FAMILY LAW AMENDMENT (VALIDATION OF CERTAIN ORDERS AND OTHER MEASURES) BILL 2012

i Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

Contents

1 Short

title

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2 Commencement

.................................................................................

3 Schedule(s)

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Schedule 1--Validation of certain orders

Part 1--Orders relating to de facto financial causes

Part 2--Orders on appeal from Family Law Magistrates of

Western Australia

Schedule 2--Amendments

Family Law Act 1975

Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 No.

, 2012 1

A Bill for an Act to validate certain orders etc.

under the Family Law Act 1975 and to amend that

Act, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Family Law Amendment (Validation

of Certain Orders and Other Measures) Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Validation of certain orders Schedule 1

Orders relating to de facto financial causes Part 1

Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 No.

, 2012 3

Schedule 1--Validation of certain orders

Part 1--Orders relating to de facto financial causes

1 Interpretation

(1)

In this Part:

affected order: see subitems 2(4) and (5).

assumed matters: see subitem 2(1).

court, except in items 5 and 6, has the same meaning as in the Family

Law Act 1975, and also includes a court exercising jurisdiction in

relation to a matter arising under this Part.

Family Court means the Family Court of Australia.

liability includes a duty, responsibility or obligation.

order includes a decree, judgement, declaration, injunction, direction or

other decision.

order-based rights or liabilities: see subitem 3(1).

Registrar means:

(a) a Registrar within the meaning of the Family Law Act 1975,

to the extent that his or her powers were or are exercised

under a delegation of the Family Court's powers under Rules

of Court made under section 37A of the Family Law Act

1975; or

(b) a Judicial Registrar appointed under section 26A of the

Family Law Act 1975, to the extent that his or her powers

were or are exercised under a delegation of the Family

Court's powers under Rules of Court made under section 26B

of that Act; or

Act 1999, to the extent that his or her powers were or are

exercised:

(i) under section 102 of that Act; or

(ii) under a delegation of the Federal Magistrates Court's

powers under Rules of Court made under section 103 of

that Act.

right includes an interest, status, power or authority.

Schedule 1 Validation of certain orders

Part 1 Orders relating to de facto financial causes

4 Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

(2)

Any other expression has the same meaning in this Part as in the Family

Law Act 1975.

2 Rights and liabilities of persons

(1)

Subject to subitem (3), the rights and liabilities of all persons are, by

force of this item, declared to be, and always to have been, the same as

if the following matters (the assumed matters) had been the case:

(a) a Proclamation had been made under subsection 40(2) of the

Family Law Act 1975 (as in force before the commencement

of this Part), fixing 1 March 2009 as the date on and after

which the jurisdiction of the Family Court under paragraph

31(1)(aa) of that Act could be exercised in the following

States and Territories:

(i)

New

South

Wales;

(ii)

Victoria;

(iii)

Queensland;

(iv)

Tasmania;

(v) the Australian Capital Territory;

(vi) the Northern Territory;

(vii)

Norfolk

Island;

(b) a Proclamation had been made under subsection 40(2) of the

Family Law Act 1975 (as in force before the commencement

of this Part), fixing 1 July 2010 as the date on and after which

the jurisdiction of the Family Court under paragraph

31(1)(aa) of that Act could be exercised in South Australia;

from the start of the date fixed by the Proclamation to the end

of 10 February 2012.

(2)

Without limiting the effect of subitem (1):

(a) all persons are, by force of this item, declared to be, and

always to have been, entitled to act on the basis that other

persons had, and have, the rights and liabilities as declared by

subitem (1); and

(b) a right or liability that a person is declared by subitem (1) to

have, or to have had:

(i) is exercisable or enforceable; and

(ii) is to be regarded as always having been exercisable or

enforceable;

Validation of certain orders Schedule 1

Orders relating to de facto financial causes Part 1

Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 No.

, 2012 5

as if the assumed matters had been the case; and

subitem (1) to have, or to have had, include any right the

person would have or have had, if the assumed matters had

been the case, to appeal, or to seek review of, an affected

order.

(3)

Subitem (1) does not apply to liabilities arising from a conviction (or

purported conviction), before the commencement of this Part, of a

person for an offence that relates to a de facto financial cause.

(4)

Subject to subitem (5), an affected order is:

(a) an order purportedly made, before 11 February 2012, by:

(i) the Family Court; or

(ii) the Federal Magistrates Court; or

(iii)

Registrar;

in the exercise of jurisdiction under the Family Law Act 1975

in respect of matters referred to in paragraph 31(1)(aa) or

subsection 39B(1) of that Act; or

(b) an award purportedly:

(i) made in section 13E arbitration, or in relevant property

or financial arbitration; and

(ii) registered in the Family Court, or the Federal

Magistrates Court, under section 13H of the Family Law

Act 1975 before 11 February 2012 in the exercise of

jurisdiction under the Family Law Act 1975 in respect of

matters referred to in paragraph 31(1)(aa) or subsection

39B(1) of that Act; or

Part, on appeal from, or review of, an order or award referred

to in paragraph (a) or (b) of this subitem.

(5)

If, before the commencement of this Part, a court or Registrar purported

to vary, revoke, set aside, revive or suspend an order or award referred

to in subitem (4), the affected order is that order or award in the form in

which, and to the extent to which, it purports or purported to have effect

from time to time.

Note:

If the affected order was declared or held to be invalid before the commencement of this

Part, this Part does not apply in relation to the order: see item 5.

Schedule 1 Validation of certain orders

Part 1 Orders relating to de facto financial causes

6 Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

3 Additional provisions relating to order-based rights or

liabilities

Item applies to order-based rights or liabilities

(1)

This item applies in relation to rights or liabilities (order-based rights

or liabilities):

(a) that a person is declared by item 2 to have; and

(b) that were purportedly conferred, imposed or affected by an

affected order.

New order made on basis that affected order was or might be

invalid

(2) If:

(a) before the commencement of this Part, a court or Registrar

made an order (the new order) on the basis that the affected

order was or might be invalid; and

(b) the new order:

(i) conferred or imposed rights or liabilities similar to or

different from those purportedly conferred or imposed

by the affected order; or

(ii) affected rights or liabilities in the same way as they

were purportedly affected by the affected order or in a

different way;

item 2 is to be regarded as having ceased to have effect, in relation to

the order-based rights or liabilities, when the new order took effect.

Note 1: If the affected order was declared or held to be invalid before the commencement of this

Part, this Part does not apply in relation to the order: see item 5.

Note 2: If the new order was made before 11 February 2012, the new order may itself be an

affected order that gives rise to order-based rights and liabilities.

Variation, revocation etc. of order-based rights or liabilities

(3) A

court or Registrar may vary, revoke, set aside, revive or suspend an

order-based right or liability in the same way as the court or Registrar

could do so if the assumed matters had been the case.

(4)

In addition to the powers of a court or Registrar under subitem (3), a

court or Registrar also has power to make an order achieving any other

result that could have been achieved if:

Validation of certain orders Schedule 1

Orders relating to de facto financial causes Part 1

Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 No.

, 2012 7

(a) the assumed matters had been the case; and

(b) the court or Registrar had been considering whether to vary,

revoke, set aside, revive or suspend the affected order.

Generality of item 2 not limited

(5)

Nothing in this item limits the generality of item 2.

4 Evidence

The court record, or a copy of the court record, of an affected order may

be adduced in evidence to show the existence, nature and extent of an

order-based right or liability.

5 Part does not apply to certain orders

Nothing in this Part applies to an order declared or held to be invalid, or

to have been made without power, by a court before the commencement

of this Part.

6 Jurisdiction of courts

(1)

Subject to subitem (3), jurisdiction is conferred on:

(a) the Family Court; and

(b) the Federal Magistrates Court; and

(d) each court of summary jurisdiction of each Territory;

with respect to matters arising under this Part.

(2)

Subject to subitem (3), each court of summary jurisdiction of each

referring State is invested with federal jurisdiction with respect to

matters arising under this Part.

(3)

A court only has jurisdiction with respect to a matter arising under this

Part if it has jurisdiction with respect to an equivalent matter arising

under the Family Law Act 1975. The court's jurisdiction under this Part

is subject to the same conditions and limitations as would apply to it in

dealing with the equivalent matter.

Schedule 1 Validation of certain orders

Part 2 Orders on appeal from Family Law Magistrates of Western Australia

8 Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

Part 2--Orders on appeal from Family Law

Magistrates of Western Australia

7 Interpretation

(1)

In this Part:

affected order: see subitems 8(4) and (5).

assumed matters: see subitem 8(1).

court, except in items 11 and 12, has the same meaning as in the Family

Law Act 1975, and also includes a court exercising jurisdiction in

relation to a matter arising under this Part.

Family Court means the Family Court of Australia.

liability includes a duty, responsibility or obligation.

order includes a decree, judgement, declaration, injunction, direction or

other decision.

order-based rights or liabilities: see subitem 9(1).

Registrar means:

(a) a Registrar within the meaning of the Family Law Act 1975,

to the extent that his or her powers were or are exercised

under a delegation of the Family Court's powers under Rules

of Court made under section 37A of the Family Law Act

1975; or

(b) a Judicial Registrar appointed under section 26A of the

Family Law Act 1975, to the extent that his or her powers

were or are exercised under a delegation of the Family

Court's powers under Rules of Court made under section 26B

of that Act; or

Act 1999, to the extent that his or her powers were or are

exercised:

(i) under section 102 of that Act; or

(ii) under a delegation of the Federal Magistrates Court's

powers under Rules of Court made under section 103 of

that Act; or

(d) the Principal Registrar, a deputy registrar or a registrar of the

Family Court of Western Australia, to the extent that his or

her powers were or are exercised under a delegation of that

Validation of certain orders Schedule 1

Orders on appeal from Family Law Magistrates of Western Australia Part 2

Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 No.

, 2012 9

Court's powers under rules made under section 33 of the

Family Court Act 1997 of Western Australia.

right includes an interest, status, power or authority.

(2)

Any other expression has the same meaning in this Part as in the Family

Law Act 1975.

8 Rights and liabilities of persons

(1)

Subject to subitem (3), the rights and liabilities of all persons are, by

force of this item, declared to be, and always to have been, the same as

if the following matters (the assumed matters) had been the case:

(a) a Proclamation had been made under subsection 40(2) of the

Family Law Act 1975 (as in force before the commencement

of this Part), fixing 1 July 2006 as the date on and after which

the jurisdiction of the Family Court under paragraph

93A(1)(aa) of that Act could be exercised, in Western

Australia, in respect of appeals under subsection 94AAA(1A)

of that Act;

(b) that Proclamation had been in force at all times from the start

of 1 July 2006 to the end of 20 October 2011.

(2)

Without limiting the effect of subitem (1):

(a) all persons are, by force of this item, declared to be, and

always to have been, entitled to act on the basis that other

persons had, and have, the rights and liabilities as declared by

subitem (1); and

(b) a right or liability that a person is declared by subitem (1) to

have, or to have had:

(i) is exercisable or enforceable; and

(ii) is to be regarded as always having been exercisable or

enforceable;

as if the assumed matters had been the case; and

subitem (1) to have, or to have had, include any right the

person would have or have had, if the assumed matters had

been the case, to appeal, or to seek review of, an affected

order.

(3)

Subitem (1) does not apply to liabilities arising from a conviction (or

purported conviction), before the commencement of this Part, of a

Schedule 1 Validation of certain orders

Part 2 Orders on appeal from Family Law Magistrates of Western Australia

10 Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

person for an offence that relates to proceedings on an appeal under

subsection 94AAA(1A).

(4)

Subject to subitem (5), an affected order is:

(a) an order purportedly made, before 21 October 2011, by the

Family Court in the exercise of jurisdiction under paragraph

93A(1)(aa) of the Family Law Act 1975 in respect of an

appeal under subsection 94AAA(1A) of that Act; or

(b) an order purportedly made, before the commencement of this

Part, on appeal from, or review of, an order referred to in

paragraph (a) of this subitem.

(5)

If, before the commencement of this Part, a court or Registrar purported

to vary, revoke, set aside, revive or suspend an order referred to in

subitem (4), the affected order is that order in the form in which, and to

the extent to which, it purports or purported to have effect from time to

time.

Note:

If the affected order was declared or held to be invalid before the commencement of this

Part, this Part does not apply in relation to the order: see item 11.

9 Additional provisions relating to order-based rights or

liabilities

Item applies to order-based rights or liabilities

(1)

This item applies in relation to rights or liabilities (order-based rights

or liabilities):

(a) that a person is declared by item 8 to have; and

(b) that were purportedly conferred, imposed or affected by an

affected order.

Variation, revocation etc. of order-based rights or liabilities

(2) A

court or Registrar may vary, revoke, set aside, revive or suspend an

order-based right or liability in the same way as the court or Registrar

could do so if the assumed matters had been the case.

(3)

In addition to the powers of a court or Registrar under subitem (2), a

court or Registrar also has power to make an order achieving any other

result that could have been achieved if:

(a) the assumed matters had been the case; and

Validation of certain orders Schedule 1

Orders on appeal from Family Law Magistrates of Western Australia Part 2

Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 No.

, 2012 11

(b) the court or Registrar had been considering whether to vary,

revoke, set aside, revive or suspend the affected order.

Generality of item 8 not limited

(4)

Nothing in this item limits the generality of item 8.

10 Evidence

The court record, or a copy of the court record, of an affected order may

be adduced in evidence to show the existence, nature and extent of an

order-based right or liability.

11 Part does not apply to certain orders

Nothing in this Part applies to an order declared or held to be invalid, or

to have been made without power, by a court before the commencement

of this Part.

12 Jurisdiction of courts

(1)

Subject to subitem (3), jurisdiction is conferred on:

(a) the Family Court; and

(b) the Federal Magistrates Court; and

(d) each court of summary jurisdiction of each Territory;

with respect to matters arising under this Part.

(2)

Subject to subitem (3):

(a) the Family Court of Western Australia; and

(b) each court of summary jurisdiction of each State;

is invested with federal jurisdiction with respect to matters arising under

this Part.

(3)

A court only has jurisdiction with respect to a matter arising under this

Part if it has jurisdiction with respect to an equivalent matter arising

under the Family Law Act 1975. The court's jurisdiction under this Part

is subject to the same conditions and limitations as would apply to it in

dealing with the equivalent matter.

Schedule 2 Amendments

12 Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012

No. , 2012

Schedule 2--Amendments

Family Law Act 1975

1 Section 40 (heading)

Repeal the heading, substitute:

40 Limitations on jurisdiction of Family Court and of State and

Territory Supreme Courts

2 Subsections 40(1) and (2)

Repeal the subsections, substitute:

(1) The regulations may provide that, from a date specified in the

regulations (not being a date before the regulations are registered

under the Legislative Instruments Act 2003), the jurisdiction of the

Family Court under this Act in relation to all proceedings, or a

specified class of proceedings, must not be exercised in a specified

State or Territory, or in 2 or more specified States and Territories.

3 Subsection 40(5)

Omit "subsections (2) and (3)", substitute "subsection (3)".

4 Application of amendments

The amendments made by this Schedule apply in relation to the exercise

of jurisdiction after the commencement of this Schedule (even if the

proceedings in which the jurisdiction is exercised were initiated before

that commencement).

Commonwealth of Australia Bills

FAMILY LAW AMENDMENT (VALIDATION OF CERTAIN ORDERS AND OTHER MEASURES) BILL 2012