Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Bill 1987
Download PDF ()
,-)
87/157
Legislative Research Service Department of the Parliamentary Library
Family Court of Australia
(Additional Jurisdiction and Exercise of Powers) Bill 1987
Date Introduced: 28 October 1987 House: House of Representatives Presented by: The Hon. Lionel Bowen, M.P., Attorney-General
Digest of Bill
Purpose To provide for the creation of Judicial Registrars of the Family Court of Australia; to expand the jurisdiction of courts of summary jurisdiction in family law matters; and to extend the jurisdiction of the
FCA to certain proceedings in administrative law, bankruptcy, income tax and consumer protection.
Background Section 71 of the Constitution gives the Commonwealth power to create federal courts, invested with federal jurisdiction. Parliament may make laws defining the jurisdiction of these courts and may also make laws investing State or Territory courts with federal jurisdiction (s.77(1) and 77(iii)).
The Family Law Act 1975 established the Family Court of Australia to administer the provisions of that Act and the Marriage Act 1961. Provision was made for the creation of federally funded State Family Courts to exercise both State and federal jurisdiction in family law.
Western Australia is the only State to have utilised this provision, creating the Family Court of Western Australia with the enactment of the Family Court Act, 1975 (W.A.). Appeals from the Family Court of Australia lie to the Full Court of the Family Court. which also hears appeals from Territory Supreme Courts and courts of summary jurisdiction (e.g. magistrates' courts) exercising jurisdiction under the Family Law Act. Appeals from decisions of the Family Court of Western Australia in State matters lie to the Full Court of the Supreme Court of Western Australia and. in other matters, to the Full Court of the Family Court.
In its Report to the Constitutional Commission, the Advisory Committee on the Australian Judicial System remarked on the number of submissions that pointed to problems associated with the Family Court. In particular, The Committee referred to the concern expressed by the judges of the FCA
-1-
about difficulties arising from 'the specialist functions of the Court which tend to isolate the profession and the judlciary:1 The Committee further observed that a large number of matters dealt with by the FCA are essentially routine, for example, uncontested applications.
Such matters do not, in the Committee's view, require the attention of a superior court, unlike child custody and property disputes, which do.2
Main Provisions Amendment of the Federal Court of Australia Act 1976.
Clause 4 will insert a new section 15A into this Act to enabie consultation between the Chief Judges on the transfer of proceedings from the Federal Court to the Family Court.
Amendments of the Family Law Act 1975.
A new Division 4 (sections 26A to 26N) will be inserted into this Act by clause 9 to deal with Judicial Registrars.
The Governor - General will be empowered to appoint Judicial Registrars of the Family Court (the Court) (proposed section 26A). Their powers will be delegated to them by the Rules of Court, made by a majority of the Judges, and will include powers that may be delegated to Registrars of the Court, and any other powers conferred by this Bill and the regulations (proposed section 26B). Decisions of Judicial Registrars made in the exercise of delegated power will be reviewable by the Court (proposed section 26C). Rules of Court will be subject to Parliamentary scrutiny and
disallowance (proposed section 26E).
To qualify for appointment as a Judicial Registrar, a person must have been a Judge of a federal or Supreme Court, or been enrolled as a legal practitioner of a Supreme Court or the High Court for not less than five years. In addition, the person's training, experience and personality
must render them suitable to deal with family law mailers (proposed section 26H).
The Governor - General may terminate the appointment of a Judicial Registrar for misbehaviour, or physical or mental incapacity. If a Judicial Registrar becomes bankrupt, or applies for relief as a debtor' under a bankruptcy or insolvency law, or makes any arrangement for the benefit of his or her creditors, termination of appointment will be
mandatory (proposed section 26L).
Clause 14 will insert a new sub - section 38(2A) into this Act which will exclude the application of Family Court practice and procedure to proceedings transferred from the Federal Court.
While proceedings for a decree of dissolution of marriage may not be instituted in a court of summary jurisdiction, they may be transferred to
-2-
()
CJ
a court of summary jurisdiction upon the request of the applicant (proposed section 44A which wili be inserted into the Principal Act by clause 16). However, if such proceedings are defended, they are to be returned to the Family Court or to a Supreme Court (proposed sub - section 46(2A) which will be inserted by clause 18).
The monetary limit on the jurisdiction of a court of summary jurisdiction in property proceedings will be Increased to the amount over which the court has jurisdiction in an action for the recovery of a debt. Where the parties consent, no such limit will apply. A court of summary jurisdiction will have jurisdiction in undefended applications for
dissolution of marriage. If a defence is entered, the matter is to be transferred to the Family Court (clause 18 which will amend section 46 of this Act).
Amendments of the Administrative Decisions (JUdicial Review) Act 1977, Bankruptcy Act 1966, Income Tax Assessment Act 1936, and Trade Practices Act 1974. .
":0) These amendments will empower the Federal Court to transfer certain proceedings pending in the Federal Court to the Family Court.
References
1. Report of the Advisory Committee to the Constitutionai Commission, Australian Judicial System, 1987, p.46. 2. Ibid., p,48.
For further information, if required, contact the Law and Government Group.
10 November 1987 Bills Digest Selvice
Legislative Research Selvice
() This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
© Commonwealth of Australia 1987
Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, inclUding information storage and retrieval system, without the prior written consent of the Department of the Parliamentary Library. Reproduction is permitted by Members of the Parliament of the Commonwealth in the course of their official duties.
-3-
'- j
(\
