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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY LAW AMENDMENT (VALIDATION OF CERTAIN ORDERS AND OTHER
MEASURES) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Honourable Nicola Roxon MP)
FAMILY LAW AMENDMENT (VALIDATION OF CERTAIN
ORDERS AND OTHER MEASURES) BILL 2012
Outline
The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012
(the Bill) creates new statutory rights and liabilities for all persons who have been affected by two
Proclamations not having been made under subsection 40(2) of the Family Law Act 1975 (the
Family Law Act). This will provide individuals with certainty around the effect of their orders and
put them in the same position as if the Proclamations had been made at the correct time.
The Family Law Act provides that the Family Court of Australia can only validly exercise its
jurisdiction following a conferral of jurisdiction and a valid Proclamation under subsection 40(2) of
the Family Law Act being made. The jurisdiction in relation to de facto financial causes was
conferred on the Family Court of Australia by the Family Law Amendment (De Facto Financial
Matters and Other Measures) Act 2008. That conferral commenced on 1 March 2009 for each State
and Territory (except South Australia and Western Australia) under paragraph 31(1)(aa) of the
Family Law Act. The jurisdiction commenced on 1 July 2010 in respect of South Australia.
Western Australia has not referred its powers in respect of de facto financial causes to the
Commonwealth. A Proclamation under subsection 40(2) was not made in 2009 but has been made
more recently, setting 11 February 2012 as the date on and after which the Family Court of
Australia could exercise this jurisdiction.
Likewise, the same Act conferred jurisdiction on the Federal Magistrates Court of Australia in
respect of de facto financial causes with the same commencement dates as for the Family Court of
Australia. By operation of section 40A of the Family Law Act, the Federal Magistrates Court of
Australia was unable to exercise its jurisdiction until the Family Court of Australia could validly do
so.
There was also a delay in making a Proclamation under subsection 40(2) of the Family Law Act to
fix a date on and after which jurisdiction could be exercised by the Family Court of Australia in
relation to appeals from decisions or decrees of Family Law Magistrates in Western Australia under
paragraph 93A(1)(aa) of the Family Law Act. This jurisdiction was conferred on the Family Court
of Australia by the Jurisdiction of Courts (Family Law) Act 2006 which commenced on 1 July
2006. A Proclamation has since been made to fix the date of 21 October 2011 as the date on and
from which the Family Court of Australia was allowed to exercise this jurisdiction in Western
Australia.
Schedule 1 of the Act provides for the conferral of statutory rights and liabilities on persons who
had sought and were granted orders (or purported orders) by the Family Court of Australia or the
Federal Magistrates Court of Australia in the de facto financial causes jurisdiction and the relevant
appellate jurisdiction of the Family Court of Australia between the date the jurisdiction was
conferred and when the subsection 40(2) Proclamations were made. Schedule 1 contains two Parts.
The first relates to the de facto financial causes jurisdiction, the second to the appellate jurisdiction
of the Family Court of Australia to hear appeals from Family Law Magistrates in Western Australia.
Both parts confer rights and liabilities so as to put persons in the same position they would have
been if the Proclamations had been made at the time of conferral of jurisdiction. Each Part then
confers jurisdiction on relevant courts to be able to take action to alter those rights and liabilities
after the Act commences. This will allow affected individuals to seek court orders to alter those
rights and liabilities in the same way they would have been able to if the original orders had been
validly made.
The approach in the Act draws on precedent Commonwealth validation legislation first upheld by
the High Court of Australia in 1973. The approach has been followed in other legislation, most
recently in the Family Law Amendment (Validation of Certain Parenting Orders and Other
Measures) Act 2010, which addressed concerns arising from the High Court's decision in MRR v
GR [2010] HCA 4.
Schedule 2 of the Act repeals subsections 40(1) and (2) of the Family Law Act to remove the
requirement that, in addition to the conferral of jurisdiction on the Family Court of Australia, a
Proclamation needs to be made to set the date from when that jurisdiction can be exercised. As
these Proclamations had been used to restrict the exercise of certain types of jurisdiction in certain
States and Territories, a power to make regulations will be inserted into the Family Law Act to
allow for the making of regulations to restrict the exercise of jurisdiction in appropriate
circumstances, for example, where there is a State Family Court established and recognised under
section 41 of the Family Law Act. In contrast to the current requirement which requires a
Proclamation in addition to the conferral of jurisdiction, the new requirement will allow the Family
Court of Australia to exercise jurisdiction once validly conferred, allowing for that to be restricted if
regulations are then made.
Financial Impact
The amendments in this Bill have negligible financial implications.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill provides certainty to the status of certain family law orders that have been made in the absence of
Proclamations permitting the exercise of jurisdiction under the Family Law Act 1975 ("the Act"). These
orders are of the Family Court of Australia and the Federal Magistrates Court in respect to de facto property
matters and orders of the Family Court of Australia made on appeals from Family Law Magistrates in
Western Australia (WA).
In 2008, the Act was amended by the Family Law Amendment (De Facto Financial Matters and Other
Measures) Act 2008 to provide for opposite-sex and same-sex de facto couples to access the federal family
law courts on property and maintenance matters. A Proclamation was not made at this time, as required by
section 40 of the Act, to set the date from which the Family Court of Australia can exercise this jurisdiction.
Section 40A has the effect that the de facto property jurisdiction cannot be exercised by the Federal
Magistrates Court until it can be validly exercised by the Family Court of Australia. A Proclamation has
since been made fixing 11 February 2012 as the date on and after which the jurisdiction of the Family Court
of Australia in respect to de facto financial matters can be exercised. This will provide certainty for the
exercise of this jurisdiction in both the Family Court of Australia and the Federal Magistrates Court into the
future.
A similar issue surrounds some appeals from Family Law Magistrates in WA. In 2006, the Jurisdiction of
Courts (Family Law) Act 2006 made amendments to the Act to provide for appeal rights to the Family Court
of Australia from various decrees and decisions of Family Law Magistrates in WA. A Proclamation was not
made at this time to allow the Family Court to exercise jurisdiction to hear these appeals. A Proclamation
has since been made setting 21 October 2011 as the date on and after which the Family Court of Australia
can exercise this jurisdiction.
The purpose of the Bill is to provide certainty to individuals who have orders that were made before the
respective Proclamations. This will be done by creating new statutory rights and liabilities that mirror the
rights and liabilities that would have been created if Proclamations had been made at the time that
jurisdiction was originally conferred.
Human rights implications
The Bill engages the following human rights:
Right to a fair trial
The right to a fair trial is protected in Article 14 of the International Covenant on Civil and Political Rights
(ICCPR). Article 14 is aimed at ensuring the proper administration of justice, which includes the right to
equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent
and impartial tribunal established by law.
The right to a fair trial will not be prejudiced by the amendments in this Bill. The Bill provides that
the new rights and liabilities created by the Bill will be able to be relied upon, in exactly the same
way as if the orders had been validly made. The Bill also preserves the right to appeal against, or to
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apply for the review of an affected order and the right to vary affected orders in later court
proceedings. In addition, if an order has been found to be invalid prior to the commencement of the
Bill, the Bill preserves the findings of invalidity of any order.
Prohibition on retrospective criminal laws
The prohibition on retrospective criminal laws is contained in Article 15 of the ICCPR. Article 15
provides that no one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence, under national or international law, at the time when it
was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time
when the criminal offence was committed.
This Bill protects against prosecution for retrospective criminal offences as it provides that if,
before the commencement of the Bill, a court purported to convict a person of an offence, nothing
in the Bill is to be taken to validate or confirm that conviction. In effect, while the Bill will be
putting individuals in the same place they would have been if the relevant Proclamations had been
made on time, it does not do so in respect of convictions for offences which stem from the making
of court orders which the court did not have power to make.
Conclusion
The Bill corrects a technical defect and promotes legal certainty. It does not limit any of the
applicable rights and freedoms and is compatible with human rights.
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NOTES ON CLAUSES
Clause 1: Short title
The short title for the Bill, once enacted, will be the Family Law Amendment (Validation of Certain
Orders and Other Measures) Act 2012.
Clause 2: Commencement
2. Clause 2 provides for the commencement of this Act. Sections 1 to 3 will commence on the
day the Act receives the Royal Assent. Schedule 1 will commence on the day after the Act receives
the Royal Assent.
3. Schedule 2 will commence on a single day to be fixed by Proclamation. However, if the
provisions do not commence within the period of six months beginning on the day the Act received
the Royal Assent, the provisions commence on the day after the end of that period. This is required
to enable the making of Regulations in accordance with item 2 of Schedule 2.
Clause 3: Schedules
4. Clause 3 provides that each Act specified in a Schedule to the Bill will be amended or
repealed as set out in the Schedules. This clause also provides that each other item in the Bill is to
have effect according to its terms.
SCHEDULE 1 - VALIDATION OF CERTAIN ORDERS
PART 1 - ORDERS RELATING TO DE FACTO FINANCIAL CAUSES
Item 1: Interpretation
5. Item 1 defines a number of terms used in Part 1, namely, affected order, assumed matters,
court, liability, order, order-based rights or liabilities, Registrar and right.
· affected order is defined by reference to subitems 2(4) and (5). The term is used in this Part
in items 2, 3 and 4;
· assumed matters is defined by reference to subitem 2(1). The term is used in this Part in
items 2 and 3;
· court is defined as a court within the meaning of section 4 of the Family Law Act 1975. The
definition also extends to include a court exercising jurisdiction in relation to a matter under
this Part. The term is used in this Part in items 2, 3 and 4. A reference to a court in items 5
and 6 is not restricted to this definition and is intended to capture any court;
· liability is defined as including a duty, responsibility or obligation. The term is used in this
Part in items 2, 3 and 4;
· order is defined as including a decree, judgement, declaration, injunction, direction or other
decision. The term is used in this Part in items 2, 3, 4 and 5. An order referred to in this
Part is to be broadly interpreted to include any decision of a court in the exercise, or
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purported exercise, of the de facto financial causes jurisdiction. In this jurisdiction, courts
have powers to make a wide range of decisions leading up to, and including, the final
decision. These include, but are not limited to, orders, declarations, injunctions
(interlocutory or otherwise), decrees, stays, notifications and referral of proceedings for
arbitration.
· order-based rights or liabilities is defined by reference to subitem 3(1). The term is used in
this Part in items 3 and 4;
· Registrar is defined to cover Registrars and Judicial Registrars to the extent that their
powers were or are exercised by them under a delegation under the Family Law Rules 2004
or the Federal Magistrates Court Rules 2001 or a direction given under section 102 of the
Federal Magistrates Act 1999. The definition is in these terms to ensure that Registrars and
Judicial Registrars have powers under Part 1 only to the extent of powers conferred on them
by delegation or direction. This recognises that the orders affected by the absence of a
Proclamation permitting the exercise of certain jurisdiction under the Family Law Act may
have included orders of Registrars or Judicial Registrars. The definition also reflects that a
delegation given to Registrars may change from time to time which will flow on to any
powers they might have by virtue of this Act.
· right is defined as including an interest, status, power or authority. The term `right' is
intended to be read broadly. The term is used in this Part in items 2 and 3.
6. Item 1(2) provides that any other expression in Part 1 is taken to have the same meaning as
in the Family Law Act.
Item 2: Rights and liabilities of persons
7. This item creates new statutory rights and liabilities identical to those that would have been
derived from orders if a Proclamation under subsection 40(2) of the Family Law Act had been made
at the time the de facto financial causes jurisdiction was conferred on the Family Court of Australia.
8. Item 2 also defines the additional key terms of `assumed matters' and `affected order' used
in Part 1.
9. Subitem 2(1) defines `assumed matters'. The `assumed matters' include a Proclamation
having been made under subsection 40(2) of the Family Law Act fixing 1 March 2009 as the date
on and after which jurisdiction of the Family Court of Australia under paragraph 31(1)(aa) of the
Family Law Act could be exercised in each of the States and Territories, except South Australia and
Western Australia, and that Proclamation had been in force at all times from 1 March 2009 to the
end of 10 February 2012.
10. The definition of `assumed matters' also includes a Proclamation having been made under
subsection 40(2) of the Family Law Act fixing 1 July 2010 as the date on and after which
jurisdiction of the Family Court of Australia under paragraph 31(1)(aa) of the Family Law Act
could be exercised in South Australia (subitem 2(1)(b)), and that Proclamation had been in force at
all times from 1 July 2010 to the end of 10 February 2012. This reflects the later date on which
South Australia referred its power with respect to de facto financial causes to the Commonwealth.
11. Western Australia is not listed as it has not referred its jurisdiction with respect to de facto
financial causes to the Commonwealth.
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12. Subitem 2(1) creates new statutory rights and liabilities by providing that the rights and
liabilities of all persons are the same as if the `assumed matters' had been the case. This subitem
refers to all persons and is not intended to be read down to only the parties to the de facto financial
cause proceeding. The provision is intended to be broad in its application to reflect the range of
circumstances that can arise in property and maintenance proceedings involving de facto parties,
including, for example, the interests of a bankruptcy trustee whose interests in the vested
bankruptcy property may be altered by the court under subsection 90SM(1)(b) of the Family Law
Act. The provision will give all persons the rights and liabilities they would have had if the
`assumed matters' had been the case. The provision is the principal provision of the Part, putting all
persons in the position they would have been in if the subsection 40(2) Proclamation had been made
at the time the de facto financial causes jurisdiction was conferred on the Family Court of Australia.
13. Subitem 2(2) provides a non-exhaustive list of the things that people are entitled to do or
have done in relation to the rights and liabilities conferred under subitem 2(1). This includes that all
persons are entitled to act as though the rights and liabilities have always existed.
14. In particular, this subitem confirms that protection is given, not only to the parties to the
proceedings, but to third parties who may have taken action on the belief that the orders had been
made within power. The item will ensure that any person or organisation who has acted, or omitted
to act, in reliance on the validity of an `affected order' will not be adversely affected by such
reliance. For example, this subitem covers a third party who purchased property from an individual
who was granted a sole interest in that property under a court order (purportedly made in the de
facto financial causes jurisdiction). This subitem protects the third party and the parties to the
proceedings from any claim against that property as a result of the invalidity affecting the de facto
financial causes proceedings as a result of the lack of subsection 40(2) Proclamation.
15. The subitem also provides that those rights and liabilities are exercisable and enforceable by
all persons as if the `assumed matters' had been the case. For the avoidance of doubt, the provision
specifically includes reference to any right to appeal, or right to apply for a review of, an `affected
order' (paragraph 2(2)(c)).
16. Subitem 2(3) prevents subitem 2(1) from operating to validate a conviction for an offence
which relates to a de facto financial cause and where the conviction (or purported conviction)
occurred before the commencement of this part. This provides for a narrow exemption to the broad
effect achieved by subitem 2(1), providing for individuals to be put in the same position they would
have been if the subsection 40(2) Proclamation had been made at the right time. This narrow
exemption only applies to convictions for an offence, that is a criminal offence, and is required to
ensure the Act does not usurp the prior exercise of judicial power in relation to those convictions.
17. Subitem 2(4) defines an `affected order'. It is expressed to be subject to subitem 2(5) which
provides for the possible impact of later orders on an `affected order'.
18. An `affected order' is defined as an order purportedly made by the Family Court of
Australia or the Federal Magistrates Court of Australia or a Registrar of one of these courts before
11 February 2012 in the exercise of its jurisdiction with respect to de facto financial causes under
paragraph 31(1)(aa) and subsection 39B(1) of the Family Law Act. Subsection 39B(1) is the
provision which confers jurisdiction on the Federal Magistrates Court, although paragraph (a)
duplicates the conferral of jurisdiction provided to the Family Court of Australia by paragraph
31(1)(aa) of the Family Law Act.
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19. The provision defines `affected order' by reference to the jurisdictions of the courts that
were affected by the absence of a Proclamation having been made under subsection 40(2) of the
Family Law Act, and the effect of the operation of section 40A of the Family Law Act. Given that
section 39B of the Family Law Act confers de facto financial causes jurisdiction on several courts,
this definition is designed to ensure that the operative provisions in the Bill do not apply to orders
made by courts, in the exercise of their de facto financial causes jurisdiction, that have not been and
are not affected by the absence of a subsection 40(2) Proclamation.
20. The definition of `affected order' under subitem 2(4)(b) covers an arbitrated award
registered under section 13H of the Family Law Act where this is done in the exercise of the court's
de facto financial causes jurisdiction. A decision to refer parties to arbitration in Part VIIIAB
proceedings, made under section 13E of the Family Law Act, and the range of decisions a court
may make under sections 13F, 13G and 13K of the Family Law Act would be covered by the
definition set out in subitem 2(4)(a).
21. Subitem 2(4)(c) provides that the definition of `affected order' also includes an order made
on appeal from, or review of, an order or reward referred to in subitems 2(4)(a) and (b). The
provision will ensure that any decision of a court on appeal from, or review of, an order or reward
referred to in subitems 2(4)(a) and (b) is also an `affected order', if the appeal or review order was
made before the commencement of the Act. This definition would also include a review of a
registered award under section 13J of the Family Law Act.
22. Subitem 2(5) provides that where an `affected order' has, before the commencement of this
Part, been varied, revoked, set aside, revived or suspended, the `affected order' is defined as that
order or award in the form impacted by the later order or orders. The provision will ensure that the
same rights and liabilities as are conferred under subitem 2(1) are able to be altered by a court after
the commencement of this Part. However, if the later orders were made on the basis that the
affected order might have been invalid, subitem 3(2) applies rather than subitem 2(5).
23. A reference to a court or Registrar in this provision includes a court and Registrar defined in
the Act. As such, the definition of `affected order' reflects that an `affected order' could have been
varied, revoked, set aside, revived or suspended by any court exercising jurisdiction with respect to
de facto financial causes, including those which were not affected by the absence of a subsection
40(2) Proclamation. For example, where a court other than the Family Court of Australia or the
Federal Magistrates Court of Australia purported to vary an order of the Federal Magistrates Court
of Australia relating to a maintenance order made under subsection 90SE(1) of the Family Law Act,
subitem 2(5) will ensure that that the maintenance rights and obligations of the parties are as
amended by the second order.
24. The Note in item 2 assists the reader to understand that item 2 is subject to item 5 in the
Part. Therefore, item 2 will not apply to an `affected order' that was specifically declared or held to
be invalid before the commencement of Part 1. It is included so as to direct a reader to item 5,
which if invoked, will provide that the rest of Part 1 does not apply.
Item 3: Additional provisions relating to order-based rights or liabilities
25. Subitem 3(1) defines the term `order-based rights or liabilities' as those rights or liabilities a
person is declared by item 2 of the Act to have and that were purportedly conferred, imposed or
affected by an `affected order'. This term is used in this item to provide for a court or Registrar to
be able to alter those rights or liabilities after the commencement of this Part.
8
26. Subitem 3(2) will result in subitem 2(1) ceasing to have effect when a `new order' is made
by a court or Registrar on the basis that the `affected order' was, or might be, invalid. This allows
for the possibility that `new orders' might have been made by a court or Registrar on the
understanding that the earlier orders might have been invalid but without the court or Registrar
having made a specific declaration or order to that effect. Subitems 2(b)(i) and (ii) provide for the
new order to be either in the same terms as the `affected order' or in different terms, reflecting the
possibility that a court, or the parties in the case of consent orders, may have decided to change the
rights and liabilities to reflect changing circumstances or the passage of time.
27. The effect of the subitem is to provide that, until the `new order' is made, all persons have
the rights and liabilities created by item 2. However, from the time the `new order' is made, the
rights and liabilities will stem from it. Unless the `new order' itself is an `affected order', the rights
and liabilities that derive from the `new order' will be those conferred by the `new order', and will
be subject to the provisions of the Family Law Act.
28. Note 1 in item 3 clarifies that item 3 is subject to item 5 and the item will not apply to an
`affected order' that was declared or held to be invalid before the commencement of Part 1. It is
included so as to direct a reader to item 5, which if invoked, will provide that the rest of Part 1 does
not apply.
29. Note 2 in item 3 clarifies that a `new order' under subitem 3(2) may itself be an `affected
order' under item 2 that will give rise to order-based rights and liabilities.
30. By way of example, assume parties had an order made by the Federal Magistrates Court of
Australia in June 2010 in the purported exercise of the de facto financial causes jurisdiction. If
those parties then applied for a new order to be made by the Family Court of Australia on the basis
that the `affected order' might be invalid (for whatever reason, including but not limited to the
absence of a subsection 40(2) Proclamation) and a `new order' was made in January 2012 (i.e.
before 11 February 2012) by the Family Court of Australia, rights and liabilities will be as
conferred by subitem 2(1) for the period from June 2010 to January 2012. However, as the `new
order' is also an `affected order', subitem 2(1) will also operate to confer rights and liabilities for
the parties from January 2012 onwards. However, if the `new order' had instead been made in
March 2012, it would not have been an `affected order' and rights and liabilities would flow from it
just as they would from any other order of the court made within power. For the avoidance of
doubt, the absence of a Proclamation having been made is not the only reason by which parties or a
court may have come to the conclusion the earlier order was or might be invalid.
31. Subitem 3(3) provides that a court or Registrar may vary, revoke, set aside, revive or
suspend an order-based right or liability as if the `assumed matters' had been the case. The
provision ensures that a court or Registrar, after the commencement of Part 1, may deal with the
rights and liabilities of any person under an `affected order' in the same way as if the `assumed
matters' had been the case. As individuals with court orders would generally have the right to seek
to have them altered at a later date, this subitem provides for the same to happen with respect to the
order based rights and liabilities which result from the provisions in this Act.
32. Subitem 3(4) provides that a court or Registrar may make an order achieving any other
result, in addition to those set out in subitem 3(3) had the `assumed matters' been the case and the
court or Registrar had been considering whether to vary, revoke, set aside, revive or suspend the
`affected order.' The provision is intended to eliminate any doubt as to the fact that a court or
Registrar may make any order ancillary, procedural, interlocutory or otherwise to the making of an
order which has the effect of varying, revoking, setting aside, reviving or suspending the rights and
9
liabilities conferred by this Act. For example, a court or Registrar may adjourn proceedings under
subsection 90SM(5) of the Family Law Act if the court is of the opinion there is likely to be a
significant change in the financial circumstances to the de facto relationship of parties before the
court or Registrar. Such a decision, in respect of an application to vary, revoke, set aside, revive or
suspend an order-based right or liability, by a court or Registrar is intended to be covered by
subitem 3(4).
33. Subitem 3(5) will ensure that item 3, which address what actions a court or Registrar may
take in respect of `affected orders', is not in any way intended to limit the generality of item 2.
Item 4: Evidence
34. Item 4 provides for the court record, or a copy of that record, relating to an `affected order'
to be used as evidence of the existence and details of a person's rights and liabilities created under
subitem 2(1). Given the effect of subitem 2(5), more than one court record may be needed to
establish rights and liabilities in a particular case.
35. The item will ensure that a court is in a position to determine the rights and liabilities of a
person under an `affected order' by reference to the court record and is intended to complement the
operation of section 157 of the Evidence Act 1995.
Item 5: Part does not apply to certain orders
36. Item 5 provides that Part 1 does not apply to any order specifically declared or held to be
invalid or to have been made without power by a court before the commencement of Part 1,
regardless of whether the basis for that determination of invalidity is the absence of a Proclamation
or any other reason. The provision will ensure that Part 1 does not override any finding of a court
as to the validity of an `affected order' prior to the commencement of the Part. Given the nature of
the jurisdiction, any such finding as to the validity of an `affected order' will likely have been made
by the Family Court of Australia or the High Court of Australia exercising appellate jurisdiction.
Its purpose is to ensure that Part 1 will not interfere with findings of invalidity by a court made
before the commencement of the Part, and any actions or orders taken consequential to that finding.
Item 6: Jurisdiction of courts
37. Item 6 provides for the conferral of jurisdiction on courts with respect to matters arising
under Part 1. This will primarily allow for the exercise of powers set out in subitems 3(3) and (4).
38. Subitem 6(1) confers jurisdiction with respect to matters arising under Part 1 on the
Family Court of Australia, the Federal Magistrates Court of Australia, the Supreme Court of the
Northern Territory, and each court of summary jurisdiction of each Territory. Subitem 6(2) invests
federal jurisdiction in State and Territory courts of summary jurisdiction of referring States (that is,
excluding Western Australia) with respect to matters arising under Part 1. These are the courts that
are conferred with jurisdiction in de facto financial causes under subsection 39B(1) of the Family
Law Act. The provision will ensure that each of these courts has jurisdiction with respect to matters
arising under Part 1.
39. A court only has jurisdiction with respect to matters arising under Part 1 if it has jurisdiction
with respect to an equivalent matter arising under the Family Law Act, and subject to the same
conditions and limitations applying to it dealing with that equivalent matter (subitem 6(3)). The
provision will also ensure that any constraints on a court's jurisdiction, now or into the future, will
flow through to the exercise of jurisdiction under this Part.
10
PART 2 - ORDERS ON APPEAL FROM FAMILY LAW MAGISTRATES OF WESTERN
AUSTRALIA
Item 7: Interpretation
40. Item 7 defines a number of terms used in Part 2, namely, affected order, assumed matters,
court, Family Court, liability, order, order-based rights or liabilities, Registrar and right.
· affected order is defined by reference to subitems 8(4) and (5). The term is used in this Part
in items 8, 9 and 10;
· assumed matters is defined by reference to subitem 8(1). The term is used in this Part in
Items 8 and 9;
· court is defined as a court within the meaning of section 4 of the Family Law Act. The
definition also includes a court exercising jurisdiction in relation to a matter under this Part.
A reference to a court in items 11 and 12 includes any court;
· Family Court is defined as the Family Court of Australia;
· liability is defined as including a duty, responsibility or obligation. The term is used in this
Part in items 8, 9 and 10;
· order is defined as including a decree, judgment, declaration, injunction, direction or other
decision. The term is used in this Part in items 8, 9, 10 and 11. An order referred to in this
Part is to be broadly interpreted to include any decision of a court that may be made by a
court in relation to an appeal which lies to the Family Court of Australia under subsection
94AAA(1A) of the Family Law. In relation to these appeal proceedings, courts and
Registrars have power to make a wide range of decisions leading up to, and including, the
final decision. These include, but are not limited to, orders, declarations, injunctions
(interlocutory or otherwise), decrees, stays, notifications and referrals of proceedings for
arbitration;;
· order-based rights and liabilities is defined by reference to subitem 9(1). The term is used
in this Part in items 9 and 10;
· Registrar is defined to cover Registrars and Judicial Registrars to the extent that their
powers were or are exercised by them under a delegation under the Family Law Rules 2004
or the Federal Magistrates Court Rules 2001 or a direction given under section 102 of the
Federal Magistrates Act 1999. The definition also covers Registrars of the Family Court of
Western Australia to the extent that their powers were or are exercised by them under a
delegation under section 33 of the Family Court Act 1997 (WA). The definition is in these
terms to ensure that Registrars and Judicial Registrars have powers under Part 2 only to the
extent of powers conferred on them by delegation or direction. This recognises that the
orders affected by the absence of a Proclamation permitting the exercise of certain
jurisdiction under the Family Law Act may have included orders of Registrars or Judicial
Registrars. The definition also reflects that a delegation given to Registrars may change
from time to time which will flow on to any powers they might have by virtue of this Act.
· right is defined as including an interest, status, power or authority. The term `right' is
intended to be read broadly. This term is used in this Part in items 8 and 9.
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41. Item 7(2) provides that any other expression in Part 2 is taken to have the same meaning as
in the Family Law Act.
Item 8: Rights and liabilities of persons
42. This item creates new statutory rights and liabilities identical to those that would have been
derived from orders if a Proclamation under subsection 40(2) of the Family Law Act had been made
at the time the jurisdiction to hear appeals from Family Law Magistrates in Western Australia was
conferred on the Family Court of Australia.
43. Item 8 also defines the additional key terms of `assumed matters' and `affected order' used
in Part 2.
44. Subitem 8(1) defines `assumed matters'. The `assumed matters' include a Proclamation
having been made under subsection 40(2) of the Family Law Act fixing 1 July 2006 as the date on
and after which jurisdiction of the Family Court of Australia under paragraph 93A(1)(aa) of the
Family Law Act could be exercised in Western Australia in respect of appeals under subsection
94AAA(1A) of the Family Law Act, and that Proclamation had been in force at all times from 1
July 2006 to the end of 20 October 2011.
45. Subitem 8(1) creates new statutory rights and liabilities by providing that the rights and
liabilities of all persons are the same as if the `assumed matters' had been the case. This subitem
refers to all persons, not only parties to the appeal proceeding. The provision is intended to be
broad in its application to reflect the range of circumstances that can arise in appeals which lie to
the Family Court of Australia by subsection 94AAA(1A) of the Family Law Act. The provision
will give all persons the rights and liabilities they would have had if the `assumed matters' had been
the case. The provision is the principal provision of the Part, putting all persons in the position they
would have been in if the subsection 40(2) Proclamation had been made at the time the relevant
appeal jurisdiction was conferred on the Family Court of Australia.
46. Subitem 8(2) provides for some, but not necessarily all, of the things that people are entitled
to do or have done in relation to the rights and liabilities conferred under subitem 8(1). This
includes that all persons are entitled to act as though the rights and liabilities have always existed.
47. In particular, this subitem confirms that protection is given, not only to the parties to the
proceedings, but to third parties who may have taken action on the belief that the orders had been
made within power. The item will ensure that any person or organisation who has acted, or omitted
to act, in reliance on the validity of an `affected order' will not be adversely affected by such
reliance.
48. The subitem also provides that those rights and liabilities are exercisable and enforceable by
all persons as if the `assumed matters' had been the case. For the avoidance of doubt, the provision
specifically includes reference to any right to appeal, or right to apply for a review of, an `affected
order' (subitem 8(2)(c)).
49. Subitem 8(3) prevents subitem 8(1) from operating to validate a conviction for an offence
which relates to proceedings on an appeal under subsection 94AAA(1A) and where the conviction
(or purported conviction) occurred before the commencement of this Part. This provides for a
narrow exemption to the broad effect achieved by subitem 8(1), providing for individuals to be put
in the same position they would have been if the subsection 40(2) Proclamation had been made at
the right time. This narrow exemption only applies to convictions for an offence, that is criminal
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offences, and is required to ensure the Act does not usurp the prior exercise of judicial power in
relation to those convictions.
50. Subitem 8(4) defines an `affected order'. It is expressed to be subject to subitem 8(5) which
provides for the possible impact of later orders on an `affected order'.
51. An `affected order' is defined as an order purportedly made by the Family Court of
Australia before 21 October 2011 in the exercise of its jurisdiction under paragraph 93A(1)(aa) of
the Family Law Act in respect of an appeal under subsection 94AAA(1A) of that Act.
52. The provision defines `affected order' by reference to the specific jurisdiction of the Family
Court of Australia that was affected by the absence of a Proclamation having been made under
subsection 40(2) of the Family Law Act.
53. Subitem 8(4)(b) provides that the definition of `affected order' also includes an order made
on appeal from, or review of, an order referred to in subitem 8(4)(a). The provision will ensure that
any decision of a court on appeal from, or review of, an order or reward referred to in subitem
8(4)(a) is also an `affected order', if the appeal or review order was made before the
commencement of Part 2.
54. Subitem 8(5) provides that where an `affected order' has, before the commencement of Part
2, been varied, revoked, set aside, revived or suspended, the `affected order' is defined as that order
in the form impacted by the later order or orders. The provision will ensure that the same rights and
liabilities as are conferred under subitem 8(1) are able to be altered by a court after the
commencement of Part 2. However, if the later orders were made on the basis that the affected
order might have been invalid, subitem 9(2) applies rather than subitem 8(5).
55. A reference to a court or Registrar in this provision includes a court and Registrar defined in
the Act. As such, the definition of `affected order' reflects that an `affected order' could have been
later varied, revoked, set aside, revived or suspended by any court or Registrar exercising
jurisdiction with respect the orders made on appeal, courts or Registrars whose jurisdiction was not
affected by the absence of a subsection 40(2) Proclamation.
56. The Note in item 8 assists the reader to understand that item 8 is subject to item 11 in the
Part. Therefore, item 8 will not apply to an `affected order' that was specifically declared or held to
be invalid before the commencement of Part 2. It is included so as to direct a reader to item 11,
which if invoked, will provide that the rest of Part 2 does not apply.
Item 9: Additional provisions relating to order-based rights or liabilities
57. Subitem 9(1) defines the term `order-based rights or liabilities' as those rights or liabilities a
person is declared by item 8 of the Act to have and that were purportedly conferred, imposed or
affected by an `affected order'. This term is used in this item to provide for a court or Registrar to
be able to alter those rights or liabilities after the commencement of Part 2.
58. Subitem 9(2) provides that a court or Registrar may vary, revoke, set aside, revive or
suspend an order-based right or liability as if the `assumed matters' had been the case. The
provision ensures that a court or Registrar, after the commencement of Part 2, may deal with the
rights and liabilities of any person under an `affected order' in the same way as if the `assumed
matters' had been the case. As individuals with court orders would generally have the right to seek
to have them altered at a later date, this subitem provides for the same to happen with respect to the
order-based rights and liabilities which result from the provisions in the Act.
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59. Subitem 9(3) provides that a court or Registrar may make an order achieving any other
result, in addition to those set out in subitem 9(2) had the `assumed matters' been the case and the
court or Registrar had been considering whether to vary, revoke, set aside, revive or suspend the
`affected order.' The provision is intended to eliminate any doubt as to the fact that a court or
Registrar may make any order ancillary, procedural, interlocutory or otherwise to the making of an
order which has the effect of varying, revoking, setting aside, reviving or suspending the rights and
liabilities conferred by the Act.
60. Subitem 9(4) will ensure that item 8, which address what actions a court or Registrar may
take in respect of `affected orders', is not in any way intended to limit the generality of item 8.
Item 10: Evidence
61. Item 10 provides for the court record, or a copy of that record, relating to an `affected order'
to be used as evidence of the existence and details of a person's rights and liabilities created under
subitem 8(1). Given the effect of subitem 8(5), more than one court record may be needed to
establish rights and liabilities in a particular case.
62. The item will ensure that a court is in a position to determine the rights and liabilities of a
person under an `affected order' by reference to the court record and is intended to complement the
operation of section 157 of the Evidence Act 1995.
Item 11: Part does not apply to certain orders
63. Item 11 provides that Part 2 does not apply to any order specifically declared or held to be
invalid or to have been made without power by a court before the commencement of Part 2,
regardless of whether the basis for that determination of invalidity is the absence of a Proclamation
or any other reason. The provision will ensure that Part 2 does not override any finding of a court
as to the validity of an `affected order' prior to the commencement of the Part. Given the nature of
the jurisdiction, any such finding as to the validity of an `affected order' will likely have been made
by the High Court of Australia exercising appellate jurisdiction. Its purpose is to ensure that Part 2
will not interfere with findings of invalidity by a court made before the commencement of the Part,
and any actions or orders taken consequential to that finding.
Item 12: Jurisdiction of courts
64. Item 12 provides for the conferral of jurisdiction on courts with respect to matters arising
under Part 2. This will primarily allow for the exercise of powers set out in subitems 9(2) and (3).
65. Subitem 12(1) confers jurisdiction with respect to matters arising under Part 2 on the Family
Court of Australia, the Federal Magistrates Court of Australia, and each court of summary
jurisdiction of each Territory. Subitem 12(2) confers federal jurisdiction on the Family Court of
Western Australia, and each State court of summary jurisdiction with respect to matters arising
under Part 2 and reflects the courts that are conferred with jurisdiction to deal with matters arising
under the Family Law Act. These are the courts that are conferred with the same or similar
jurisdiction as Family Law Magistrates in Western Australia which may have resulted in appeals to
the Family Court of Australia.
66. A court only has jurisdiction with respect to matters arising under Part 2 if it has
jurisdiction with respect to an equivalent matter arising under the Family Law Act, and subject to
the same conditions and limitations applying to it dealing with that equivalent matter
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(subitem 12(3)). The provision will also ensure that any constraints on a court's jurisdiction, now
or into the future, will flow through to the exercise of jurisdiction under Part 2.
SCHEDULE 2 - AMENDMENTS
67. Schedule 2 amends the Family Law Act to remove the requirement for a Proclamation to be
made in respect of fixing a date on and after which jurisdiction of the Family Court of Australia
under the Family Law Act could be exercised in each of the States and Territories. This
requirement was inserted in the Family Law Act in 1975 to manage the transition from State and
Territory courts dealing with matrimonial causes to the then newly established Family Court of
Australia and the transferral of this jurisdiction. The requirement for a Proclamation to be made
fixing a date on and after which jurisdiction could be exercised by a court no longer serves a useful
purpose.
68. As a result of these amendments, the Act will provide that regulations may be made to
provide a date from which the jurisdiction of the Family Court of Australia under the Act must not
be exercised in certain circumstances.
Item 1: Section 40 (heading)
69. Item 1 replaces the heading contained under section 40 of the Family Law Act. The new
heading is Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts.
Item 2: Subsections 40(1) and (2)
70. Item 2 repeals subsections 40(1) and (2) of the Family Law Act so as not to require a
Proclamation to be made fixing a date as the date on and after which the jurisdiction of the Family
Court of Australia under the Family Law Act may be exercised in respect of all proceedings, in such
States and Territories as are specified in the Proclamation.
71. It substitutes a new subsection 40(1) which provides for regulations to be made which
specify a date from which the jurisdiction of the Family Court of Australia under the Family Law
Act, in relation to all or a specified class of proceedings, must not be exercised in specified States or
Territories.
72. The subsection 40(2) Proclamations have been used, to date, to effectively limit the exercise
of the Family Court of Australia's jurisdiction, for example, in Western Australia where there is a
State Family Court which is invested with federal jurisdiction under the Family Law Act. These
regulations will be used to restrict the exercise of jurisdiction as appropriate from time to time. The
design of new subsection 40(1) will, in contrast to the existing provision, leave the Family Court of
Australia with a default ability to exercise jurisdiction validly conferred on it. This differs from the
existing provision which requires something additional to happen, in the form of a Proclamation,
before the court is able to validly exercise jurisdiction.
Item 3: Subsection 40(5)
73. Item 3 substitutes reference to subsections 40(2) and (3) of the Family Law Act with
subsection 40(3) of the Family Law Act and is a consequential amendment.
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Item 4: Application of amendments
74. Item 4 provides that proceedings which have been instituted but have not yet been finalised
before the amendments made by Schedule 2 commence are not adversely affected by the changed
requirement eliminating the need for a subsection 40(2) Proclamation. This is intended to confirm
that, just because a Proclamation was needed when the proceedings were instituted, and for orders
made before the commencement of this Part, this does not mean that a Proclamation also needs to
have been in place to cover exercises of jurisdiction in the proceedings after the commencement of
this Part.
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