Family Law Act - Australia

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seniority next to the Senior Judges to whom subsection (6) applies according to the days on which their appointments as Judges took effect.

      (9) Where, because 2 or more commissions of appointment as Judge took effect on the same day on or after the commencement of this subsection, subsection (8) does not determine seniority between the Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the Governor‑General.

      (10) If: (a) a person’s commission of appointment as a Judge of a particular kind terminates; and (b) a new commission of appointment of the person as a Judge of that kind takes effect immediately after the termination; the day of appointment of the person as a Judge of that kind is, for the purposes of this section, the day on which the earlier appointment took effect and not the day on which the later appointment took effect.

      (11) Subsection (10) applies to the termination of a commission of appointment however it occurs (whether because of resignation or because of the expiration of the term of the appointment or otherwise).

      24 Absence or illness of Chief Judge (1) Whenever: (a) the Chief Judge is absent from Australia or from duty; or (b) there is a vacancy in the office of Chief Judge; the Deputy Chief Judge or, if the Deputy Chief Judge is unavailable, the next senior Judge who is in Australia and is available and willing to do so shall perform the duties and may exercise the powers of the Chief Judge.

      (2) A Judge who is, under subsection (1), performing the duties and exercising the powers of the Chief Judge shall be called the Acting Chief Justice of the Court.

      25 Salary and allowances (1) The Chief Judge, Deputy Chief Judge, Judge Administrators, Judges assigned to the Appeal Division, Senior Judges and other Judges of the Court shall receive salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament.

      (2) The salary and annual allowances of the Judges accrue from day to day and are payable monthly.

      (3) The Consolidated Revenue Fund is appropriated to the extent necessary for payment of salaries and annual allowances in accordance with this section.

      26 Oath or affirmation of allegiance and office A Judge shall, before proceeding to discharge the duties of the office, take, before the Chief Justice or a Justice of the High Court of Australia or a Judge of the Family Court or of another court created by the Parliament, an oath or affirmation of allegiance in the form in the Schedule to the Constitution, and also an oath or affirmation in the following form:

      “I, do swear that I will well and truly serve in the office of (Chief Judge, Deputy Chief Judge, Judge Administrator, Senior Judge or Judge, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill‑will, So help me God.”

      or

      “I, do solemnly and sincerely promise and declare that ” (as above, omitting the words “So help me God”).

      Division 4 — Judicial Registrars

      26A Judicial Registrars The Governor‑General may appoint one or more Judicial Registrars of the Court.

      26B Powers of Judicial Registrars (1) The Judges, or a majority of them, may make Rules of Court delegating to the Judicial Registrars all or any of the powers of the Court except the power to make an excluded child order (as defined in subsection (1A)) and the power to make an order setting aside a registered award under section 13K.

      (1A) An excluded child order is: (a) a parenting order to the extent to which it provides that: (i) a child is to live with a person; or (ii) a child is to spend time with a person; or (iii) a child is to communicate with a person; or (iv) a person is to have parental responsibility for a child; or (b) an order in relation to the welfare of a child; other than: (c) a parenting order made under paragraph 70NEB(1)(b) or an order made under paragraph 70NFB(2)(c) that has the same effect as such a parenting order; or (d) an order until further order; or (e) an order made in undefended proceedings; or (f) an order made with the consent of all the parties to the proceedings.

      (2) Without limiting the generality of subsection (1), the Judges, or a majority of them, may make Rules of Court under that subsection: (a) delegating to the Judicial Registrars all or any of the powers of the Court that could be delegated to the Registrars of the Court; and (b) delegating to the Judicial Registrars powers of the Court by reference to powers of the Court that have been delegated to the Registrars of the Court under section 37A.

      (3) A power delegated to the Judicial Registrars shall, when exercised by a Judicial Registrar, be deemed to have been exercised by the Court or a Judge, as the case requires.

      (4) The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge.

      (5) The provisions of this Act, the regulations and the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, under a delegation made under subsection (1), exercisable by a Judicial Registrar, apply in relation to an exercise of the power by a Judicial Registrar as if references to the Court, or to a court exercising jurisdiction under this Act, were references to a Judicial Registrar.

      (6) The Judicial Registrars shall have, in addition to the powers delegated to them under subsection (1), such other powers (if any) as are conferred on them by this Act, the regulations and the standard Rules of Court.

      Note: Powers to make Rules of Court are also contained in sections 37A, 109A and 123.

      26C Review of decisions of Judicial Registrars (1) A party to proceedings in which a Judicial Registrar has exercised a power delegated under subsection 26B(1) may, within the time prescribed by, or within such further time as is allowed in accordance with, Rules of Court made by the Judges or a majority of them, apply to the Court to review the exercise of the power.

      (2) The Court may, on application made under subsection (1) or of its own motion, review the exercise by a Judicial Registrar of a power delegated under subsection 26B(1), and may make such orders as it considers appropriate in relation to the matter in relation to which the power was exercised.

      (3) The Court may, on the application of a party or of its own motion, refer an application under subsection (1) to a Full Court of the Court.

      26D Exercise of delegated powers by Court (1) Where: (a) an application for the exercise of a power delegated under subsection 26B(1) is to be, or is being, heard by a Judicial Registrar; and (b) the Judicial Registrar considers that it is not appropriate for the application to be determined by a Judicial Registrar; the Judicial Registrar shall not hear, or continue to hear, the application, and shall make appropriate arrangements for the application to be heard by the Court.

      (2) Where: (a) a power delegated under subsection 26B(1) is proposed to be exercised in a particular case by a Judicial Registrar; but (b) the Judicial Registrar has not commenced to exercise the power in that case; a Judge may, on application by a person who would be a party to the proceedings before the Judicial Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge.

      (3) Where an application is made to a Judge under subsection (2) seeking an order that, in a particular case, a power be exercised by a Judge, the Judicial Registrar shall not commence to exercise the power in that case until the application has been determined.

      26E Application of the Legislative Instruments Act 2003 to rules of court The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made under sections 26B and 26C of this Act: (a) as if a reference to a legislative instrument were a reference to a rule of court; and (b) as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges; and (c) subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.

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