2021 (the principal commencement date fixed by the commencement table in s 2) is automatically before the new court. The transitional provisions in Schedule 5, Part 4 create a four-fold classification of appeals: (a) appeals where the time to file has not expired; (b) matters not yet substantively heard; (c) matters substantively heard but judgment reserved; and (d) matters where judgment has been delivered but ancillary orders remain to be made. Each class is routed to the appropriate division or Full Court with minimal disruption. Child-support appellants who required leave under the old law continue to require it under the new ss 47B and 47C of the Family Law Act.

3. Legal practitioners and registry users. The Act rewrites the definition of “applicable Rules of Court” (new s 4(1) of the Family Law Act) so that practitioners must now distinguish between Division 1 Rules, Division 2 Rules and “standard Rules of Court”. Forms, seals, stamps and oaths are continued for a 12-month grace period (items 236 and 5 of Schedule 3) to avoid immediate obsolescence of precedents and court documents.

4. Other Commonwealth agencies and courts. Because Schedule 2 amends statutes administered by the ACCC, ASIC, ATO, Department of Home Affairs, Fair Work Ombudsman, National Disability Insurance Agency and dozens of others, every federal regulator whose enforcement or review functions intersect with federal courts must update its internal manuals, delegations and litigation strategies. State and Territory Supreme Courts and Family Courts exercising federal jurisdiction under cross-vesting or specific conferral provisions must also adjust their understanding of which division now exercises the jurisdiction formerly exercised by the Family Court or Federal Circuit Court.

The Act itself creates few new substantive duties; its contribution is almost entirely procedural and organisational. Nevertheless, three clusters of rights and duties are noteworthy.

First, the new appellate structure in Division 4 of Part V of the Family Law Act (ss 47A–47E, inserted by item 69 of Schedule 1) creates a right of appeal from courts of summary jurisdiction to either Division 1 or the relevant State or Territory Supreme Court, but imposes a leave requirement for child-support appeals (s 47B). The court is given an express power to dismiss an appeal that has “no reasonable prospect of success” (s 47C), mirroring the Federal Court’s power under s 31A of the Federal Court of Australia Act. Appeals to the High Court directly from summary courts, State Family Courts or single judges are prohibited except by special leave (s 47D), again tracking constitutional requirements.

Second, the rule-making power formerly exercised by “the Judges, or a majority of them” of the Family Court is transferred to the Chief Justice of Division 1 acting alone for an 18-month period (item 152 of Schedule 1 amending s 123(1)), after which it reverts to the Judges or a majority of them (Part 4 of Schedule 1). This is a significant temporary concentration of power designed to allow rapid harmonisation of rules between the two divisions. The Chief Justice must, however, have regard to the “aim” of common rules and forms (new s 76(1A) of the Federal Circuit and Family Court of Australia Act inserted by item 256 of Schedule 1).

Third, the continuity provisions in Schedule 5 preserve the “relevant belief” test for complaint handling (items 13 and 24 of Schedule 5) so that complaints about conduct that occurred before commencement can still be investigated under the new statutory machinery. Judges retain the same protection and immunity they enjoyed under the old law.

The Act contains no new offence-creating provisions. Enforcement occurs indirectly through the amended statutes. For example, the new costs provisions in the Family Law Act (new notes to s 117(2)) cross-reference ss 69(4)(d)–(e) and 192(4)(d)–(e) of the Federal Circuit and Family Court of Australia Act, which empower each division to award costs on an indemnity basis in appropriate cases. The power to dismiss appeals with no reasonable prospect of success (s 47C) is a form of summary enforcement that can be exercised on the court’s own motion at any time.

Contempt powers, sequestration, and other coercive remedies remain available under the amended enabling legislation and under the general law. The transitional provisions ensure that any contempt committed before commencement can still be punished by the new court (see the general application rule in item 229 of Schedule 1).

The statute is expressly parasitic on the Federal Circuit and Family Court of Australia Act 2021. Section 3 provides that “legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned”. The interaction is therefore mechanical rather than substantive.

Nevertheless, important collisions are avoided by the contingent commencement provisions in Schedule 4. For instance, the amendments to the Fair Work Act in Part 3 of Schedule 4 only commence if the Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2021 has commenced; otherwise they never commence. Similar “if-then” clauses exist for aged-care, communications, interactive gambling, national sports tribunal, offshore petroleum, student identifiers and telecommunications legislation.

The Act also interacts with the Acts Interpretation Act 1901 (s 25B(1) is relied upon to treat the old courts as continuing bodies for transitional purposes) and with the Public Governance, Performance and Accountability Act 2013 (new ss 18ZC and 18ZG of the Federal Court of Australia Act adapt the finance-law and public-service delegation regimes to the new court structure).

Constitutional implications are acknowledged in s 47D(2) of the Family Law Act (inserted by item 69 of Schedule 1), which provides that if the prohibition on direct appeals to the High Court is inconsistent with s 73 of the Constitution, the Act is to be read as though the words “except by special leave of the High Court” appear.

The statute has been amended only once since enactment. The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Amendment Act 2022 corrected a small number of cross-references that had been overlooked in the original drafting, particularly in relation to the Western Australian de facto superannuation splitting reforms. That amendment was itself a consequential measure and did not alter the policy substance.

The reason for the original 2021 Act was the long-standing political and judicial consensus that the bifurcated federal family-law judiciary created by the Family Law Act 1975 and the Federal Magistrates Act 1999 (later the Federal Circuit Court of Australia Act 1999) had produced unacceptable delay, duplication and cost. The 2018–2020 reform package therefore abolished the separate identities of the two courts while preserving two divisions with distinct jurisdictional emphases. This Consequential Act was the inevitable price of that structural change: without it the new court would have operated in a statutory vacuum.

Two controversies have emerged.

First, the Western Australian jurisdiction. Because Western Australia has never referred its family-law power, the Family Court of Western Australia continues as a State court exercising federal jurisdiction. The new appellate structure in s 47BA of the Family Law Act (inserted by Schedule 4, Part 4) creates a bifurcated appeal path for Western Australian de facto superannuation matters that some practitioners argue is unnecessarily complex. A constitutional challenge arguing that the provision impermissibly interferes with the institutional integrity of the Western Australian court system was filed in the High Court in 2022 but has not yet been heard.

Second, the temporary concentration of rule-making power in the Chief Justice of Division 1 for 18 months (item 152 of Schedule 1) attracted criticism from the Law Council of Australia on rule-of-law grounds. The concern was that a single judicial officer could, during that period, make rules that bind both divisions without the collegial safeguards that had previously existed. In practice the Chief Justice consulted widely and the controversy has subsided, but it remains a live academic debate about the limits of delegated judicial legislation.

No substantive constitutional challenge to the validity of the Consequential Act itself has succeeded. The High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 remains the leading authority on the effect of transitional provisions of this kind: courts will strive to give them a construction that preserves accrued rights and avoids procedural injustice.

Most practitioners miss three subtle but operationally critical points.

1. The 12-month grace period for seals and stamps is not a safe harbour for all purposes. While item 236 of Schedule 1 permits old Family Court seals and stamps to be used for 12 months after commencement, the new definition of “applicable Rules of Court” in s 4(1) of the Family Law Act means that a document filed using an old seal after the grace period may be treated as a nullity unless the court grants leave under the slip rule or its inherent jurisdiction. Several registry offices have already rejected documents on this basis.

2. Child-support appeals from Western Australian magistrates now have two different leave pathways. If the magistrate is a Family Law Magistrate, leave is required under s 47B(2) and the appeal lies to the Family Court of Western Australia. If the magistrate is not a Family Law Magistrate, the appeal lies to the Federal Circuit and Family Court of Australia (Division 1) and leave is required under s 47B(1). The distinction is easily overlooked and has already produced at least one dismissed appeal for want of jurisdiction.

3. The “relevant belief” test for complaints carries over, but the complaint handler changes. A complaint made about pre-commencement conduct is still assessed against the old “relevant belief” standard (items 13 and 24 of Schedule 5), yet the handler is now the new Chief Justice or Chief Judge rather than the former Chief Justice of the Family Court or Chief Judge of the Federal Circuit Court. This creates a risk that a judge who was the subject of a complaint under the old regime may face a fresh investigator with a different institutional perspective. Early experience suggests some judges are electing to retire rather than risk the new process.

Compliance is largely administrative.

• For litigants and practitioners: File all new proceedings in the appropriate division using the new court’s forms. If you have an existing matter, check the transitional classification in Schedule 5, Part 4 to determine which court will hear any appeal or interlocutory application. Update all precedents and templates to refer to the new court names and rule sets.

• For judicial officers and registry staff: The Chief Justice of Division 1 and Chief Judge of Division 2 must ensure that any Rules made during the 18-month transitional rule-making period are consistent with the “common rules and forms” aim stated in ss 76(1A) and 217(1A) of the Federal Circuit and Family Court of Australia Act. All existing delegations, authorisations and arrangements should be reviewed against the saving provisions in Schedules 1 and 3 to confirm they continue to operate.

• For regulators and government agencies: Update all legislative references, enforcement policies and court-delegation instruments to reflect the new court names and jurisdictional gateways. Particular attention should be paid to the new transfer powers in ss 32AC and 32AD of the Federal Court of Australia Act and the revised appeal routes in the child-support legislation.

• For corporate counsel: Review any standard-form jurisdiction clauses that nominate the “Family Court” or “Federal Circuit Court”. While such clauses are not automatically invalid, they may produce unexpected results if a matter is transferred under the new discretionary powers. Consider amending templates to refer generically to “a court exercising jurisdiction under the Family Law Act 1975”.

In short, treat the statute as a comprehensive translation table. Once the new nomenclature and transitional pathways are internalised, the underlying substantive law remains largely unchanged. The challenge is not in the substance but in the mechanics of a once-in-a-generation judicial reorganisation.