ECKETT & ECKETT - [2010] FamCAFC 39

FAMILY COURT OF AUSTRALIA

ECKETT & ECKETT

[2010] FamCAFC 39

FAMILY LAW - JURISDICTION OF FAMILY COURT OF AUSTRALIA – Proper avenue of appeal from Family Law Magistrates – Western Australian family law system – Statutory interpretation – Interpretation of “application” provisions – Family Law Act 1975 (Cth), s 94AAA(1A)

FAMILY LAW - APPEAL – From decision of Family Law Magistrate in the Magistrates Court of Western Australia – Parties agreed appeal had merit – Appeal allowed – Remitted for rehearing – Costs certificates granted

Acts Interpretation Act 1901 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Court Act 1975 (WA)
Family Court Act 1997 (WA)
Family Law Amendment Act 2000 (Cth)
Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Jurisdiction of Courts (Family Law) Act 2006 (Cth)
Magistrates Court Act 2004 (WA)
Matrimonial Causes Act 1959 (Cth)

Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
DJL v Central Authority (2000) 201 CLR 226
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Maxwell v Murphy (1957) 96 CLR 261
Nowland and Nowland (1977) FLC 90‑236
R v Kidman (1915) 20 CLR 425
Sutton and Clark (1976) FLC 90‑121

APPELLANT:

Mr Eckett

RESPONDENT:

Ms Eckett

FILE NUMBER:

PTW

6464

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

12 March 2010

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Coleman, Warnick and Thackray JJ

HEARING DATE:

21 October 2009

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

21 May 2009

LOWER COURT MNC:

(Unreported, Magistrates Court of Western Australia, Fleming M, 21 May 2009)

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Dickey QC

SOLICITOR FOR THE APPELLANT:

DCH Legal Group

COUNSEL FOR THE RESPONDENT:

Mr Moser

SOLICITOR FOR THE RESPONDENT:

Calverley Johnston

Orders

That the appeal be allowed.

That the matter be remitted for further interim hearing before a magistrate other than Magistrate Fleming.

That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

That by consent, and until further order it is ordered that:-

(a)The children, M ECKETT born … 2000 and B ECKETT born … 2003, live with the Respondent, MS ECKETT.
(b)The Appellant, MR ECKETT, spend time with the said children each alternate weekend from after school Friday until commencement of school Monday extending to commencement of school Tuesday in the event of a long weekend.

IT IS NOTED that publication of this judgment under the pseudonym Eckett & Eckett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 12 of 2009
File Number: PTW 6464 of 2008

Mr Eckett

Appellant

And

Ms Eckett

Respondent

REASONS FOR JUDGMENT

On 21 October 2009 we allowed an appeal against orders made by a Family Law Magistrate in the Magistrates Court of Western Australia.
The respondent conceded the appeal had merit but submitted that the Full Court of the Family Court of Australia lacked power to hear it. It was argued that the appeal could only be determined by a Judge of the Family Court of Western Australia by way of a hearing de novo.
Having heard argument we concluded the appeal was competent. We ordered a rehearing by another Family Law Magistrate and granted costs certificates to both parties for the appeal and for the rehearing. These are our reasons.

Background

The outcome of the appeal turned on the construction of one provision of the Jurisdiction of Courts (Family Law) Act 2006 (Cth). Amongst other things, that Act made a number of changes to federal legislation dealing with appeals from the Magistrates Court of Western Australia. In order to place these changes in context it is important we provide some background concerning the way in which federal family law jurisdiction is exercised in Western Australia.
The unique features of the Western Australian system find their origin in s 41 of the Family Law Act 1975 (Cth), which authorised the Commonwealth to enter into agreements with the governments of each of the States providing for the creation of State Family Courts. Western Australia was the only State to take up the option, with the intention that it would have one specialist Family Court exercising both state and federal jurisdiction.
The Family Court of Western Australia was duly established by the Family Court Act 1975 (WA). The Court has subsequently been continued by the Family Court Act 1997 (WA), which repealed the 1975 legislation.
By operation of ss 41(3) and 69H(2) of the Family Law Act 1975 (and other legislation such as the Child Support (Assessment) Act 1989 (Cth)) the Family Court of Western Australia is invested with the same federal jurisdiction as that conferred on the Family Court of Australia.
Courts of summary jurisdiction in Western Australia also have the limited family law jurisdiction conferred on all State and Territory courts of summary jurisdiction by operation of ss 39(6) and 69J(1) of the Family Law Act 1975.
The Family Court of Western Australia is constituted by the Chief Judge and other Judges appointed by the Governor of Western Australia. The Judges of the Court are assisted in the discharge of their duties by a Principal Registrar and Registrars (although at the time the Court was established those holding these offices were known as “the Registrar” and “Deputy Registrars”).
Section 39(7) of the Family Law Act 1975 permits the Governor-General to terminate by proclamation the jurisdiction under the Act of nominated courts of summary jurisdiction of a State. Such a proclamation was duly made on 1 June 1976 in relation to the Court of Petty Sessions of Western Australia (the predecessor of the Magistrates Court of Western Australia) to coincide with the commencement of the Family Court of Western Australia. The proclamation was limited to the Perth metropolitan region. As a consequence all proceedings under the Family Law Act 1975 filed in Perth were to be determined by either a Judge or a Registrar of the Family Court of Western Australia.
By proclamation made on 28 November 1979 the Governor of Western Australia directed that a Court of Petty Sessions should be held at the premises on which the Family Court of Western Australia was then located. Shortly thereafter the Governor-General revoked the previous proclamation preventing the Court of Petty Sessions from exercising family law jurisdiction in the Perth metropolitan region. This was replaced by a proclamation in similar terms, save that on this occasion the proclamation did not apply to the premises of the Family Court of Western Australia – thereby permitting the Court of Petty Sessions located on those premises to exercise federal family law jurisdiction.
The then (Principal) Registrar of the Family Court of Western Australia was duly appointed as a Magistrate of the Court of Petty Sessions and was allocated to sit in that capacity at the premises of the Family Court of Western Australia. Over time, all of the other Registrars were also appointed as State Magistrates. Those so appointed continued to hold office concurrently as the Principal Registrar or Registrar of the Family Court of Western Australia.
Although there were now two Courts located on the same premises, all applications continued to be filed in the Family Court of Western Australia. It is not in contention that the court of summary jurisdiction co-located at the Family Court premises has always operated as if it was a division of the Family Court of Western Australia (albeit the Chief Stipendiary Magistrate of Western Australia originally had formal authority to direct the duties to be performed by the “Family Court Magistrates”).
These arrangements necessitated a process for the distribution of work between Judges and Magistrates. At the time of filing of each new application an administrative decision was made to list the matter before either a Judge or a Magistrate. Each day, a Judge of the Family Court of Western Australia made an order transferring all matters listed for hearing before Magistrates that day to the court of summary jurisdiction. At the end of the day, the Magistrates transferred back to the Family Court any matters that had not been finalised.
The transfer orders giving effect to these arrangements were made pursuant to s 45(2) of the Family Law Act 1975, which relevantly provides:
(2) Where there are pending in a court proceedings that have been instituted under this Act… and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court. …
It will be seen that s 45(2) does not expressly provide for transfer orders to be made on the Court’s own motion. In order to avoid doubt as to the validity of orders being made without application by either party, the Family Law Amendment Act 2000 (Cth) inserted ss 45(3) and 45(4) into the principal Act. Those subsections are in the following terms:
(3)A transfer under subsection (2) may be made on the application of any party to the proceedings.
(4)A transfer under subsection (2) may be made on the transferring court’s own initiative if the transfer is:
(a)from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or
(b)from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State.
It will be seen that s 45(4) is restricted to transfers involving a “Family Court of a State”. As there is only one State with its own Family Court, the provision was clearly designed to deal with the practice in Western Australia of such orders being made on the Court’s own motion.
The regulations referred to in s 45(4), which also serve another purpose, prescribe only three courts. One of these is “a court constituted by a stipendiary magistrate who is the Principal Registrar, or a Registrar, of the Family Court of Western Australia”.
As already noted, the Registrars of the Family Court of Western Australia were originally appointed as Magistrates of the Court of Petty Sessions. That Court was abolished by the Magistrates Court Act 2004 (WA) and a new court, the Magistrates Court of Western Australia, was established. The Registrars of the Family Court of Western Australia who had previously been appointed as Magistrates were duly appointed as Magistrates of the new court.
At the same time as the Magistrates Court of Western Australia was established, the Family Court Act 1997 was amended to confer the title “Family Law Magistrate” on those Magistrates who also concurrently held office as either the Principal Registrar or Registrar of the Family Court of Western Australia. The Magistrates Court Act 2004 gave power to the Chief Judge of the Family Court of Western Australia to assign duties to the Family Law Magistrates, thereby emphasising the way in which it was accepted that the two courts operate as if they are one.
In 2006 the Commonwealth Parliament enacted the Jurisdiction of Courts (Family Law) Act 2006. This amended the Family Law Act 1975 by inserting a definition of “Family Law Magistrate of Western Australia” as meaning a person who holds office concurrently as a Magistrate under the Magistrates Court Act 2004 and as the Principal Registrar or Registrar of the Family Court of Western Australia. The legislation also made a variety of substantive amendments to the Family Law Act 1975, the effect of which was to treat the Family Law Magistrates of Western Australia differently from other Magistrates sitting in courts of summary jurisdiction.
In the discussion that follows we will refer to the Jurisdiction of Courts (Family Law) Act 2006 as “the 2006 Amendment Act” and we will refer to the Family Law Magistrates of Western Australia as “the Family Law Magistrates”.

The appeal provisions

At the time the Family Law Act1975 came into operation there was a limited right of appeal from State and Territory Magistrates exercising family law jurisdiction (see Sutton and Clark (1976) FLC 90‑121 and Nowland and Nowland (1977) FLC 90‑236). The limitations were removed in 1979 when the legislation was amended to provide that appeals from courts of summary jurisdiction would henceforth proceed by way of hearing de novo (see s 96(4)).
Appeals from State and Territory Magistrates exercising federal family law jurisdiction were heard by a single Judge of the Family Court of Australia unless the Judge conducting the appeal decided to refer the appeal to the Full Court of the Family Court (see s 96(5)). Appeals from State Magistrates in Western Australia were heard by a single Judge of the Family Court of Western Australia, exercising the authority conferred by s 41(3) of the Family Law Act 1975.
Different appeal provisions were enacted in 2000 for the newly created Federal Magistrates Court of Australia (“the FMC”), which was invested with a family law jurisdiction more extensive than that enjoyed by State and Territory Magistrates. Section 94AAA(1) of the Family Law Act 1975 provides that an appeal from a decree of a Federal Magistrate lies to the Family Court of Australia. The jurisdiction must be exercised by a Full Court unless the Chief Justice of the Family Court of Australia considers it is appropriate to be exercised by a single Judge (see 94AAA(3)).
The powers of the Family Court of Australia when hearing an appeal from the FMC are found in s 94AAA(6) of the Family Law Act 1975. These are identical to the powers conferred by s 94(2) of that Act, which governs appeals from decrees of Judges of the Family Court of Australia and the Family Court of Western Australia. The nature of appeals brought pursuant to s 94(2) has been explained by the High Court on a number of occasions – see CDJ v VAJ (1998) 197 CLR 172, Allesch v Maunz (2000) 203 CLR 172 and DJL v Central Authority (2000) 201 CLR 226. The most significant difference for present purposes between s 94(2) appeals and appeals by way of hearing de novo is that in the former the appellate court proceeds (subject to exceptions relating to the introduction of further evidence) on the basis that error must be demonstrated before it will intervene, whereas in an appeal by way of hearing de novo the unsuccessful party is effectively given a “second chance”: see Allesch v Maunz (supra at [22] per Gaudron, McHugh, Gummow and Hayne JJ).
The new FMC appeal provisions had no impact in Western Australia as the FMC is not authorised to exercise family law jurisdiction in that State (by operation of s 40A of the Family Law Act 1975).Appeals from Western Australian Magistrates who were also Registrars of the Family Court of Western Australia therefore initially continued to proceed by way of hearing de novo. This changed upon commencement of the 2006 Amendment Act.
The structure of the 2006 Amendment Act follows the format now routinely employed by the Commonwealth Parliament when making amendments to existing statutes. The Act contains only three sections. Section 1 is a formal provision. Section 2, entitled “Commencement”, deals with the date on which various parts of the legislation commenced or were taken to have commenced.
Section 3, which is entitled “Schedule(s)”, provides that:
3.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.
There is only one schedule to the 2006 Amendment Act and it is divided into two Parts. The second Part deals with “Technical amendments” and need not concern us. The first Part is entitled “Amendments relating to the Magistrates Court of Western Australia” and contains provisions amending child support legislation and the Family Law Act 1975. Some of these allowed for the promulgation of regulations to provide special jurisdictional limits for proceedings heard by the Family Law Magistrates. Others effected changes to the appeal process from decrees made by those Magistrates.
Part 1 of Schedule 1 contains 27 different items. We will confine our discussion to those pertaining to appeals from Family Law Magistrates exercising jurisdiction under the Family Law Act 1975.
Item 20 provided for the insertion in the Family Law Act 1975 of a new subsection 94AAA(1A). It was in the following terms:
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.
It will be noted that an appeal from the Family Law Magistrates lies to “the Family Court”. Section 4(1A) of the Family Law Act 1975 defines “the Family Court” as meaning “the Family Court of Australia” and is used in contradistinction to “a Family Court of a State”. Thus, on its face, the new s 94AAA(1A) requires appeals from a Family Law Magistrate to be determined by the Family Court of Australia and not by the Family Court of Western Australia.
Other amendments to s 94AAA of the Family Law Act 1975 contained in Part 1 of Schedule 1 were designed to ensure that all of the provisions of that section which hitherto had applied only to FMC appeals, now applied to appeals from Family Law Magistrates. For example, s 94AAA(3) was amended to require an appeal from a Family Law Magistrate to be heard by a Full Court, unless the Chief Justice determines it is appropriate for it to be heard by a single Judge.
Importantly, item 26 of Schedule 1 inserted a new section, s 96(1AA), in the Family Law Act 1975. This provides that s 96 of that Act “does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia”. (It will be recalled that s 96 provides that appeals from courts of summary jurisdiction will proceed by way of hearing de novo.) Thus, read alone, the amended s 96 appears to have no application to appeals from Family Law Magistrates. The Act now provides that such appeals must proceed in the same way as those from the FMC – i.e. to the Family Court of Australia and not by way of hearing de novo.

The commencement and application of the 2006 Amendment Act

Section 2 of the 2006 Amendment Act provides that each provision of the Act “commences, or is taken to have commenced” in accordance with a table contained in that section. The effect of the section (and a subsequent Proclamation) is that Part 1 of Schedule 1 commenced on 1 July 2006. Lest there be any doubt what “commenced” means in this context, s 3 of the Acts Interpretation Act 1901 (Cth) makes clear that the amendments came “into operation” on that date.
Item 27 of Schedule 1 is the critical provision to be considered in this appeal. Before setting out its content we should refer to its heading, namely “Application”. This heading sets it apart from the headings to all the other 26 items in Part 1 of the schedule (and all of the headings in Part 2 of the schedule). Each of the other items has a heading describing the place in each of the relevant pieces of legislation where amendments were to be made either by insertion or omission of words (and in one instance by the repeal of a provision and the substitution of another).
The obvious importance of this difference can be seen from the terms of s 3 of the 2006 Amendment Act, which for convenience we will repeat:
3.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.
The first portion of s 3 clearly applies to every item in the schedule (save for item 27) since each of these is directed to the amendment of an identified piece of legislation. It is only item 27 to which the second part of s 3 has any application, since it is only that item which does not purport to amend any legislation. Its sole purpose, as its heading implies, is to make provision for the “application” of the amendments brought about by all the other items. Item 27 therefore “has effect according to its terms”.
Item 27 is expressed in the following terms:
(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.
It will be recalled that it was items 20 and 26 that brought about the amendments apparently requiring appeals from Family Law Magistrates to be heard by the Family Court of Australia in the same fashion as an FMC appeal. Therefore, by operation of sub-item 27(2), those amendments have application only 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”.
We will turn now to consider the submissions made on behalf of each of the parties as to the meaning and operation of these critical words.

The respondent’s submissions

We will deal first with the respondent’s submissions, since it is the respondent who has raised the jurisdictional objection with which we are concerned.
The respondent contends that the amendments effected by items 20 and 26 have no application because the proceedings giving rise to the appeal were not instituted in the Magistrates Court of Western Australia but rather were instituted in the Family Court of Western Australia and then transferred to the Magistrates Court of Western Australia.
It was conceded by counsel for the respondent that if his argument was accepted, none of the amendments made by the 2006 Amendment Act would have had any practical effect since no family law proceedings have ever been instituted in “the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia”.
In seeking to stress the importance of the distinction between proceedings instituted in the Court and proceedings transferred to the Court, counsel for the respondent drew attention to the fact that in a number of places in the Family Law Act 1975 a clear distinction is made between such proceedings. He referred in particular to ss 39C(1), 40(3) and 46(2A) but we will recite only s 46(2A) to illustrate the point being made: (our emphasis added):
(2A)    If:
(a) proceedings for a divorce order have been instituted in or transferred to a court of summary jurisdiction; and
(b)      the proceedings are defended;
the court is required to transfer the proceedings to:
(c)      the Family Court; or
(d)      the Supreme Court of a State or Territory; or
(e)       the Federal Magistrates Court.
On the analysis advocated by counsel for the respondent, s 96(1AA), which provides that s 96 of the Family Law Act 1975 has no application to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate, itself has no application to proceedings instituted in the Family Court of Western Australia and then transferred to the Magistrates Court. This is because s 96(1AA) was inserted in the Act by item 26 of Schedule 1 to the 2006 Amendment Act and that item is said to have application only to proceedings instituted in the Magistrates Court. If this argument were correct, when seeking to ascertain the appeal process in a case where the proceedings were transferred to the Magistrates Court, the Family Law Act 1975 must be read as if s 96(1AA) had never been enacted. It is acknowledged that the Act would then be silent on the process to be followed in such a case.
Counsel for the respondent observed that by operation of s 15AA of the Acts Interpretation Act 1901 (“the Interpretation Act”) a provision of an Act is to be construed so that it promotes the purpose or object underlying the Act in preference to a construction that would not promote that purpose. He acknowledged this was of no assistance in the present case since the 2006 Amendment Act does not state a purpose, nor does it contain a statement of objects.
Counsel for the respondent then observed that s 15AB of the Interpretation Act permits a court to consider “extrinsic material” to either confirm that “the meaning of the provision is the ordinary meaning conveyed by the text of the provision” or to determine the meaning of the provision when the provision is ambiguous or obscure or “the ordinary meaning conveyed by the text … leads to a result that is manifestly absurd or is unreasonable”.
Counsel submitted that reference to the Explanatory Memorandum to the 2006 Amendment Act supported his primary argument. He relied upon the first two paragraphs of the Explanatory Memorandum, which were in these terms (underlining added by counsel):
The intention of the Bill is to provide the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia with substantially the same jurisdiction and appeal structure in relation to family law and child support matters as the Federal Magistrates Court.
The intention of these amendments is to achieve a similar objective to that for the Federal Magistrates Court, that is, to allow the Magistrates Court of Western Australia constituted by a Family Law Magistrate to resolve expeditiously a high volume of less complex and shorter matters. The increased jurisdiction for the court will provide litigants with a simple and accessible alternative to litigation in the Family Court of Western Australia. This will also enable the Family Court of Western Australia to concentrate on hearing more complex family law and child support matters.
In the course of his oral submissions, counsel for the respondent drew our attention to the Minister’s second reading speech relating to the 2006 Amendment Act. He submitted that it did not add anything to the paragraphs from the Explanatory Memorandum which we have recited above. We will refer to that speech later in these reasons.
After counsel for the appellant provided his written outline on the jurisdictional issue, counsel for the respondent provided a supplementary outline of submissions. Paragraphs 6 to 18 of the submissions are set out below: (our emphasis added):
Purpose of Legislation
6.The purpose of the legislation was to equip the Magistrates Court of Western Australia constituted by a Family Law Magistrate with substantially the same jurisdiction and appeal structure as the Federal Magistrates Court.
7.The Federal Magistrates Court has, since its establishment, been a court entirely separate from the Family Court, using its own rules and forms.
8.The wording of Section 27 of the Jurisdiction of Courts (Family Law) Act 2006 is clear in that it only refers to proceedings instituted in the Magistrates Court.
9.The intention of Parliament was to provide an avenue to litigants to resolve less complex cases by opting to institute proceedings in the Magistrates Court as opposed to the Family Court of Western Australia.
10.The Appellant in his submissions dated 12 October 2009 intimates in paragraph 7 that item 27 may probably involve a drafting error, referring to the fact the proceedings have never been instituted in the Magistrates Court.
11.The fact that such proceedings have never been instituted in the Magistrates Court is irrelevant, as it was Parliament’s intention that there be an additional Court to deal with less complex and shorter matters.
Interpretation of Item 27 in particular
12.The Explanatory Memorandum confirms the ordinary meaning of Item 27.
13.Item 27 is neither ambiguous, nor obscure, nor does the ordinary meaning lead to a result with it [sic] manifestly absurd or unreasonable.
Effect of legislation as enacted
14.The effect of Item 27 is that the amendments apply only to those cases which were instituted in the Magistrates Act [sic]. This does not affect the validity of the amendments, they simply do not apply to matters transferred to the Magistrates Court by the Family Court of Western Australia.
15.In Western Australia the circumstance where an [sic] Commonwealth Act may still have application in the form prior to it being amended is well known.
16.As Western Australia has not referred its powers relating to ex-nuptial children to the Commonwealth, whenever amendments are made to the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989, they do not apply to ex-nuptial children, until such time as Western Australia has adopted those two Acts as they stand at a given date.
17.The Appellant is therefore correct in his submissions at paragraph 7 where he states: “this item simply indicates when proceedings in the Magistrates Court are subject to particular amendments made by the 2006 Act.”
18. The current appeal is not subject to those amendments.
In the course of his oral submissions, counsel for the respondent responded to a submission made on behalf of the appellant that item 27 should be treated as “temporal and not substantive”. Counsel for the respondent submitted that if item 27 was intended to be “temporal” only, it would have ended at the word “Part” and the reference to the Magistrates Court of Western Australia would have been excluded. It was submitted that by including the additional words “in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia”, Parliament intended that item 27 would deal with “forum issues” as well as “temporal” matters.

The appellant’s submissions

We have noted that the respondent’s written supplementary submissions were provided in response to the (admirably brief) outline of argument of the appellant.
The primary and simple proposition of Queens Counsel for the appellant was that the Family Law Act 1975 is a code and “must be read as a single document and (subject to the Constitution) as meaning what it says”. Counsel further submitted that the terms of s 94AAA(1A)(a) are quite clear and the fact that the proceedings had been transferred to the Magistrates Court after having been instituted in the Family Court of Western Australia was irrelevant. It was submitted that item 27 does not limit or affect the prima facie meaning of s 94AAA(1A)(a).
The appellant’s written submissions went on:
Whether or not the expression “proceedings” instituted… in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia (italics added) in item 27 involves a drafting error (and as proceedings had never been instituted in that court, it probably does), this item simply indicates when proceedings in the Magistrates Court are subject to particular amendments made by the 2006 Act. In other words, item 27 is simply formal, or temporal, and not substantive.
It was finally submitted that any drafting error in item 27 does not result in any limitation on the clear terms of s 94AAA(1A) since otherwise for all practical purposes this subsection would be “redundant”.

Discussion

Before setting out our views on the way we consider item 27 must inevitably be interpreted, it will be useful to make some observations about basic principles of statutory construction.
We commenced these reasons by tracing the way in which the unique family law system in Western Australia has evolved since 1975. It was important we did so, since as Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514:
Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.
The importance of considering context in the first instance was emphasized by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 where it was said that “context” for this purpose is to be understood as used:
in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.
Their Honours also went on to say:
[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which…is reasonably open and more closely conforms to the legislative intent.
The law relating to the interpretation and effect of statutes that make amendments to other statutes is well settled, which is not to say it is always easy to apply. The starting point is s 15 of the Interpretation Act, which provides:
15.Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof.
The High Court has said in Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463 (per Brennan CJ, Dawson and Toohey JJ) that s 15 of the Interpretation Act is declaratory of the common law and “represents the modern approach to the construction of an amended statute”.
In the same case (at 479), McHugh and Gummow JJ described this “modern approach” as proceeding on the basis that:
it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole.
Their Honours went on to say that this would be particularly so where “the change involved amendment by striking out a sub-section … and substituting other sub-sections”. This is, of course, effectively what occurred with the 2006 Amendment Act – provisions previously having application to appeals from the Magistrates Court of Western Australia were expressly made inapplicable (see s 96(1AA)) and new subsections were inserted dealing with appeals from that Court (see in particular s 94AAA(1A)).
The observations of McHugh and Gummow JJ concerning the necessity to read the revised text of an Act as a whole were qualified by the words “thereafter and as to subsequent events”. We respectfully consider that in expressing themselves in this way, their Honours were drawing attention to the well established principle that:
[t]he general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.
In considering the importance of this principle it needs to be understood that the convention (at least in Australia) is that amending Acts do not provide that the original Act is to be read as if some change were made in it, but rather provide that the original Act is physically altered as a result of the amendment. Courts in Australia have traditionally ruled that this practice does not mean that words so inserted are to be treated as if they have always been included in the principal Act (see the discussion in D C Pearce and R S Geddes in Statutory Interpretation in Australia 6^th ed, Butterworths, Australia, (2006) at [10.15]).
In this context it is important to appreciate that the presumption against retrospectivity is nothing more than that – a presumption. There is no doubt that the Commonwealth Parliament can make laws having retrospective operation: R v Kidman (1915) 20 CLR 425. Hence, in order to avoid doubt about the potential retrospective application of amendments to existing legislation, it is common practice for amending Acts to contain specific provisions dealing with the intended scope of the amendments.
This brings us to the submission advanced on behalf of the appellant that the Family Law Act 1975 is a “code” and hence must be read as a single document and as meaning what it says. It is clear Queens Counsel for the appellant was not using “code” in the strict sense of the word, namely an Act which purports to gather together the relevant statute and case law on a given topic and restates it in such a way that it becomes the complete statement of the law on that topic. Rather we understood him to be using “code” in the loose sense as meaning that the Act deals with the subjects referred to in it to the exclusion of other Acts (see D C Pearce and R S Geddes (supra) at [1.23] and [8.7]).
Accepting that Queens Counsel was using the word in its loose sense, we agree that the Family Law Act 1975 should be seen as a “code” in that, for example, it must be treated as the repository for all substantive legislative provisions governing appeals from courts exercising jurisdiction under the Act.
It must be understood, however, that there will be occasions when it will be necessary to have regard to Acts which have amended the principal Act. This is because the amending Act will frequently contain “Application” or “Transitional” provisions which do not themselves become part of the principal Act in its amended form. In those cases it is necessary to read both Acts in conjunction to see the extent to which the amendment impacts on the matter in controversy. (The only “transitional” provisions that appear in the body of the Family Law Act itself are those contained in s 9 which dealt with cases commenced under the Matrimonial Causes Act 1959.)
“Application” provisions are used when it is necessary to explain exactly how the “new” law will apply and how the “old” law will cease to apply. This may involve providing for the “old” law to continue to apply for limited purposes despite the fact that the “old” law has been repealed. “Transitional” provisions commonly modify the effect of the “new law”. Other types of “transitional” provisions:
a)modify the effect of the “old” law (as it continues to apply by virtue of an application provision);
b)override the presumption against retrospectivity;
c)ensure that an amendment does not affect the interpretation of the “old” law;
d)ensure that the repeal of an amending Act, or of amending provisions, does not effect the operation of amendments made by the amending Act or amending provisions.

Drafting manuals used by the Office of Parliamentary Counsel in preparing Commonwealth legislation are publicly available ( and the policies prescribed in those manuals are reflected in all legislation of the Commonwealth Parliament. By way of one very recent example, the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) contains both “Application” and “Transitional” provisions concerning the operation of amendments to provisions of the Family Law Act 1975 dealing with financial agreements. These “Application” and “Transitional” provisions have not themselves become part of the text of the principal Act but are nevertheless of fundamental importance in dealing with issues concerning financial agreements.
Whilst we accordingly accept that it is important to have regard to the terms of an “Application” provision, such as item 27, we would have thought it patently obvious that if Parliament had intended to have one system for appeals for proceedings instituted in the Magistrates Court of Western Australia and an entirely different system for proceedings transferred to that Court, it would have made that plain by amendment to the text of the principal Act. It could not seriously be contemplated that it would be left to the reader to navigate the obscure trail suggested by counsel for the respondent in order to discover there is a special appeal process for one category of cases.
Counsel for the respondent was quite right to draw attention to the fact that in a number of places in the Family Law Act 1975 a distinction is drawn between proceedings “instituted” in a court and proceedings “transferred” to a court. That being the case, we consider it highly significant that s 96(1AA) provides that s 96 of the Act “does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia”. Had Parliament’s intention been as suggested by counsel for the respondent it would have been expected that s 96(1AA) would refer only to decrees made in proceedings instituted in that Court, rather than all decrees.
In the course of his argument concerning the meaning to be given to item 27, counsel for the respondent constantly stressed and juxtaposed the words “instituted” and “in”, notwithstanding that those words are separated by an entire phrase, namely “after the commencement of this Part”. When it is appreciated that an “Application” provision serves what was described in argument as a “temporal” purpose, any possible justification for rolling the words “instituted” and “in” together disappears. Given the accepted purpose of an “Application” provision, the stress or emphasis in item 27 should be on the phrase counsel for the respondent glossed over, namely “after the commencement of this Part”.
It was suggested from the bench in the course of the oral argument that the proper meaning of sub-item 27(2) could be appreciated by notionally inserting two commas, so that the entire provision would then read:
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.
However, once the purpose of an “Application” provision is appreciated we consider there would be no warrant even for the insertion of these commas. Commas used in this way would imply that the words enclosed were parenthetical – i.e. the information contained within them is not essential to the meaning of the sentence. This is clearly not the case since it is that phrase upon which the entire sentence hinges.
It is also not the case, as counsel for the respondent argued, that if the only purpose of item 27 was temporal, all words after “Part” could have been omitted. That argument was based on an assertion that the various items in Schedule 1 apply only to the Magistrates Court of Western Australia constituted by a Family Law Magistrate. There are, in fact, a number of amendments effected by that schedule which apply to courts other than the Magistrates Court of Western Australia – see for example items 12 and 13 which relate to jurisdictional limits in other courts of summary jurisdiction. This is so notwithstanding that Schedule 1 is entitled “Amendments relating to the Magistrates Court of Western Australia”.
It follows from what we have said that we do not accept there is any drafting error in item 27 as was tentatively suggested by Queens Counsel for the appellant. The item as drafted achieved what we consider to be its desired and clear purpose. Any other interpretation would lead to what we would consider to be the manifestly absurd outcome that appeals from the same court would be dealt with in fundamentally different ways depending entirely on whether the matter had been filed in that court or transferred to it from another Court.
Equally absurd would be the proposition that forevermore those seeking to ascertain the appellate pathway in cases transferred to the Magistrates Court of Western Australia would need to delve into an old amending Act when all of the other avenues of appeal from all other Courts exercising federal family law jurisdiction in Australia would be conveniently found in the principal Act.
We do not consider there is any necessity to look to extraneous materials to assist in understanding the true meaning of the legislation but, if we did, it would be unnecessary to look further than the first of the two paragraphs of the Explanatory Memorandum cited by counsel for the respondent. That paragraph was in the following terms (our emphasis added):
The intention of the Bill is to provide the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia with substantially the same jurisdiction and appeal structure in relation to family law and child support matters as the Federal Magistrates Court.
The appeal structure relating to the FMC does not differentiate in any way between proceedings that are instituted in the FMC and cases that are transferred to it from another Court. There is also no hint in the Explanatory Memorandum that the “old” appeal structure is to remain in place for cases that are transferred to the Magistrates Court of Western Australia.
Counsel for the respondent suggested that the Minister’s second reading speech at the time of introduction of the relevant Bill did not add anything to the Explanatory Memorandum and that it too supported his argument. We disagree.
Senator Ecketton, the Minister for Justice, commenced his remarks when introducing the Bill into the Senate by noting that the legislation:
will increase the jurisdiction of the Magistrates Court of Western Australia so that it can deal with the same matters in relation to family law and child support, and have the same appeal structure, as the Federal Magistrates Court.
The Minister recorded that the proposed amendments originated from a 2003 review of the workload and resources of the Family Court of Western Australia. The Minister went on to say:
In relation to appeals, the Review recommended that appeals should [sic] from the Perth Court of Petty Sessions, like appeals from Federal Magistrates in family law matters, go directly to the Appeal Division of the Family Court of Australia. Prior to these amendments, appeals could be brought from the Perth magistrates to the Family Court of Western Australia and from there to the Family Court. This effectively provided an extra layer of appeal in contrast to the situation elsewhere in Australia.
Under Commonwealth family law and child support legislation, appeals from decisions of federal magistrates are heard by the Full Court of the Family Court, unless the Chief Judge exercises a discretion to allow appeals to be heard by a single judge. If heard by a single judge this is an exercise of the appellate jurisdiction of the court and it is not possible to appeal from such a decision to the Full Court. Any further appeal will be to the High Court, by leave.
Appeals in these matters from the decisions of Perth Family Law Magistrates will now go straight to the Family Court of Australia, in the same way as appeals from decisions of Federal Magistrates. This acknowledges that Perth magistrates are specialists in family law matters and so there should be a more restricted right of appeal from their decisions. [our emphasis added]
The extraneous materials do not support the proposition that the intention of the 2006 amendments was to give litigants the choice of filing in the Family Court of Western Australia or the Magistrates Court of Western Australia so that the judges could “deal with matters which take more time and are more complex”. The irony in the proposition would be that if a litigant chose to file in the Family Court of Western Australia, and that Court determined it did not warrant the attention of a Judge, the matter would be transferred to the Magistrates Court of Western Australia, only then to find it later being returned to a Judge for a hearing de novo at the behest of any aggrieved litigant.
The historical background we have provided indicates that the distribution of family law work between the two Western Australian courts has been handled in a simple fashion for two decades and the process has received the imprimatur of the legislature. There is no suggestion in any of the material to which we have been referred that the Commonwealth Parliament was in any way dissatisfied with the way in which the Western Australian courts were distributing the workload. In any event, the Commonwealth Parliament takes State courts as it finds them when conferring federal jurisdiction (Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51).
The purpose of the 2006 Amendment Act was clearly to support the existing system by increasing the jurisdictional limits of the Magistrates Court of Western Australia and providing an appeal structure which reflects the expertise of the specialist Family Law Magistrates. Hence, in the case of all proceedings instituted after the commencement of Part 1 of Schedule 1 of that Act, the right of appeal under the Family Law Act 1975 from all decrees of Family Law Magistrates is to the Family Court of Australia constituted by a Full Court, save where the Chief Justice otherwise directs.
We accordingly had power to allow the appeal.

Costs

We granted costs certificates for the appeal and the rehearing. Notwithstanding the lack of merit in the argument concerning the proper avenue of appeal, there was substance in the appeal itself. This was very properly conceded by the respondent. The learned Magistrate had made an error of law and our discretion to grant certificates was therefore enlivened, as we had determined that neither party should be ordered to pay the costs of the other.

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 12 March 2010