Bills Digest No. 12   1997-98 Family Court of Western Australia (Orders of Registrars) Bill 1997


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WARNING:
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 Bill.

CONTENTS

Passage History

Family Court of Western Australia (Orders of Registrars) Bill 1997

Date Introduced: 28 May 1997
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Royal Assent

Purpose

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 liabilities.

Background

The Family Court of Australia and the Family Court of Western Australia

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 .(6)

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 ineffective.'

Western Australia Family Court (Orders of Registrars) Bill 1997

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 so.(8)

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 action.(9)

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)...

Main Provisions

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); and
  • 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 Australian Parliament).

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. Horne.(12)

Endnotes

ENDNOTES

  1. (1997) FLC 92-734.
  2. This is called a hearing de novo and can be contrasted with a review by way of appeal.
  3. (1997) FLC 92-734 at 83,912.
  4. 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.
  5. Australian Family Law Bulletin, No.142, March 1997.
  6. Ibid.
  7. WA Legislative Council and Legislative Assembly, Parliamentary Debates (Hansard), 9 April 1997: 1322.
  8. Ibid.
  9. (1973) 129 CLR 231 at 250.
  10. Ibid.
  11. 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 legislation.
  12. Page 1.

Contact Officer and Copyright Details

Jennifer Norberry
20 August 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1997

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 20 August 1997


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