Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Jurisdiction of Courts (Family Law) Bill 2005 [2006]

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2004-2005

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

JURISDICTION OF COURTS (FAMILY LAW) BILL 2005

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock, MP)

 

 

 



JURISDICTION OF COURTS (FAMILY LAW) BILL 2005

 

GENERAL OUTLINE

 

The Jurisdiction of Courts (Family Law) Bill 2005 (the Bill) amends the Family Law Act 1975 (the Family Law Act), the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 .  The intention of the Bill is to provide the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia with substantially the same jurisdiction and appeal structure in relation to family law and child support matters as the Federal Magistrates Court.

 

The intention of these amendments is to achieve a similar objective to that for the Federal Magistrates Court, that is, to allow the Magistrates Court of Western Australia constituted by a Family Law Magistrate to resolve expeditiously a high volume of less complex and shorter matters.  The increased jurisdiction for the court will provide litigants with a simple and accessible alternative to litigation in the Family Court of Western Australia.  This will also enable the Family Court of Western Australia to concentrate on hearing more complex family law and child support matters.

 

These amendments originate from a review completed in 2003 of the workload and resources of the Family Court of Western Australia, carried out by the Attorney-General’s Department, in consultation with the Western Australian Department of Justice and the Family Court of Western Australia. 

 

The Review concluded that, as magistrates of the Perth Court of Petty Sessions, now amalgamated into the Magistrates Court of Western Australia, had limited jurisdiction in relation to family law matters, the Family Court of Western Australia judges were hearing matters that would be more suitable for magistrate determination.  Federal Magistrates in the Federal Magistrates Court by comparison have jurisdiction in nearly all family law matters.

 

In order to ensure the more efficient handling of family law matters in Western Australia, the Review recommended that family law and child support legislation be amended to give specialist Western Australian family law magistrates the same jurisdiction as their federal counterparts.  The Review also recommended amendments to provide similar rights of appeal from decisions of Western Australian family law magistrates as from decisions of Federal Magistrates in family law and child support matters.

 

This Bill provides that family law and child support matters can now be heard by the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.  A ‘Family Law Magistrate of Western Australia’ is defined as a person who holds office concurrently as a magistrate under the Magistrates Court Act 2004 of Western Australia and as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia.  This reflects the judicial structure of the courts in Western Australia, where the Family Court of Western Australia has specialist family law magistrates/registrars who hold appointments as Magistrates of the Magistrates Court of Western Australia and as Registrars of the Family Court of Western Australia.

 



FINANCIAL IMPACT STATEMENT

 

These measures are not expected to have any significant financial impact.

 

CONSULTATION STATEMENT

 

The Bill has been subject to consultation with both the Family Court of Western Australia and the Family Court of Australia.  The amendments arise from the review of the workload and resources of the Family Court of Western Australia, involving extensive consultation with the Western Australian Department of Justice and the Family Court of Western Australia.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



JURISDICTION OF COURTS (FAMILY LAW) BILL 2005

 

NOTES ON CLAUSES

 

Clause 1          Short Title

 

1.                   This clause is a formal provision specifying the short title of the Act.

 

Clause 2          Commencement 

 

2.         This clause specifies when the clauses of, and the Schedule to, the Bill will commence.

 

3.         Subclause 2(1) provides that each provision of the Act specified in column 1 of the table in the subclause commences or is taken to have commenced on the day specified in column 2 of the table.

 

4.         Item 1 of the table in subclause 2(1) provides that sections 1 to 3 and anything in the Act not elsewhere covered in the table commences on the day the Act receives the Royal Assent.

 

5.         Item 2 of the table in subclause 2(1) provides that Schedule 1, Part 1 of the Act commences on a single day to be fixed by Proclamation.  However, if any of the provisions in Schedule 1, Part 1 do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

6.         Item 3 of the table in subclause 2(1) provides that item 83 in Schedule 1 commences immediately after the commencement of item 126 of Schedule 1 to the Family Law Amendment Act 2005, the date of which was 3 August 2005.

 

7.         Item 4 of the table in subclause 2(1) provides that item 29 in Schedule 1 commences immediately after the commencement of item 126 to the Family Law Amendment Act 2005, the date of which was 3 August 2005.

 

8.         Item 5 of the table in subclause 2(1) provides that item 30 in Schedule 1 commences immediately after the commencement of item 127 of the Family Law Amendment Act 2005, the date of which was 3 August 2005.

 

9.                   The note at the end of the table in subclause 2(1) confirms that the table relates only to the provisions of this Act as originally passed by the Parliament and assented to, and will not be expanded to deal with provisions inserted after assent.

 

10.               Subclause 2(2) provides that column 3 of the table in subclause 2(1) sets out additional information that does not form part of the Act.  As such, information in column 3 may be added to or edited in any published version of this Act.

 

 

 

 

Clause 3          Schedule(s)

 

11.               This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule and that any other item in a Schedule has effect according to its terms.

 

12.               Schedule 1 to the Act amends the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988 and the Family Law Act 1975 .

 

Schedule 1 - Amendments

 

Part 1 - Amendments relating to the Magistrates Court of Western Australia

 

NOTES ON ITEMS

 

Child Support (Assessment) Act 1989

 

Item 1             After subsection 102A(1)

 

13.               This item inserts new subsection 102A(1A) which provides for appeals to the Family Court.  The new subsection provides that appeals from a decree or decision of the Magistrates Court of Western Australia, constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under the Child Support (Assessment) Act 1989, will be to the Family Court. 

 

14.                           This mirrors the structure for appeals from Federal Magistrates.

 

Item 2             Subsections 102A(2), (4), (5), (6), (7) and (9)

 

15.               This item inserts a reference to new subsection 102A(1A) in subsections (2), (4), (5), (6), (7) and (9).  This amendment is consequential to the amendment made by item 1.

 

16.               The application of subsection 102A(2) to appeals from decisions of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, means that, like appeals from the Federal Magistrates Court, the appeal is to be heard by a Full Court of the Family Court unless the Chief Judge considers it appropriate to allow the appeal to be heard by a single Judge.

 

17.       If the appeal is heard by a single Judge, subsection 102A(11) provides that there is no appeal to a Full Court.  Any further appeal is to the High Court by leave.  Similar amendments have been made to appeals under the Child Support (Registration and Collection) Act 1988 (items 6 and 7) and the Family Law Act 1975 (items 20 and 22).

 

Item 3             At the end of section 103

 

18.       This item inserts new subsection 103(5).  The item ensures that, if in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia a question of law arises which the Magistrate and at least one of the parties wish to have determined by a Full Court of the Family Court, the Magistrate must prepare a special case for the opinion of the Full Court.  This mirrors requirements for the Federal Magistrates Court in relation to such matters.

 

Item 4             Before subsection 105(1)

 

19.     This item inserts new subsection 105(1A) to clarify that this section, which relates to appeals from courts of summary jurisdiction, does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

 

20.     The note at the end of section 105 clarifies that appeals from these decrees are dealt with in section 102A.

 

Child Support (Registration and Collection) Act 1988

 

Item 5             Subsection 4(1)

 

21.     Item 5 inserts a reference to ‘Family Law Magistrate of Western Australia’ into subsection 4(1), which provides that the term has the same meaning as in the Family Law Act 1975.   The new definition is defined in full at item 10.  The definition also applies to the Child Support (Assessment) Act 1989 by operation of section 6 of that Act.

 

Item 6             After subsection 107A(1)

 

22.       This item inserts new subsection 107A(1A) which provides for appeals to the Family Court.  The new subsection provides that appeals from a decree or decision of the Magistrates Court of Western Australia, constituted by a Family Law Magistrate of Western Australia, exercising original jurisdiction under the Child Support (Registration and Collection) Act 1988, will be to the Family Court.  This mirrors the structure of appeals from Federal Magistrates.

 

Item 7             Subsections 107A(2), (4), (5), (6), (7) and (9)

 

23.       This item inserts a reference to new subsection 107A(1A) in subsections (2), (4), (5), (6), (7) and (9).  This amendment is consequential to the amendment made by item 6.

 

Item 8             At the end of section 108

 

24.       This item inserts new subsection 108(5).  The item ensures that if in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia a question of law arises which the Magistrate and at least one of the parties wish to have determined by a Full Court of the Family Court, the Magistrate must prepare a special case for the opinion of the Full Court.  This mirrors requirements for the Federal Magistrates Court in relation to such matters. 



Item 9          Before subsection 110(1)

 

25.     This item inserts new subsection 110(1A) to clarify that this section, in relation to appeals from courts of summary jurisdiction, does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

 

26.     The note at the end of this item clarifies that appeals from these decrees are dealt with in section 107A.

 

Family law Act 1975

 

Item 10           Subsection 4(1)

 

27.     This item inserts a definition of ‘Family Law Magistrate of Western Australia’ into subsection 4(1).  A Family Law Magistrate of Western Australia is a person who holds office concurrently as a magistrate under the Magistrates Court Act 2004 of Western Australia and as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia. 

 

28.     The definition reflects the establishment of the Magistrates Court of Western Australia by the Magistrates Court Act 2004.  The Magistrates Court of Western Australia commenced operation on 2 May 2005 and is an amalgamation of the former Courts of Petty Sessions, the Local Court and the Small Claims Tribunal of Western Australia. 

 

29.     The definition also relates to a person holding office as Principal Registrar, or as a Registrar, of the Family Court of Western Australia.  The Family Court of Western Australia was established under section 41 of the Family Law Act and is the only State Family Court with federal jurisdiction in family law and child support matters.

 

Item 11           Subsection 39(7)

 

30.       This item repeals subsection 39(7) and substitutes new subsections 39(7) and 39(7AAA).  Section 39, which relates to jurisdiction in matrimonial causes, has been redrafted to reflect the way the corresponding section 69J (applications relating to children) is drafted.  Item 11 also inserts new paragraph 39(7AAA)(c).

 

31.       Subsection 39(7) provides that the Governor-General may, by Proclamation, fix a certain day on and after which proceedings in relation to matrimonial causes may not be instituted in or transferred to a court of summary jurisdiction in a specified State or Territory.  Subsection 39(7AAA) provides that the Proclamation under subsection 39(7) may be expressed to apply only in relation to one or more of the ways listed in paragraphs 39(7AAA)(a), (b) and (c), all of which refer to certain proceedings.

 

32.       New paragraph 39(7AAA)(c) relates to the third way of identifying the relevant proceedings for the purposes of the Proclamation, that is, in relation to proceedings in a court of summary jurisdiction constituted in a specified way.  The effect of this is to allow a Proclamation under subsection 39(7) to refer to the court of summary jurisdiction as the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

 

Item 12           Subsection 46(1)

 

33.       This item omits reference to “$20,000” and substitutes “the ceiling amount” for the total value of property in relation to proceedings instituted in a court of summary jurisdiction.  The “ceiling amount” is defined at new subsection 46(1AA), (inserted by item 14).  The ceiling amount relates to identifying those proceedings which must be transferred to an appropriate superior court where objections are made to the exercise of jurisdiction by the court of summary jurisdiction.

 

Item 13           After subsection 46(1)

 

34.     This item inserts new subsection 46(1AA) in relation to the “ceiling amount” for the purposes of subsection (1).  If the court of summary jurisdiction, for the purposes of subsection (1), is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, the ceiling amount is the amount specified in the regulations.  In the case of any other court of summary jurisdiction the ceiling amount is $20,000. 

 

Item 14           After subsection 46(2A)

 

35.       Item 14 inserts new subsection (2B).  The effect of this item is to distinguish the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia from other courts of summary jurisdiction in relation to the transfer of proceedings for a divorce order where the proceedings are defended.

 

Item 15           Subsection 69J(4)

 

36.       This item is consequential to the amendment in item 17 and reflects the addition of new paragraph (c) in subsection 69J(4).

 

Item 16           Paragraph 69J(4)(a)

 

37.       This item is consequential to the amendment in item 17 and reflects the addition of new paragraph (c) in subsection 69J(4).

 

Item 17            At the end of subsection 69J(4)

 

38.       This item adds new paragraph 69J(4)(c) in relation to a Proclamation under subsection 69J(3) pertaining to jurisdiction in childrens’ matters.  This mirrors a similar amendment inserted by item 11 pertaining to matrimonial causes. 

 

39.       Subsection 69J(3) provides that the Governor-General may, by Proclamation, fix a certain day after which proceedings in relation to childrens’ matters may not be instituted in or transferred to a court of summary jurisdiction in a specified State or Territory.  New paragraph 69J(4)(c) provides, in addition to the existing ways listed in subsection 69J(4), a further way of identifying the proceedings for the purposes of the Proclamation, that is, in relation to proceedings in a court of summary jurisdiction constituted in a specified way.  The effect of this is to allow a Proclamation under subsection 69J(3) to refer to the court of summary jurisdiction as the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

 

Item 18           Paragraph 69N(1)(a)

 

40.       This item excludes the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia from the operation of section 69N, relating to the transfer of proceedings from courts of summary jurisdiction.

 

41.       The effect of this item is to ensure that the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia is not one of the courts of summary jurisdiction where proceedings for certain parenting orders, where there is no consent between the parties, must be transferred to an appropriate superior court.

 

Item 19           Paragraph 93A(1)(aa)

 

42.       This item inserts a reference to new subsection 94AAA(1A), (inserted by item 20) in paragraph 93A(1)(aa) in relation to the appellate jurisdiction of the Family Court.  The effect of this item is that the Family Court has jurisdiction with respect to matters arising under the Family Law Act or under any other law in respect of which appeals referred to in certain other sections or subsections are instituted, including new subsection 94AAA(1A).

 

Item 20           After subsection 94AAA(1)

 

43.       This item inserts new subsection 94AAA(1A) after subsection (1) in relation to appeals to the Family Court of Australia. 

 

44.       The new subsection provides that appeals from a decree or decision of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, exercising original jurisdiction under the Family Law Act 1975 , will be to the Family Court.  This mirrors the appeal structure for the Federal Magistrates Court.

 

Item 21           Subsection 94AAA(2)

 

45.       This item amends subsection 94AAA(2) by inserting a reference to new subsection (1A), (inserted by item 20), to ensure that new subsection (1A) also has effect subject to section 94AA. 

 

46.       The effect of this amendment is that the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia is placed in the same position as the Federal Magistrates Court in relation to appeals.



Item 22           Subsections 94AAA (3), (5), (6), (7), (8) and (10)

 

47.       This item inserts a reference to new subsection (1A) in

subsections 94AAA (3), (5), (6), (7), (8) and (10).  This amendment is consequential to the amendment made by item 20.

 

Item 23           Subsection 94AA(1) (at the end of the table)

 

48.       This item adds a new item 5 to the table at subsection 94AA(1).  The purpose of the table is to set out clearly the circumstances in which leave to appeal is required.

 

49.       Item 5 of the table provides that an application for leave to appeal to the Family Court from a prescribed decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia is to be determined by a single Judge of the Family Court (who need not be a member of the Appeal Division) or a Full Court of the Family Court.

 

50.       The effect of this item is to place the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia in the same position as the Federal Magistrates Court in relation to leave to appeal.

 

Item 24           Subsection 94AA(2A)

 

51.       This item inserts a reference to subsection 94AAA(1A) in subsection 94AA(2A). This amendment is consequential to the amendment made by item 20.

 

Item 25           At the end of section 94A 

 

52.       This item inserts at the end of section 94A new subsection (5) which provides that if, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, a question of law arises which the Magistrate and at least one of the parties wish to have determined by a Full Court of the Family Court, the Magistrate must prepare a special case for the opinion of the Full Court. 

 

53.       This mirrors the requirements for the FMC in relation to such matters. 

 

Item 26           Before subsection 96(1)

 

54.     This item inserts new subsection (1AA) before subsection 96(1) to provide that this section, regarding appeals from courts of summary jurisdiction, does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.  A note at the end of new subsection 96(1AA) clarifies that appeals from these decrees are dealt with in new section 94AAA, as inserted by item 20.



Item 27           Application

 

55.     Sub-item (1) of this item provides that amendments made by items 3, 5, 8, 10 to 18 and 25 apply to proceedings instituted before or after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.  Commencement is set out in the table at clause 2.

 

56.     Sub-item (2) of this item provides that amendments made by items 1, 2, 4, 6, 7, 9, 19, 20 to 24 and 26, which all relate to appeal proceedings, apply to proceedings instituted after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.  Commencement is set out in the table at clause 2.

 

Part 2 - Technical amendments

 

Family Law Act 1975

 

Item 28            Paragraph 75(2)(g)

 

57.       This item is a technical amendment to omit ‘or’ in paragraph 75(2)(g), second occurring. 

 

Item 29           Subsection 104A(2)

 

58.       This item is a technical amendment to omit ‘or’ in subsection 104A(2), second occurring.

 

Item 30           Subsection 104A(3)

 

59.       This item is a technical amendment to omit ‘or’ in subsection 104A(3), second occurring.