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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Family Court
of Western Australia (Orders of Registrars) Bill
1997
No. ,
1997
(Attorney-General)
A
Bill for an Act relating to certain ineffective orders of Registrars of the
Family Court of Western Australia
9707220—899/26.5.1997—(72/97) Cat. No. 96
7775 5 ISBN 0644 502940
Contents
A Bill for an Act relating to certain ineffective orders
of Registrars of the Family Court of Western Australia
The Parliament of Australia enacts:
This Act may be cited as the Family Court of Western Australia (Orders
of Registrars) Act 1997.
This Act commences on the day on which it receives the Royal
Assent.
In this Act:
corresponding Western Australian Act means the Family
Court (Orders of Registrars) Act 1997 of Western Australia.
federal family jurisdiction means jurisdiction
under:
(a) the Family Law Act 1975; or
(b) the Child Support (Registration and Collection) Act 1988;
or
(c) the Child Support (Assessment) Act 1989.
ineffective order has the meaning given by section
4.
liability includes a duty or obligation.
parenting plan means a parenting plan under the Family Law
Act 1975.
proceedings includes an initiating application.
proceedings for the order means:
(a) in relation to an ineffective order of the kind referred to in
subsection 4(2)—the proceedings in or in relation to which the order was
purportedly made; and
(b) in relation to provisions of a parenting plan that are an ineffective
order of the kind referred to in subsection 4(3)—the proceedings that
would have been constituted by the application to register the parenting plan if
it had instead been an application to the Family Court of Western Australia for
an order of the relevant kind under the Family Law Act 1975 and the
parties to the plan had been parties to that application.
Registrar has the meaning it had in the Family Court Act
1975 of Western Australia as in force immediately before the commencement of
the corresponding Western Australian Act.
registration decision, in relation to an ineffective order of
the kind referred to in subsection 4(3), means the Registrar’s decision to
register the parenting plan as mentioned in that subsection.
right includes an interest or status.
(1) A reference in this Act to an ineffective order is a
reference to a purported order described in subsection (2), or provisions of a
parenting plan described in subsection (3). This has effect subject to
subsections (4) and (5) as they affect the meaning of a reference to an
ineffective order in the context of a particular case.
(2) An order that a Registrar has purported to make, before the
commencement of the corresponding Western Australian Act, is an
ineffective order if it was made:
(a) in the exercise or purported exercise of the federal family
jurisdiction of the Family Court of Western Australia; and
(b) by way of a judicial determination that was not reviewable (otherwise
than on appeal).
(3) Provisions of a parenting plan that a Registrar has purported to
register under section 63E of the Family Law Act 1975, before the
commencement of the corresponding Western Australian Act, are an
ineffective order if they would have had effect under section 63F
or 63G of the Family Law Act 1975 as a particular kind of order if the
decision to register the plan had been a decision made by the Family Court of
Western Australia.
(4) If a court has purported to vary, revoke, set aside, revive or suspend
an ineffective order, the reference is, subject to subsection (5), a reference
to the order in the form in which, and to the extent to which, it purports or
purported to have effect from time to time.
Note 1: In the case of an ineffective order of the kind
referred to in subsection 4(3), this subsection applies to a purported
variation, revocation, setting aside, revival or suspension of provisions of the
parenting plan as they had effect as an order (rather than a purported
variation, revocation, setting aside, revival or suspension of the provisions as
provisions of an agreement).
Note 2: This subsection applies if a court has proceeded on
the basis that an ineffective order was valid. The situation where a court has
proceeded on the basis that an ineffective order was or might have been invalid
is dealt with in section 8.
(5) If clause 2 of Schedule 2 to the Family Law Reform Act 1995
would have applied to an ineffective order if it had been an order made by
the Family Court of Western Australia in the exercise of its federal family
jurisdiction, then, so far as the reference relates to a time after the
commencement of that Schedule, it is, subject to subsection (4), a reference to
the order as it would have, or would have had, effect if that clause applied to
it.
(1) The rights and liabilities of all persons are, by force of this Act,
declared to be, and always to have been, the same as if each ineffective order
had been an order made by the Family Court of Western Australia in the exercise
of its federal family jurisdiction in or in relation to the proceedings for the
order.
(2) Subsection (1) has effect in relation to an ineffective order of the
kind referred to in subsection 4(3) subject to the same conditions and
limitations as apply under the Family Law Act 1975 in relation to
provisions of registered parenting plans having effect as orders.
Note: See, for example, the conditions and limitations
specified in sections 63F and 63G of the Family Law Act
1975.
(1) A right or liability conferred, imposed or affected by section
5:
(a) is exercisable or enforceable; and
(b) is to be regarded as always having been exercisable or
enforceable;
as if it were a right or liability conferred, imposed or affected by an
order made by the Family Court of Western Australia, in the exercise of its
federal family jurisdiction, in or in relation to the proceedings for the
order.
(2) Subsection (1) has effect in relation to an ineffective order of the
kind referred to in subsection 4(3) subject to the same conditions and
limitations as apply under the Family Law Act 1975 in relation to
provisions of registered parenting plans having effect as orders.
Note: See, for example, the conditions and limitations
specified in sections 63F and 63G of the Family Law Act
1975.
(3) In this section:
enforceable includes able to be dealt with by proceedings
under Division 2 of Part XIIIA of the Family Law Act 1975 relating to a
contravention of an order.
Any act or thing done or omitted to be done before or after the
commencement of this Act under or in relation to a right or liability conferred,
imposed or affected by section 5 of this Act, or the equivalent provision of the
corresponding Western Australian Act:
(a) has the same effect, and gives rise to the same consequences, for the
purposes of any written or other law; and
(b) is to be regarded as always having had the same effect, and given rise
to the same consequences, for the purposes of any written or other
law;
as if it were done or omitted to be done to give effect to, or under the
authority of, or in reliance on:
(c) an order made by the Family Court of Western Australia, in the
exercise of its federal family jurisdiction, in or in relation to the
proceedings for the order; or
(d) an order made by the Family Court of Western Australia in or in
relation to the proceedings referred to in the equivalent provision of the
corresponding Western Australian Act;
as the case requires.
(1) If:
(a) before the commencement of this Act, a court, in the exercise of its
federal family jurisdiction, made an order (the new order) on the
basis that an ineffective order of the kind referred to in subsection 4(2) was
or might be invalid; and
(b) the new order replaced the ineffective order (see subsection
(2));
section 5 is to be regarded as having ceased to have effect in respect of
the ineffective order when the new order took effect.
(2) For the purposes of subsection (1), the new order replaced the
ineffective order if the new order:
(a) conferred or imposed rights or liabilities similar to or different
from those purportedly conferred or imposed by the ineffective order;
or
(b) affected rights or liabilities in the same way as they were
purportedly affected by the ineffective order or in a different way.
(3) If:
(a) before the commencement of this Act, a court, in the exercise of its
federal family jurisdiction, made an order or decision (the new order or
decision) on the basis that the registration decision in relation to an
ineffective order of the kind referred to in subsection 4(3) was or might be
invalid; and
(b) the new order or decision replaced the ineffective order (see
subsection (4));
section 5 is to be regarded as having ceased to have effect in respect of
the ineffective order when the new order or decision took effect.
(4) For the purposes of subsection (3), the new order or decision replaced
the ineffective order if:
(a) it was an order:
(i) conferring or imposing rights or liabilities similar to or different
from those purportedly conferred or imposed by the ineffective order;
or
(ii) affecting rights or liabilities in the same way as they were
purportedly affected by the ineffective order or in a different way;
or
(b) it was a decision to register the same or a different parenting plan
under section 63E of the Family Law Act 1975.
(1) A court may vary, revoke, set aside, revive or suspend a right or
liability conferred, imposed or affected by section 5 as if it were a right or
liability conferred, imposed or affected by an order made by the Family Court of
Western Australia in the exercise of its federal family jurisdiction in or in
relation to the proceedings for the order.
(2) In addition to its powers under subsection (1), a court also has power
to make an order achieving any other result that could have been achieved
if:
(a) the ineffective order had been an order made by the Family Court of
Western Australia in the exercise of its federal family jurisdiction in or in
relation to the proceedings for the order; and
(b) the court had been considering whether to vary, revoke, set aside,
revive or suspend that order.
(3) This section has effect in relation to an ineffective order of the
kind referred to in subsection 4(3) subject to the same conditions and
limitations as apply under the Family Law Act 1975 in relation to
provisions of registered parenting plans having effect as orders.
Note: See, for example, the conditions and limitations
specified in sections 63F and 63G of the Family Law Act
1975.
The court record, or a copy of the court record, of:
(a) an ineffective order of the kind referred to in subsection 4(2);
or
(b) the registration decision in relation to an ineffective order of the
kind referred to in subsection 4(3);
may be adduced in evidence to show the existence, nature and extent of each
right or liability conferred, imposed or affected by section 5.
Nothing in this Act applies to an order declared to be invalid by the
Full Court of the Family Court before the commencement of the corresponding
Western Australian Act.
(1) Subject to subsection (3), jurisdiction is conferred on the Family
Court and the Supreme Court of the Northern Territory, and the Family Court of
Western Australia is invested with federal jurisdiction, with respect to matters
arising under this Act.
(2) Subject to subsection (3), each court of summary jurisdiction of each
State is invested with federal jurisdiction, and jurisdiction is conferred on
each court of summary jurisdiction of each Territory, with respect to matters
arising under this Act.
(3) A court only has jurisdiction in respect of a matter arising under
this Act if it has jurisdiction in respect of an equivalent matter arising under
the Family Law Act 1975, the Child Support (Registration and
Collection) Act 1988 or the Child Support (Assessment) Act 1989, as
the case requires. The court’s jurisdiction under this Act is subject to
the same conditions and limitations as would apply to it in dealing with the
equivalent matter.