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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.
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.
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)
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.
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)
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)
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.
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)
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.
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)
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)
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.
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)
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.
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.
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)
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)
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
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.
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.