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
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
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nor do they constitute professional legal opinion.
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ISSN 1328-8091
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