Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012

No. 32, 2012 as amended

Compilation start date: 12 April 2013

Includes amendments up to: Act No. 13, 2013

About this compilation

The compiled Act

This is a compilation of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 as amended and in force on 12 April 2013. It includes any amendment affecting the compiled Act to that date.

This compilation was prepared on 29 April 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled Act is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is set out in the endnotes.

Modifications

If a provision of the compiled Act is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled Act has expired or otherwise ceased to have effect in accordance with a provision of the Act, details of the provision are set out in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Schedule(s) 2

Schedule 1—Validation of certain orders 3

Part 1—Orders relating to de facto financial causes 3

Part 2—Orders on appeal from Family Law Magistrates of Western Australia 9

Schedule 2—Amendments 14

Family Law Act 1975 14

Endnotes 15

Endnote 1—Legislation history 15

Endnote 2—Amendment history 16

Endnote 3—Application, saving and transitional provisions 17

Endnote 4—Uncommenced amendments 18

Endnote 5—Misdescribed amendments 19

An Act to validate certain orders etc. under the Family Law Act 1975 and to amend that Act, and for related purposes

1 Short title

This Act may be cited as the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012.

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	Commencement information	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 this Act receives the Royal Assent.	10 April 2012
2. Schedule 1	The day after this Act receives the Royal Assent.	11 April 2012
3. Schedule 2	A single day to be fixed by Proclamation. However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	21 April 2012 (see F2012L00894)

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be 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.

Validation of certain orders 1 Interpretation 1

In this Part:

affected order: see subitems 2(4) and (5).

assumed matters: see subitem 2(1).

court, except in items 5 and 6, has the same meaning as in the Family Law Act 1975, and also includes a court exercising jurisdiction in relation to a matter arising under this Part.

Family Court means the Family Court of Australia.

liability includes a duty, responsibility or obligation.

order includes a decree, judgement, declaration, injunction, direction or other decision.

order-based rights or liabilities: see subitem 3(1).

Registrar means:

right includes an interest, status, power or authority.

a

(a) a Registrar within the meaning of the Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 37A of the Family Law Act 1975; or

b

(b) a Judicial Registrar appointed under Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 26B of that Act; orsection 26A of the

c

(c) a Registrar within the meaning of the Federal Magistrates Act 1999, to the extent that his or her powers were or are exercised:

i

under section 102 of that Act; or

ii

under a delegation of the Federal Magistrates Court’s powers under Rules of Court made under section 103 of that Act.

2

(2) Any other expression has the same meaning in this Part as in the Family Law Act 1975.

2 Rights and liabilities of persons 1

(1) Subject to subitem (3), the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if the following matters (the assumed matters) had been the case:

a

(a) a Proclamation had been made under subsection 40(2) of the Family Law Act 1975 (as in force before the commencement of this Part), fixing 1 March 2009 as the date on and after which the jurisdiction of the Family Court under paragraph 31(1)(aa) of that Act could be exercised in the following States and Territories:

i

New South Wales;

ii

Victoria;

iii

Queensland;

iv

Tasmania;

v

the Australian Capital Territory;

vi

the Northern Territory;

vii

Norfolk Island;

b

(b) a Proclamation had been made under subsection 40(2) of the Family Law Act 1975 (as in force before the commencement of this Part), fixing 1 July 2010 as the date on and after which the jurisdiction of the Family Court under paragraph 31(1)(aa) of that Act could be exercised in South Australia;

c

each of those Proclamations had been in force at all times from the start of the date fixed by the Proclamation to the end of 10 February 2012.

2

Without limiting the effect of subitem (1):

a

all persons are, by force of this item, declared to be, and always to have been, entitled to act on the basis that other persons had, and have, the rights and liabilities as declared by subitem (1); and

b

a right or liability that a person is declared by subitem (1) to have, or to have had:

i

is exercisable or enforceable; and

ii

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

as if the assumed matters had been the case; and

in the exercise of jurisdiction under the Family Law Act 1975 in respect of matters referred to in paragraph 31(1)(aa) or subsection 39B(1) of that Act; or

Note: If the affected order was declared or held to be invalid before the commencement of this Part, this Part does not apply in relation to the order: see item 5.

c

the rights and liabilities that a person is declared by subitem (1) to have, or to have had, include any right the person would have or have had, if the assumed matters had been the case, to appeal, or to seek review of, an affected order.

3

Subitem (1) does not apply to liabilities arising from a conviction (or purported conviction), before the commencement of this Part, of a person for an offence that relates to a de facto financial cause.

4

(4) Subject to subitem (5), an affected order is:

a

an order purportedly made, before 11 February 2012, by:

i

the Family Court; or

ii

the Federal Magistrates Court; or

iii

a Registrar;

b

an award purportedly:

i

made in section 13E arbitration, or in relevant property or financial arbitration; and

ii

(ii) registered in the Family Court, or the Federal Magistrates Court, under Family Law Act 1975 before 11 February 2012 in the exercise of jurisdiction under the Family Law Act 1975 in respect of matters referred to in paragraph 31(1)(aa) or subsection 39B(1) of that Act; orsection 13H of the

c

an order purportedly made, before the commencement of this Part, on appeal from, or review of, an order or award referred to in paragraph (a) or (b) of this subitem.

5

(5) If, before the commencement of this Part, a court or Registrar purported to vary, revoke, set aside, revive or suspend an order or award referred to in subitem (4), the affected order is that order or award in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

3 Additional provisions relating to order-based rights or liabilities

Item applies to order-based rights or liabilities

New order made on basis that affected order was or might be invalid

item 2 is to be regarded as having ceased to have effect, in relation to the order-based rights or liabilities, when the new order took effect.

Note 1: If the affected order was declared or held to be invalid before the commencement of this Part, this Part does not apply in relation to the order: see item 5.

Note 2: If the new order was made before 11 February 2012, the new order may itself be an affected order that gives rise to order-based rights and liabilities.

Variation, revocation etc. of order-based rights or liabilities

Generality of item 2 not limited

1

(1) This item applies in relation to rights or liabilities (order-based rights or liabilities):

a

that a person is declared by item 2 to have; and

b

that were purportedly conferred, imposed or affected by an affected order.

2

If:

a

(a) before the commencement of this Part, a court or Registrar made an order (the new order) on the basis that the affected order was or might be invalid; and

b

the new order:

i

conferred or imposed rights or liabilities similar to or different from those purportedly conferred or imposed by the affected order; or

ii

affected rights or liabilities in the same way as they were purportedly affected by the affected order or in a different way;

3

(3) A court or Registrar may vary, revoke, set aside, revive or suspend an order-based right or liability in the same way as the court or Registrar could do so if the assumed matters had been the case.

4

(4) In addition to the powers of a court or Registrar under subitem (3), a court or Registrar also has power to make an order achieving any other result that could have been achieved if:

a

the assumed matters had been the case; and

b

the court or Registrar had been considering whether to vary, revoke, set aside, revive or suspend the affected order.

5

Nothing in this item limits the generality of item 2.

4 Evidence

The court record, or a copy of the court record, of an affected order may be adduced in evidence to show the existence, nature and extent of an order-based right or liability.

5 Part does not apply to certain orders

Nothing in this Part applies to an order declared or held to be invalid, or to have been made without power, by a court before the commencement of this Part.

6 Jurisdiction of courts 1

Subject to subitem (3), jurisdiction is conferred on:

a

the Family Court; and

b

the Federal Magistrates Court; and

c

the Supreme Court of the Northern Territory; and

d

each court of summary jurisdiction of each Territory;

with respect to matters arising under this Part.

2

Subject to subitem (3), each court of summary jurisdiction of each referring State is invested with federal jurisdiction with respect to matters arising under this Part.

3

(3) A court only has jurisdiction with respect to a matter arising under this Part if it has jurisdiction with respect to an equivalent matter arising under the Family Law Act 1975. The court’s jurisdiction under this Part is subject to the same conditions and limitations as would apply to it in dealing with the equivalent matter.

6A Effect of change of name of Federal Magistrates Court

To the extent that this Part applies after the commencement of Schedule 2 to the Federal Circuit Court of Australia Legislation Amendment Act 2012:

a

(a) a reference in this Part to the Federal Magistrates Act 1999 is taken to include a reference to the Federal Circuit Court of Australia Act 1999; and

b

a reference in this Part to the Federal Magistrates Court is taken to include a reference to the Federal Circuit Court of Australia.

7 Interpretation 1

In this Part:

affected order: see subitems 8(4) and (5).

assumed matters: see subitem 8(1).

court, except in items 11 and 12, has the same meaning as in the Family Law Act 1975, and also includes a court exercising jurisdiction in relation to a matter arising under this Part.

Family Court means the Family Court of Australia.

liability includes a duty, responsibility or obligation.

order includes a decree, judgement, declaration, injunction, direction or other decision.

order-based rights or liabilities: see subitem 9(1).

Registrar means:

right includes an interest, status, power or authority.

a

(a) a Registrar within the meaning of the Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 37A of the Family Law Act 1975; or

b

(b) a Judicial Registrar appointed under Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 26B of that Act; orsection 26A of the

c

(c) a Registrar within the meaning of the Federal Magistrates Act 1999, to the extent that his or her powers were or are exercised:

i

under section 102 of that Act; or

ii

under a delegation of the Federal Magistrates Court’s powers under Rules of Court made under section 103 of that Act; or

d

(d) the Principal Registrar, a deputy registrar or a registrar of the Family Court of Western Australia, to the extent that his or her powers were or are exercised under a delegation of that Court’s powers under rules made under Family Court Act 1997 of Western Australia.section 33 of the

2

(2) Any other expression has the same meaning in this Part as in the Family Law Act 1975.

8 Rights and liabilities of persons 1

(1) Subject to subitem (3), the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if the following matters (the assumed matters) had been the case:

a

(a) a Proclamation had been made under subsection 40(2) of the Family Law Act 1975 (as in force before the commencement of this Part), fixing 1 July 2006 as the date on and after which the jurisdiction of the Family Court under paragraph 93A(1)(aa) of that Act could be exercised, in Western Australia, in respect of appeals under subsection 94AAA(1A) of that Act;

b

that Proclamation had been in force at all times from the start of 1 July 2006 to the end of 20 October 2011.

2

Without limiting the effect of subitem (1):

a

all persons are, by force of this item, declared to be, and always to have been, entitled to act on the basis that other persons had, and have, the rights and liabilities as declared by subitem (1); and

b

a right or liability that a person is declared by subitem (1) to have, or to have had:

i

is exercisable or enforceable; and

ii

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

as if the assumed matters had been the case; and

Note: If the affected order was declared or held to be invalid before the commencement of this Part, this Part does not apply in relation to the order: see item 11.

c

the rights and liabilities that a person is declared by subitem (1) to have, or to have had, include any right the person would have or have had, if the assumed matters had been the case, to appeal, or to seek review of, an affected order.

3

Subitem (1) does not apply to liabilities arising from a conviction (or purported conviction), before the commencement of this Part, of a person for an offence that relates to proceedings on an appeal under subsection 94AAA(1A).

4

(4) Subject to subitem (5), an affected order is:

a

(a) an order purportedly made, before 21 October 2011, by the Family Court in the exercise of jurisdiction under paragraph 93A(1)(aa) of the Family Law Act 1975 in respect of an appeal under subsection 94AAA(1A) of that Act; or

b

an order purportedly made, before the commencement of this Part, on appeal from, or review of, an order referred to in paragraph (a) of this subitem.

5

(5) If, before the commencement of this Part, a court or Registrar purported to vary, revoke, set aside, revive or suspend an order referred to in subitem (4), the affected order is that order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

9 Additional provisions relating to order-based rights or liabilities

Item applies to order-based rights or liabilities

Variation, revocation etc. of order-based rights or liabilities

Generality of item 8 not limited

1

(1) This item applies in relation to rights or liabilities (order-based rights or liabilities):

a

that a person is declared by item 8 to have; and

b

that were purportedly conferred, imposed or affected by an affected order.

2

(2) A court or Registrar may vary, revoke, set aside, revive or suspend an order-based right or liability in the same way as the court or Registrar could do so if the assumed matters had been the case.

3

(3) In addition to the powers of a court or Registrar under subitem (2), a court or Registrar also has power to make an order achieving any other result that could have been achieved if:

a

the assumed matters had been the case; and

b

the court or Registrar had been considering whether to vary, revoke, set aside, revive or suspend the affected order.

4

Nothing in this item limits the generality of item 8.

10 Evidence

The court record, or a copy of the court record, of an affected order may be adduced in evidence to show the existence, nature and extent of an order-based right or liability.

11 Part does not apply to certain orders

Nothing in this Part applies to an order declared or held to be invalid, or to have been made without power, by a court before the commencement of this Part.

12 Jurisdiction of courts 1

Subject to subitem (3), jurisdiction is conferred on:

a

the Family Court; and

b

the Federal Magistrates Court; and

c

the Supreme Court of each Territory; and

d

each court of summary jurisdiction of each Territory;

with respect to matters arising under this Part.

is invested with federal jurisdiction with respect to matters arising under this Part.

2

Subject to subitem (3):

a

the Family Court of Western Australia; and

b

each court of summary jurisdiction of each State;

3

(3) A court only has jurisdiction with respect to a matter arising under this Part if it has jurisdiction with respect to an equivalent matter arising under the Family Law Act 1975. The court’s jurisdiction under this Part is subject to the same conditions and limitations as would apply to it in dealing with the equivalent matter.

13 Effect of change of name of Federal Magistrates Court

To the extent that this Part applies after the commencement of Schedule 2 to the Federal Circuit Court of Australia Legislation Amendment Act 2012:

a

(a) a reference in this Part to the Federal Magistrates Act 1999 is taken to include a reference to the Federal Circuit Court of Australia Act 1999; and

b

a reference in this Part to the Federal Magistrates Court is taken to include a reference to the Federal Circuit Court of Australia.

Amendments

Family Law Act 1975

1 Section 40 (heading)

Repeal the heading, substitute:

40 Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts 2 Subsections 40(1) and (2)

Repeal the subsections, substitute:

1

(1) The regulations may provide that, from a date specified in the regulations (not being a date before the regulations are registered under the Legislative Instruments Act 2003), the jurisdiction of the Family Court under this Act in relation to all proceedings, or a specified class of proceedings, must not be exercised in a specified State or Territory, or in 2 or more specified States and Territories.

3 Subsection 40(5)

Omit “subsections (2) and (3)”, substitute “subsection (3)”.

4 Application of amendments

The amendments made by this Schedule apply in relation to the exercise of jurisdiction after the commencement of this Schedule (even if the proceedings in which the jurisdiction is exercised were initiated before that commencement).

Endnotes

Endnote 1—Legislation history

This endnote sets out details of the legislation history of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012.

Endnote 2—Amendment history

This endnote sets out the amendment history of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012.

Endnote 3—Application, saving and transitional provisions

This endnote sets out application, saving and transitional provisions for amendments of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012.

There are no application, saving or transitional provisions.

Endnote 4—Uncommenced amendments

This endnote sets out amendments of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 that have not yet commenced.

There are no uncommenced amendments.

Endnote 5—Misdescribed amendments

This endnote sets out amendments of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 that have been misdescribed.

There are no misdescribed amendments.