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

No. 148, 1997

Compilation No. 1

Compilation date: 1 September 2021

Includes amendments up to: Act No. 13 of 2021

Registered: 9 November 2021

About this compilation

This compilation

This is a compilation of the Family Court of Western Australia (Orders of Registrars) Act 1997 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Interpretation 1

4 Meaning of ineffective order 2

5 Rights and liabilities declared in certain cases 3

6 Effect of declared rights and liabilities 4

7 Effect of things done or omitted to be done under or in relation to rights and liabilities 4

8 Section 5 regarded as having ceased to have effect in certain cases 6

9 Powers of courts in relation to declared rights and liabilities 7

10 Evidence 8

11 Act does not apply to certain orders 8

12 Jurisdiction of courts 8

Endnotes 9

Endnote 1—About the endnotes 9

Endnote 2—Abbreviation key 11

Endnote 3—Legislation history 12

Endnote 4—Amendment history 13

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

This Act may be cited as the Family Court of (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 .

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.

 a

(a) the Family Law Act 1975; or

 b

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

 c

(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

(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 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

(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

(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

(3) Provisions of a parenting plan that a Registrar has purported to register under 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.section 63E of the

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

(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

(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

(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

(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

(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

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

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

(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 of Australia before the commencement of the corresponding Western Australian Act.
12 Jurisdiction of courts 1

Subject to subsection (3), jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 1) and the Supreme Court of the , 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

(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.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x /sub-subparagraph(s)
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
No. = Number(s) commenced or to be commenced

Endnote 3—Legislation history
Act Number and year Assent Commencement Application, saving and transitional provisions
Family Court of Western Australia (Orders of Registrars) Act 1997 148, 1997 17 Oct 1997 17 Oct 1997 (s 2)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 13, 2021 1 Mar 2021 Sch 2 (items 417, 418): 1 Sept 2021 (s 2(1) item 5) —

Endnote 4—Amendment history
Provision affected How affected
s 11 am No 13, 2021
s 12 am No 13, 2021