This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Family Court of Western Australia (Orders of Registrars)
Date Introduced: 28 May 1997
House: House of Representatives
Commencement: On Royal Assent
To replace the rights and liabilities contained certain
ineffective orders made by Registrars of the Family Court of
Western Australia with equivalent statutory rights and
The Family Court of Australia and the Family Court of Western
When the Family Law Act 1975 was passed each State was
given the opportunity to establish its own Family Court. Only
Western Australia did so. The Family Court of Western Australia
exercises federal jurisdiction and state jurisdiction. It exercises
federal jurisdiction under the Family Law Act 1975, the
Marriage Act 1961 (Cwlth) and under child support
legislation. In relation to state jurisdiction, it deals with
matters such as adoption, child welfare and ex-nuptial children.
Appeals relating to the operation of federal law go to the Full
Court of the Family Court of Australia, while appeals on matters of
state jurisdiction go to the Western Australian Supreme Court.
For some time, registrars of the Family Court of Western
Australia have purported to make consent orders under the Family
Law Rules in relation to maintenance, property and access to
children. Their ability to make such orders was challenged in a
recent case called Horne v. Horne.(1)
What happened in Horne v. Horne?
In Horne v. Horne, a deputy registrar of the Family
Court of Western Australia made a property order under section 79
of the Family Law Act 1975 (Cwlth) with the consent of the
parties (a consent order). The order was made under Order 9A rule
4(1) of the Family Law Rules which empowered the registrar and
certain deputy registrars of the Family Court of Australia and the
Family Court of Western Australia to make orders by consent under
the Family Law Act 1975.
In Horne v. Horne, the husband appealed against the
deputy registrar's order. He alleged, among other things, that the
registrar and deputy registrars of the Family Court of Western
Australia did not have the power to make such orders.
In Horne v. Horne, the Full Court of the Family Court
held that the consent orders which had been made by the deputy
registrar were made without jurisdiction and were invalid. The
deputy registrar was purportedly acting under Family Law Rules.
However, the Full Court found that while Rules could be made for
'practice and procedure,' this did not enable Rules to be made
which did not provide for the review of registrar's decisions by a
judge by way of a new hearing on all the issues of fact and law.(2)
A right of judicial review of the decisions of officers (like
registrars) who exercise delegated judicial power was seen by the
Court as a substantive right which could not be impinged upon by
Rules made under a 'practice and procedure' power.(3)
The appeal did not challenge the power of registrars of the
Family Court of Australia to exercise that power or any
other power which is delegated to them.(4) Nor does the decision in
Horne (5). Horne apply to orders made in court or in
chambers by judges of the Family Court of Western Australia or by
Western Australian magistrates in courts of summary jurisdiction.v
The decision only affects orders made in chambers by registrars (or
deputy registrars) of theFamily Court of Western Australia
However, as the Attorney-General said in his Second Reading
Speech, 'As a result [of Horne v. Horne], many consent
orders made by Registrars in Western Australia are
Western Australia Family Court (Orders of Registrars) Bill
Complementary Western Australian and Commonwealth legislation is
needed as a result of the decision in Horne v. Horne. The
Western Australia Family Court (Orders of Registrars) Bill 1997 is
before the Western Australian Parliament.
The Western Australian Bill was introduced into the Western
Australian Parliament in April 1997. Explaining the need for
Commonwealth and State legislation in response to Horne v.
Horne, the WA Attorney-General said:
Most people affected by the ineffective orders of registrars
are, or were, married to each other. A smaller number of affected
people are those who appeared before registrars where ex-nuptial
children were involved. The solution requires a combined approach
by the Commonwealth and the State to address the problem of
ineffective orders in both cases.(7)
According to the WA Bill's Second Reading Speech:
... in the case of an order that a registrar has purported to
make the rights, liabilities, obligations and status of all persons
will, by force of the [WA] Bill once enacted, be the same as if the
purported order had been made by a court having jurisdiction to do
What is the Commonwealth's Family Court of Western Australia
(Orders of Registrars) Bill 1997 designed to achieve?
The Family Court of Western Australia (Orders of Registrars)
Bill 1997 (Cwlth) attempts to ensure that people in Western
Australia affected by the decision in Horne v.
Horne obtain enforceable, statutory family law rights and
liabilities that mirror the rights and liabilities that would have
been created by valid orders. In addition to making consent orders,
registrars also exercised a similar power in relation to parenting
plans and the Bill deals with both.
The federal Attorney's Second Reading Speech states:
The approach taken in this Bill is based upon one approved by
the High Court in R v. Humby; ex parte Rooney (1973) 129
CLR 231 and subsequently in cases such as Polyukhovic v. the
Commonwealth (1991) 172 CLR 500. This approach does not
attempt to validate the purported orders made by Registrars.
Instead, it creates new statutory rights and liabilities that may
be exercised and enforced in the same manner as orders.
The Attorney is here addressing the question of whether a
separation of powers issue arises from the Bill. In Humby,
a case relating to the Matrimonial Causes Act 1971
(Cwlth), which was referred to by the Attorney, Mason J said:
Chapter III [of the Commonwealth Constitution] contains no
prohibition, express or implied, that rights in issue in legal
proceedings shall not be the subject of legislative declaration or
Mason J described Humby as follows:
Here by legislative action the rights of parties in issue in
proceedings which resulted in invalid determinations were declared.
Those rights so declared in form and substance were the same as
those declared by the invalid determinations. But the legislation
does not involve an interference with the judicial process of the
kind which took place in Liyanage v. The Queen (10)...
Clause 4 defines the expression 'ineffective order.' An
'ineffective order' encompasses:
- an order purportedly made by a registrar (exercising 'federal
family jurisdiction'(11)) of the Family Court of Western Australia
which was not subject to judicial review (other than on appeal);
- the provisions of certain parenting plans purportedly
registered by a registrar
before the commencement of the 'corresponding Western Australian
Act.' The 'corresponding Western Australian Act' is the Family
Court (Orders of Registrars) Act 1997 of Western Australia (which,
at the time of writing, has not been passed by the Western
Clause 5 of the Bill in effect declares that
persons with rights and liabilities under 'ineffective orders' have
the same rights and liabilities as they would have if those orders
had been validly made.
Clause 6 of the Bill deals with the effect of
rights or liabilities conferred by clause 5. The
effect of clause 6 is that those rights and
liabilities are, and always have been, exercisable or enforceable
as though they were conferred by a validly made order.
Clause 7 provides that things done or not done
as a result of the rights and liabilities created by clause
5 or the equivalent provision in the WA mirror legislation
have the same effect for the purposes of other laws as if they were
done under validly made court orders.
Clause 8 of the Bill deals with the situation
where parties have already obtained a valid similar or identical
court order to replace a potentially invalid ineffective order. In
such a case, the new order will continue in force and determine the
rights and obligations of the parties it will not be supplanted by
the statutory rights and liabilities created by the Bill. The same
situation will apply where a new parenting plan has already been
registered to replace an ineffective order.
Clause 9 provides that a court may vary,
revoke, set aside, revoke or suspend a right or liability
conferred, imposed or affected by clause 5. The
Explanatory Memorandum states that clause 9 will
ensure that a court can vary the statutory rights and liabilities
created by clause 5 in the same way that a court
is able to vary a court order.
The Explanatory Memorandum states that the purpose of
clause 11 is to ensure that the legislation does
not apply to the orders which were the subject of the Horne v.
Horne proceedings or to other orders declared invalid by the
court for reasons other than the reasons given in Horne v.
- (1997) FLC 92-734.
- This is called a hearing de novo and can be contrasted
with a review by way of appeal.
- (1997) FLC 92-734 at 83,912.
- In Horne, the Family Court emphasised that the power
of registrars of the Family Court of Australia to make orders,
including consent orders, is subject to review whereas the
powers of registrars and deputy registrars of the Family Court of
Western Australia are not subject to review.
- Australian Family Law Bulletin, No.142, March
- WA Legislative Council and Legislative Assembly,
Parliamentary Debates (Hansard), 9 April 1997: 1322.
- (1973) 129 CLR 231 at 250.
- The expression 'federal family jurisdiction' is defined in
clause 3 to mean jurisdiction under the Family Law Act
1975 (Cwlth) or under Commonwealth child support
- Page 1.
20 August 1997
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© Commonwealth of Australia 1997
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Last updated: 20 August 1997
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