A Bill for an Act to amend the Family Law Act 1975, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Jurisdiction of Courts (Family Law) Act 2005.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | |
| 2. Schedule 1, Part 1 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | |
| 3. Schedule 1, item 28 | Immediately after the commencement of item 83 of Schedule 1 to the Family Law Amendment Act 2005. | 3 August 2005 |
| 4. Schedule 1, item 29 | Immediately after the commencement of item 126 of Schedule 1 to the Family Law Amendment Act 2005. | 3 August 2005 |
| 5. Schedule 1, item 30 | Immediately after the commencement of item 127 of Schedule 1 to the Family Law Amendment Act 2005. | 3 August 2005 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Part 1—Amendments relating to the Magistrates Court of Western Australia
Child Support (Assessment) Act 1989
1 After subsection 102A(1)
Insert:
(1A) An appeal lies, with the leave of the Family Court, to the Family Court from:
(a) a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Family Law Magistrate of Western Australia exercising in the Magistrates Court of Western Australia original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Note 1: The heading to section 102 is altered by adding at the end “and the Magistrates Court of Western Australia”.
Note 2: The heading to section 102A is altered by adding at the end “and the Magistrates Court of Western Australia”.
2 Subsections 102A(2), (4), (5), (6), (7) and (9)
After “subsection (1)” (wherever occurring), insert “or (1A)”.
3 At the end of section 103
Add:
(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree to which subsection 102A(1A) applies could be made, a question of law arises which:
(a) the Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:
(c) the Magistrate must state the facts and question in the form of a special case for the opinion of a Full Court; and
(d) a Full Court must hear and determine the question.
(6) The Full Court may draw, from the facts and the documents, any inference, whether of fact or of law, that could have been drawn from them by the Magistrate.
4 Before subsection 105(1)
Insert:
(1A) This section does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
Note: Appeals from these decrees are dealt with in section 102A.
Child Support (Registration and Collection) Act 1988
5 Subsection 4(1)
Insert:
Family Law Magistrate of Western Australia has the same meaning as in the Family Law Act 1975.
6 After subsection 107A(1)
Insert:
(1A) An appeal lies, with the leave of the Family Court, to the Family Court from:
(a) a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Family Law Magistrate of Western Australia exercising in the Magistrates Court of Western Australia original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Note 1: The heading to section 107 is altered by adding at the end “and the Magistrates Court of Western Australia”.
Note 2: The heading to section 107A is altered by adding at the end “and the Magistrates Court of Western Australia”.
7 Subsections 107A(2), (4), (5), (6), (7) and (9)
After “subsection (1)” (wherever occurring), insert “or (1A)”.
8 At the end of section 108
Add:
(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree to which subsection 107A(1A) applies could be made, a question of law arises which:
(a) the Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:
(c) the Magistrate must state the facts and question in the form of a special case for the opinion of a Full Court; and
(d) a Full Court must hear and determine the question.
(6) The Full Court may draw, from the facts and the documents, any inference, whether of fact or of law, that could have been drawn from them by the Magistrate.
9 Before subsection 110(1)
Insert:
(1A) This section does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
Note: Appeals from these decrees are dealt with in section 107A.
Family Law Act 1975
10 Subsection 4(1)
Insert:
Family Law Magistrate of Western Australia means a person who holds office concurrently:
(a) as a magistrate under the Magistrates Court Act 2004 of Western Australia; and
(b) as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia.
11 Subsection 39(7)
Repeal the subsection, substitute:
(7) The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.
(7AAA) Without limiting the generality of subsection (7), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:
(a) proceedings of specified classes;
(b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;
(c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.
12 Subsection 46(1)
Omit “$20,000”, substitute “the ceiling amount”.
13 After subsection 46(1)
Insert:
(1AA) For the purposes of subsection (1), the ceiling amount is:
(a) if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia—the amount specified in the regulations; or
(b) otherwise—$20,000.
14 After subsection 46(2A)
Insert:
(2B) Subsection (2A) does not apply if the court is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
15 Subsection 69J(4)
After “in relation to”, insert “one or more of the following”.
16 Paragraph 69J(4)(a)
Omit “or”.
17 At the end of subsection 69J(4)
Add:
; (c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.
18 Paragraph 69N(1)(a)
After “summary jurisdiction”, insert “(other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia)”.
19 Paragraph 93A(1)(aa)
After “subsection 94AAA(1)”, insert “or (1A)”.
20 After subsection 94AAA(1)
Insert:
(1A) An appeal lies to the Family Court from:
(a) a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Family Law Magistrate of Western Australia exercising in the Magistrates Court of Western Australia original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Note 1: The heading to section 94 is altered by adding at the end “and the Magistrates Court of Western Australia”.
Note 2: The heading to section 94AAA is altered by adding at the end “and the Magistrates Court of Western Australia”.
21 Subsection 94AAA(2)
Omit “Subsection (1) has”, substitute “Subsections (1) and (1A) have”.
22 Subsections 94AAA(3), (5), (6), (7), (8) and (10)
After “subsection (1)” (wherever occurring), insert “or (1A)”.
23 Subsection 94AA(1) (at the end of the table)
Add:
| 5 | a prescribed decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia | the Family Court | (a) a single Judge of the Family Court (who need not be a member of the Appeal Division); or (b) a Full Court of the Family Court |
24 Subsection 94AA(2A)
After “subsection 94AAA(1)”, insert “or (1A)”.
25 At the end of section 94A
Add:
(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree or decision to which subsection 94AAA(1A) applies could be made, a question of law arises which:
(a) the Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:
(c) the Magistrate must state the facts and question in the form of a special case for the opinion of a Full Court of the Family Court; and
(d) a Full Court of the Family Court must hear and determine the question.
(6) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Magistrate.
26 Before subsection 96(1)
Insert:
(1AA) This section does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
Note: Appeals from these decrees are dealt with in section 94AAA.
27 Application
(1) The amendments made by items 3, 5, 8, 10 to 18 and 25 apply to proceedings instituted before or after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
(2) The amendments made by items 1, 2, 4, 6, 7, 9, 19, 20 to 24 and 26 apply to proceedings instituted after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
Part 2—Technical amendments
Family Law Act 1975
28 Paragraph 75(2)(g)
Omit “or” (second occurring).
29 Subsection 104A(2)
Omit “or” (second occurring).
30 Subsection 104A(3)
Omit “or” (second occurring).