EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 104
ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL
FAMILY LAW ACT 1975
FAMILY LAW AMENDMENT REGULATIONS 2008 (No. 1)
Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the proposed Regulations is to make an amendment to the Family Law Regulations 1984 (the Principal Regulations) to change the jurisdictional limit imposed on Family Law Magistrates in property matters in Western Australia.
A Family Law Magistrate is a person who holds office as a magistrate under the Magistrates Court Act 2004 (WA) and as the Principal Registrar or Registrar of the Family Court of Western Australia concurrently.
The jurisdictional limit for property matters for Family Law Magistrates in Western Australia is currently $700,000. This limit is set by s 46 of the Act and regulation 12AC of the Principal Regulations.
The proposed Regulations would make an amendment to the Principal Regulations to increase the current jurisdictional limit to $5,000,000 to provide the Family Court of Western Australia with greater flexibility in allocating workload between its judges and magistrates.
The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The proposed increase of the jurisdictional limit to $5,000,000 was determined in consultation with the Family Court of Western Australia.
The proposed Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulations 1 through 3 and Schedule 1 would commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.
Details of the Regulations are as follows:
Regulation 1 - Name of Regulations
Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2008 (No. 1).
Regulation 2 – Commencement
Regulation 2 provides for the commencement of Regulations 1 to 3 and Schedule 1 on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 - Amendment of Family Law Regulations 1984
Regulation 3 provides that Schedule 1 amends the Principal Regulations.
Schedule 1 – Amendment
Item [1]: Regulation 12AC
This item replaces the $700,000 ceiling amount in the Principal Regulations with a new ceiling amount of $5,000,000.
Overview
The Family Law Amendment Regulations 2008 (No. 1) were enacted to address a jurisdictional limit imposed on Family Law Magistrates in property matters in Western Australia, as outlined in the Family Law Act 1975. This legislative instrument was introduced to enhance the flexibility of the Family Court of Western Australia in workload allocation between its judges and magistrates. The regulations were issued by authority of the Attorney-General and are intended to amend the Family Law Regulations 1984 by increasing the jurisdictional limit for property matters from $700,000 to $5,000,000. The amendment was determined in consultation with the Family Court of Western Australia, and the regulations were designed to be consistent with the overarching objectives of the Family Law Act 1975, facilitating more efficient case management and processing within the family law jurisdiction.
Scope and Application
The Family Law Amendment Regulations 2008 (No. 1) aim to modify the jurisdictional limit on property matters for Family Law Magistrates in Western Australia, as stipulated under the Family Law Act 1975. These regulations apply to Family Law Magistrates who concurrently serve under the Magistrates Court Act 2004 (WA) and as the Principal Registrar or Registrar of the Family Court of Western Australia. The amendment seeks to increase the jurisdictional limit from $700,000 to $5,000,000, thereby providing the Family Court of Western Australia with enhanced flexibility in workload allocation between its judges and magistrates. This change is set to take effect on the day following the registration of the Regulations on the Federal Register of Legislative Instruments. No specific conditions or exclusions are outlined in the Act that need to be satisfied before these proposed Regulations can be exercised, other than ensuring they do not conflict with the provisions of the Family Law Act 1975.
Key Provisions
The Family Law Amendment Regulations 2008 (No. 1) focus on altering the jurisdictional limit for property matters handled by Family Law Magistrates in Western Australia. Regulation 3, in particular, amends regulation 12AC of the Family Law Regulations 1984 (Principal Regulations) to increase the jurisdictional limit from $700,000 to $5,000,000. This change is intended to provide the Family Court of Western Australia with greater flexibility in distributing workload between its judges and magistrates. These Regulations are consistent with and operate under the authority granted by subsection 125(1) of the Family Law Act 1975, which allows for the making of regulations necessary or convenient for carrying out the Act.
The obligations imposed by these Regulations require Family Law Magistrates in Western Australia to adhere to the new jurisdictional limit for property matters. Specifically, Family Law Magistrates can now handle property matters with a value up to $5,000,000, as opposed to the previous limit of $700,000. This change necessitates that the Family Law Magistrates ensure that any property matters they undertake do not exceed the new jurisdictional threshold. Failure to adhere to this limit could result in the case being beyond the magistrate’s authority, potentially leading to procedural issues or the need for reassignment of the case to a judge.
The proposed Regulations do not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of the new jurisdictional limit. However, any failure to comply with the jurisdictional requirements could result in procedural complications and potential reassignment of cases. This reassignment might have implications for the efficiency and workload distribution within the Family Court of Western Australia, but it does not introduce new criminal or civil penalties. Instead, the primary consequence of non-compliance would be the administrative inconvenience of having to transfer cases that exceed the jurisdictional limit to a judge. This ensures that the integrity of the court’s proceedings is maintained while allowing for an appropriate distribution of workload.