Federal Register of Legislation - Australian Government

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Act No. 148 of 1997 as made
An Act relating to certain ineffective orders of Registrars of the Family Court of Western Australia
Administered by: Attorney-General's
Originating Bill: Family Court of Western Australia (Orders of Registrars) Bill 1997
Date of Assent 17 Oct 1997

 

 

 

 

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

 

No. 148, 1997

 

 

 

 

  

  

  


 

 

 

 

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

 

No. 148, 1997

 

 

 

 

An Act relating to certain ineffective orders of Registrars of the Family Court of Western Australia

  

  

  


Contents

1............ Short title............................................................................................

2............ Commencement..................................................................................

3............ Interpretation......................................................................................

4............ Meaning of ineffective order...............................................................

5............ Rights and liabilities declared in certain cases.....................................

6............ Effect of declared rights and liabilities................................................

7............ Effect of things done or omitted to be done under or in relation to rights and liabilities                   

8............ Section 5 regarded as having ceased to have effect in certain cases....

9............ Powers of courts in relation to declared rights and liabilities.............

10.......... Evidence..............................................................................................

11.......... Act does not apply to certain orders..................................................

12.......... Jurisdiction of courts..........................................................................

 


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

No. 148, 1997

 

 

An Act relating to certain ineffective orders of Registrars of the Family Court of Western Australia

 

[Assented to 17 October 1997]

 

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Family Court of Western Australia (Orders of Registrars) Act 1997.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Interpretation

                   In this Act:

corresponding Western Australian Act means the Family Court (Orders of Registrars) Act 1997 of Western Australia.

federal family jurisdiction means jurisdiction under:

                     (a)  the Family Law Act 1975; or

                     (b)  the Child Support (Registration and Collection) Act 1988; or

                     (c)  the Child Support (Assessment) Act 1989.

ineffective order has the meaning given by section 4.

liability includes a duty or obligation.

parenting plan means a parenting plan under the Family Law Act 1975.

proceedings includes an initiating application.

proceedings for the order means:

                     (a)  in relation to an ineffective order of the kind referred to in subsection 4(2)—the proceedings in or in relation to which the order was purportedly made; and

                     (b)  in relation to provisions of a parenting plan that are an ineffective order of the kind referred to in subsection 4(3)—the proceedings that would have been constituted by the application to register the parenting plan if it had instead been an application to the Family Court of Western Australia for an order of the relevant kind under the Family Law Act 1975 and the parties to the plan had been parties to that application.

Registrar has the meaning it had in the Family Court Act 1975 of Western Australia as in force immediately before the commencement of the corresponding Western Australian Act.

registration decision, in relation to an ineffective order of the kind referred to in subsection 4(3), means the Registrar’s decision to register the parenting plan as mentioned in that subsection.

right includes an interest or status.

4  Meaning of ineffective order

             (1)  A reference in this Act to an ineffective order is a reference to a purported order described in subsection (2), or provisions of a parenting plan described in subsection (3). This has effect subject to subsections (4) and (5) as they affect the meaning of a reference to an ineffective order in the context of a particular case.

             (2)  An order that a Registrar has purported to make, before the commencement of the corresponding Western Australian Act, is an ineffective order if it was made:

                     (a)  in the exercise or purported exercise of the federal family jurisdiction of the Family Court of Western Australia; and

                     (b)  by way of a judicial determination that was not reviewable (otherwise than on appeal).

             (3)  Provisions of a parenting plan that a Registrar has purported to register under section 63E of the Family Law Act 1975, before the commencement of the corresponding Western Australian Act, are an ineffective order if they would have had effect under section 63F or 63G of the Family Law Act 1975 as a particular kind of order if the decision to register the plan had been a decision made by the Family Court of Western Australia.

             (4)  If a court or Registrar has purported to vary, revoke, set aside, revive or suspend an ineffective order, the reference is, subject to subsection (5), a reference to the order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

Note 1:       In the case of an ineffective order of the kind referred to in subsection 4(3), this subsection applies to a purported variation, revocation, setting aside, revival or suspension of provisions of the parenting plan as they had effect as an order (rather than a purported variation, revocation, setting aside, revival or suspension of the provisions as provisions of an agreement).

Note 2:       This subsection applies if a court has proceeded on the basis that an ineffective order was valid. The situation where a court has proceeded on the basis that an ineffective order was or might have been invalid is dealt with in section 8.

             (5)  If clause 2 of Schedule 2 to the Family Law Reform Act 1995 would have applied to an ineffective order if it had been an order made by the Family Court of Western Australia in the exercise of its federal family jurisdiction, then, so far as the reference relates to a time after the commencement of that Schedule, it is, subject to subsection (4), a reference to the order as it would have, or would have had, effect if that clause applied to it.

5  Rights and liabilities declared in certain cases

             (1)  The rights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, the same as if each ineffective order had been an order made by the Family Court of Western Australia in the exercise of its federal family jurisdiction in or in relation to the proceedings for the order.

             (2)  Subsection (1) has effect in relation to an ineffective order of the kind referred to in subsection 4(3) subject to the same conditions and limitations as apply under the Family Law Act 1975 in relation to provisions of registered parenting plans having effect as orders.

Note:          See, for example, the conditions and limitations specified in sections 63F and 63G of the Family Law Act 1975.

6  Effect of declared rights and liabilities

             (1)  A right or liability conferred, imposed or affected by section 5:

                     (a)  is exercisable or enforceable; and

                     (b)  is to be regarded as always having been exercisable or enforceable;

as if it were a right or liability conferred, imposed or affected by an order made by the Family Court of Western Australia, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

             (2)  Subsection (1) has effect in relation to an ineffective order of the kind referred to in subsection 4(3) subject to the same conditions and limitations as apply under the Family Law Act 1975 in relation to provisions of registered parenting plans having effect as orders.

Note:          See, for example, the conditions and limitations specified in sections 63F and 63G of the Family Law Act 1975.

             (3)  In this section:

enforceable includes able to be dealt with by proceedings under Division 2 of Part XIIIA of the Family Law Act 1975 relating to a contravention of an order.

7  Effect of things done or omitted to be done under or in relation to rights and liabilities

             (1)  Any act or thing done or omitted to be done before or after the commencement of this Act under or in relation to a right or liability conferred, imposed or affected by section 5 of this Act, or the equivalent provision of the corresponding Western Australian Act:

                     (a)  has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and

                     (b)  is to be regarded as always having had the same effect, and given rise to the same consequences, for the purposes of any written or other law;

as if it were done or omitted to be done to give effect to, or under the authority of, or in reliance on:

                     (c)  an order made by the Family Court of Western Australia, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order; or

                     (d)  an order made by the Family Court of Western Australia in or in relation to the proceedings referred to in the equivalent provision of the corresponding Western Australian Act;

as the case requires.

             (2)  Subject to subsection (3), for the purposes of an enforcement law (see subsection (4)), any act or thing done or omitted to be done before or after the commencement of this Act gives rise to the same consequences, and is to be regarded as always having given rise to the same consequences, as if each ineffective order were an order made by the Family Court of Western Australia, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

             (3)  If, before the commencement of this Act, a court purported to convict a person of an offence against an enforcement law on the basis that an order of the kind referred to in subsection 4(2) was a valid order, nothing in this section is to be taken to validate or confirm that conviction.

             (4)  In this section:

enforcement law means a provision of a law of the Commonwealth, other than a law relating to contempt of court, that sets out a consequence for a person if the person:

                     (a)  contravenes; or

                     (b)  acts in a specified way while there is in force;

an order, or a particular kind of order, made by a court exercising federal family jurisdiction (whether or not the provision also applies to other orders of courts).

8  Section 5 regarded as having ceased to have effect in certain cases

             (1)  If:

                     (a)  before the commencement of this Act, a court, in the exercise of its federal family jurisdiction, made an order (the new order) on the basis that an ineffective order of the kind referred to in subsection 4(2) was or might be invalid; and

                     (b)  the new order replaced the ineffective order (see subsection (2));

section 5 is to be regarded as having ceased to have effect in respect of the ineffective order when the new order took effect.

             (2)  For the purposes of subsection (1), the new order replaced the ineffective order if the new order:

                     (a)  conferred or imposed rights or liabilities similar to or different from those purportedly conferred or imposed by the ineffective order; or

                     (b)  affected rights or liabilities in the same way as they were purportedly affected by the ineffective order or in a different way.

             (3)  If:

                     (a)  before the commencement of this Act, a court, in the exercise of its federal family jurisdiction, made an order or decision (the new order or decision) on the basis that the registration decision in relation to an ineffective order of the kind referred to in subsection 4(3) was or might be invalid; and

                     (b)  the new order or decision replaced the ineffective order (see subsection (4));

section 5 is to be regarded as having ceased to have effect in respect of the ineffective order when the new order or decision took effect.

             (4)  For the purposes of subsection (3), the new order or decision replaced the ineffective order if:

                     (a)  it was an order:

                              (i)  conferring or imposing rights or liabilities similar to or different from those purportedly conferred or imposed by the ineffective order; or

                             (ii)  affecting rights or liabilities in the same way as they were purportedly affected by the ineffective order or in a different way; or

                     (b)  it was a decision to register the same or a different parenting plan under section 63E of the Family Law Act 1975.

9  Powers of courts in relation to declared rights and liabilities

             (1)  A court may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 5 as if it were a right or liability conferred, imposed or affected by an order made by the Family Court of Western Australia in the exercise of its federal family jurisdiction in or in relation to the proceedings for the order.

             (2)  In addition to its powers under subsection (1), a court also has power to make an order achieving any other result that could have been achieved if:

                     (a)  the ineffective order had been an order made by the Family Court of Western Australia in the exercise of its federal family jurisdiction in or in relation to the proceedings for the order; and

                     (b)  the court had been considering whether to vary, revoke, set aside, revive or suspend that order.

             (3)  This section has effect in relation to an ineffective order of the kind referred to in subsection 4(3) subject to the same conditions and limitations as apply under the Family Law Act 1975 in relation to provisions of registered parenting plans having effect as orders.

Note:          See, for example, the conditions and limitations specified in sections 63F and 63G of the Family Law Act 1975.

10  Evidence

                   The court record, or a copy of the court record, of:

                     (a)  an ineffective order of the kind referred to in subsection 4(2); or

                     (b)  the registration decision in relation to an ineffective order of the kind referred to in subsection 4(3);

may be adduced in evidence to show the existence, nature and extent of each right or liability conferred, imposed or affected by section 5.

11  Act does not apply to certain orders

                   Nothing in this Act applies to an order declared to be invalid by the Full Court of the Family Court before the commencement of the corresponding Western Australian Act.

12  Jurisdiction of courts

             (1)  Subject to subsection (3), jurisdiction is conferred on the Family Court and the Supreme Court of the Northern Territory, and the Family Court of Western Australia is invested with federal jurisdiction, with respect to matters arising under this Act.

             (2)  Subject to subsection (3), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Act.

             (3)  A court only has jurisdiction in respect of a matter arising under this Act if it has jurisdiction in respect of an equivalent matter arising under the Family Law Act 1975, the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989, as the case requires. The court’s jurisdiction under this Act is subject to the same conditions and limitations as would apply to it in dealing with the equivalent matter.


 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 28 May 1997

Senate on  30 September 1997]

(72/97)