Bills Digest no. 76 2005–06
Jurisdiction of Courts (Family Law) Bill
2005
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
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Jurisdiction
of Courts (Family Law) Bill 2005
Date
Introduced: 7
December 2005
House: Senate
Portfolio: Attorney-General
Commencement:
The Bill s formal
provisions commence on Royal Assent. Amendments relating to Family
Law Magistrates of Western Australia commence six months after
Royal Assent unless commenced earlier by proclamation.
The purpose of the Bill is to
make amendments to the Family Law Act 1975 (Cwlth) that
will enable the jurisdiction of Family Law Magistrates of Western
Australia (as defined in the Bill)(1) to be expanded so
that it reflects that of the Federal Magistrates Court (or FMC). It
also makes changes in relation to appeals and transfers of
proceedings in family law matters and to appeals in child support
matters. Under child support and family law statutes, rules
relating to appeals and transfers vary depending on whether the FMC
or a court of summary jurisdiction is involved. The Bill treats
Family Law Magistrates of Western Australia like the Federal
Magistrates Court instead of as a court of summary jurisdiction, as
is presently the case. In doing so, it recognises that Family Law
Magistrates of Western Australia are specialists in family law.
The Family Law Act established a Family Court of Australia. At
that stage, well before the Commonwealth had received
constitutional referrals of power over ex-nuptial children from the
States, it was intended that the States would establish their own
family courts able to comprehensively deal with family law matters
including all children s matters.(2) However, only
Western Australia established such a court the Family Court of
Western Australia.(3) This court deals with all family
law matters both federal and state and is funded by the
Commonwealth.
In 2003, the Commonwealth Attorney-General s Department
conducted a review of the workload and resources of the Family
Court of Western Australia. The review has not been publicly
released. The Explanatory Memorandum remarks that the review
included extensive consultation with the Western Australian
Department of Justice and the Family Court of Western
Australia.(4) The review concluded the court was hearing
matters that were more appropriately dealt with at magistrates
court level. This is because of the limited jurisdiction of the
Perth Court of Petty Sessions (now the Magistrates Court). At
Commonwealth level, less complex matters are now handled not by the
Family Court of Australia - a superior court - but by the Federal
Magistrates Court a lower level court. The jurisdiction of the
Federal Magistrates Court includes family law and child support. It
was established to provide cheaper and more accessible justice to
litigants, to relieve the workload of the Family Court of Australia
and to ensure that the Family Court concentrated on more complex
and lengthier cases. However, the Federal Magistrates Court does
not operate in Western Australia.
The Explanatory Memorandum states that the 2003 review
recommended that Commonwealth child support and family law statutes
be amended to give specialist family law magistrates in Western
Australia the same jurisdiction as the Federal Magistrates Court
and provide that their decisions be subject to the same appeal
processes.(5)
Various superior courts, such as the Family Court of Australia
and the Family Court of Western Australia are invested with
jurisdiction under child support statutes and the Family Law Act.
The Federal Magistrates Court has jurisdiction in most family law
matters (exceptions include applications for nullity of marriage
and property matters where the value of the property exceeds
$700,000). It has the same jurisdiction as superior courts in
relation to child support. Courts of summary jurisdiction
(sometimes called magistrates courts or local courts) have more
limited jurisdiction under the Family Law Act. They can hear
undefended divorces and property matters so long as the value of
the property does not exceed $20,000 (in which case the matter must
be transferred to the Family Court unless the parties otherwise
agree). They can also hear certain, but not all, children s
matters. For instance, they cannot hear contested proceedings for
parenting orders. However, they have the same jurisdiction as the
Federal Magistrates Court and superior courts under child support
legislation.
There are rules about appeals from courts of summary
jurisdiction and about the transfer of Family Law Act proceedings
from these courts to superior courts. For example, an appeal lies
from a court of summary jurisdiction to the Supreme Court of the
particular State or Territory or, in the case of Western Australia
to the Family Court of Western Australia, and then to the Full
Court of the Family Court. Different rules about appeals and
transfers apply to the Federal Magistrates Court. Here an appeal
lies straight to the Family Court of Australia.
The Bill will alter existing law in relation to specialist
Family Law Magistrates of Western Australia so that, rather than
the appeal and transfer processes set out for courts of summary
jurisdiction, the same rules that relate to the Federal Magistrates
Court will apply.
The expression, Family Law Magistrate of Western Australia is
defined in item 10 of Schedule 1 of the Bill. It
means a magistrate of the Western Australian Magistrates Court who
also holds office as a registrar of the Family Court of Western
Australia. As the Explanatory Memorandum points out, this is how
Family Law Magistrates of Western Australia are
appointed.(6) The definition, which is inserted into the
Family Law Act, will also apply to other statutes amended by the
Bill - the Child Support (Assessment) Act 1989 and the
Child Support (Registration and Collection) Act 1988.
The Child Support (Assessment) Act 1989 (the Assessment
Act) contains a formula for the administrative assessment of child
support by the Child Support Agency (or CSA), provides for review
and appeal processes and contains provision for the making of child
support agreements.
Many decisions that are made by the Child Support Agency can be
appealed to a court following internal review by the Agency. For
example, a parent can appeal to a court against a child support
assessment made by the CSA, ask a court to set aside a child
support agreement or contest a CSA decision that they are not
entitled to a child support assessment. Section 99 of the
Assessment Act confers jurisdiction to hear these matters on the
Family Court of Australia, the Federal Magistrates Court, the
Family Court of Western Australia, the Supreme Court of the
Northern Territory, and State and Territory courts of summary
jurisdiction.
Items 1 and 2 of
Schedule 1 deal with the hearing of appeals from
decisions of a Family Law Magistrate of Western Australia
exercising jurisdiction under the Assessment Act. The amendments
provide for an appeal pathway which reflects the appeal pathway
from decisions of the Federal Magistrates Court.
Section 103 of the Assessment Act deals with cases stated, that
is, where a lower court wishes a superior court to rule on a
question of law. As a result of item 3, case
stated rules for Family Law Magistrates of Western Australia will
mirror the case stated rules for the FMC.
Item 4 ensures that the general rules relating
to appeals from courts of summary jurisdiction do not apply to
Family Law Magistrates of Western Australia and is a consequence of
the amendments effected by items 1 and
2.
Amendments are also made to the Child Support (Registration
and Collection) Act 1988 (the Registration and Collection
Act). This Act establishes the Child Support Agency and provides
for the registration, collection and enforcement of child
support.
A parent can ask a court to review various CSA decisions made
under the Registration and Collection Act for instance, decisions
to register or refuse to register a maintenance liability. Section
104 of the Registration and Collection Act confers jurisdiction on
the Family Court of Australia, the Federal Magistrates Court, the
Family Court of Western Australia, the Supreme Court of the
Northern Territory, and State and Territory courts of summary
jurisdiction in relation to such matters.
Like the amendments relating to the Assessment Act,
items 6 and 7 ensure that appeals
from decisions by a Family Law Magistrate of Western Australia made
under the Registration and Collection Act mirror the appeal process
for Federal Magistrates Court decisions. Case stated amendments are
made by item 8. Item 9 ensures
that provisions about appeals from courts of summary jurisdiction
do not apply to Family Law Magistrates of Western Australia and is
a consequence of the amendments effected by items
6 and 7.
Item 11 will enable a proclamation to be made
giving a Family Law Magistrate of Western Australia the same
jurisdiction in matrimonial causes under the Family Law Act as the
Federal Magistrates Court.
Items 12 and 13 deal with
monetary limits of jurisdiction under the Family Law Act in courts
of summary jurisdiction. Once a ceiling is reached, the matter must
be transferred to a superior court unless the parties otherwise
agree. In the case of a Family Law Magistrate of Western Australia,
the amendments provide that the monetary limit will be set down by
regulation. In any other case, the ceiling will continue to be
specified in the Family Law Act and remain at its current limit of
$20,000. Note that the Federal Magistrates Court currently has
jurisdiction in property matters where the value of the property
does not exceed $700, 000 (unless the parties agree). Note also
that amendments contained in the Family Law Amendment (Shared
Parental Responsibility) Bill 2005 currently before the Parliament
remove the monetary limit that the FMC currently has in relation to
matrimonial property proceedings.(7)
Subsection 46(2A) of the Family Law Act ensures that only
undefended divorce proceedings can be heard by courts of summary
jurisdiction. It does this by providing that defended proceedings
must be transferred to the Family Court, a State or Territory
Supreme Court or the Federal Magistrates Court. Item
14 exempts Family Law Magistrates of Western Australia
from this general rule thus ensuring that they, like Federal
Magistrates, can hear defended divorce proceedings.
Item 17 allows a proclamation to be made giving
Family Law Magistrates of Western Australia the same jurisdiction
in children s matters under the Family Law Act as the Federal
Magistrates Court.
Item 18 ensures that a Family Law Magistrate of
Western Australia can hear contested proceedings for parenting
orders. It does this by exempting such magistrates from the general
rule that courts of summary jurisdiction can only hear uncontested
proceedings and must transfer contested parenting order proceedings
to a superior court or the Federal Magistrates Court.
Items 20-24 are amendments and consequential
amendments providing that the appeal pathway from a decision of a
Family Law Magistrate of Western Australia under the Family Law Act
is the same as that applying to an appeal from the Federal
Magistrates Court. They also apply the same rules about leave to
appeal from decisions of Family Law Magistrates of Western
Australia. Finally, item 26 ensures that rules
about appeals from courts of summary jurisdiction do not apply to a
decision of a Federal Magistrate of Western Australia.
Items 28-30 omit redundant occurrences of the
word or in three Family Law Act provisions.
-
see below page 4.
-
Parker et al, Australian Family Law in Context. Commentary
and Materials, LBC Casebook.
-
Consequently, Western Australia did not refer power over
ex-nuptial children to the Commonwealth.
-
Explanatory Memorandum, p. 2.
-
Explanatory Memorandum, p. 1. Note, as indicated in the Purpose
section and elsewhere in this Digest that courts of summary
jurisdiction (including the WA Magistrates Court) are not at
present limited in their exercise of child support jurisdiction. It
is only in relation to family law matters that the Bill increases
the jurisdiction of Family Law Magistrates of Western
Australia.
-
And see Magistrates Court Act 2004 (WA).
-
See item 1, Schedule 7.
Jennifer Norberry
12 January 2006
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2006
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