Federal Register of Legislation - Australian Government

Primary content

Family Law Regulations (Amendment)

Authoritative Version
  • - F1996B04134
  • No longer in force
SR 1988 No. 165 Regulations as made
These Regulations amend the Family Law Regulations.
Administered by: Attorney-General's
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR23-Aug-1988
Tabled Senate24-Aug-1988
Gazetted 30 Jun 1988
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

EXPLANATORY STATEMENT

Subject -          Family Law Regulations (Amendment)

(Statutory Rules 1988 No. 165)

The purpose of these regulations is to prescribe a magistrates court in Western Australia so that it may entertain undefended applications for dissolution of marriage.

Previously, no court of summary jurisdiction was able to hear divorce applications. Subsection 39(6) of the Family Law Act 1975 provides that each court of summary jurisdiction is invested with federal jurisdiction with respect to “matrimonial causes, not being proceedings for principal relief” (and with respect to certain other matters which are not here relevant).

Subsection 4(1) of that Act contains the following definitions:

•           ”matrimonial cause” means -

(a)        proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of -

(i)         dissolution of marriage; or

(ii)        nullity of marriage;

•           ”proceedings for principal relief” means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of “matrimonial cause” in this subsection.


 

The effect of subsection 39(6) is therefore that courts of summary jurisdiction do not have jurisdiction to entertain applications for dissolution of marriage.

Section 23 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988, which came into operation on 1 July 1988, amended subsection 39(6) to replace the words “, not being proceedings for principal relief,” with the words “(other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of ‘matrimonial cause’ in subsection 4(1))”. This had the effect of conferring jurisdiction on courts of summary jurisdiction in relation to applications for dissolution.

Section 24 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act, which also came into operation on 1 July 1988, inserted a new section 44A into the Family Law Act to state that regulations may provide that proceedings for a decree of dissolution of marriage may not be instituted in, or transferred to, a court of summary jurisdiction other than a prescribed court.

At this stage the only court of summary jurisdiction which federal and State authorities have agreed is suitable to be prescribed under section 44A is a court constituted by a stipendiary magistrate who is the Registrar or a Deputy Registrar of the Family Court of Western Australia.

It is expected that, in due course, other courts of summary jurisdiction will be prescribed under section 44A.

Notwithstanding the fact that section 24 had not yet come into operation, there was power to make the proposed regulations. Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act that is not to come into operation immediately upon its enactment is expressed to amend another Act in such a manner that the other Act, as amended, will confer power to make an instrument of a legislative character (including regulations), then, unless the contrary intention


appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the instrument into effect, before the Act concerned comes into operation as if it had come into operation.

The regulations commenced when section 24 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act came into operation.