EXPLANATORY STATEMENT
Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012
Proclamation
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 validates certain orders of the Family Court of Australia and the Federal Magistrates Court made in the absence of Proclamations under subsection 40(2) of the Family Law Act 1975. Schedule 2 makes related amendments to the Family Law Act, including the substitution of subsection 40(1) and the repeal of subsection 40(2).
Clause 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act provides that Schedule 2 is to commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, then the provisions commence on the day after the end of that period. These commencement provisions enable regulations to be made to maintain the status quo of the exercise of jurisdiction by the Family Court of Australia by restricting this jurisdiction in certain states and territories from time to time.
Regulations restricting the jurisdiction of the Family Court of Australia have been made and enacted in conjunction with this Proclamation.
The Proclamation fixes 21 April 2012 as the date on which Schedule 2 commences.
The Proclamation has been drafted by the Office of Legislative Drafting and Publishing. No consultation was required given the administrative nature of this instrument.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003. However, the Proclamation is exempt from disallowance and sunsetting provisions under the Legislative Instruments Act 2003.
Authority: Subsection 2(1)of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment (Validation of Certain Orders and Other Measures) Proclamation 2012
This Proclamation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Proclamation
The Proclamation sets 21 April 2012 as the date on which Schedule 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 commences.
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 validates certain orders of the Family Court of Australia and the Federal Magistrates Court made in the absence of Proclamations under subsection 40(2) of the Family Law Act 1975.
Schedule 2 amends the Family Law Act to remove the requirement for a Proclamation to be made in respect of fixing a date on and after which jurisdiction of the Family Court of Australia under the Family Law Act could be exercised in each of the States and Territories. The effect of Schedule 2 provides the Family Court of Australia with a default ability to exercise jurisdiction validly conferred on it. This differs from the previous situation which required something additional to happen, in the form of a Proclamation, before the court was able to validly exercise jurisdiction.
Human rights implications
The Proclamation engages but does not limit the right to a fair trial. The right to a fair trial is protected in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Article 14 is aimed at ensuring the proper administration of justice, which includes the right to equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.
The right to a fair trial will not be prejudiced by the Proclamation. The Proclamation commences a Schedule of an Act which clarifies the jurisdiction of the Family Court of Australia. This aligns with the aims of Article 14.
Conclusion
The Proclamation is compatible with human rights.
Overview
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 was enacted to address a specific issue within the Family Law Act 1975 concerning the jurisdiction of the Family Court of Australia and the Federal Magistrates Court. This legislation was introduced to ensure that certain orders made by these courts are validated, particularly those made without the necessary Proclamations under subsection 40(2) of the Family Law Act 1975. The Act was passed by the Parliament of Australia and aims to streamline the judicial process by removing the necessity for additional Proclamations to confer jurisdiction on the Family Court. The Family Law Amendment (Validation of Certain Orders and Other Measures) Proclamation 2012 complements this Act by setting a commencement date for its Schedule, thereby ensuring that the Family Court can validly exercise its jurisdiction without the need for further Proclamations.
Scope and Application
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 applies to orders made by the Family Court of Australia and the Federal Magistrates Court in relation to family law matters. This Act serves to validate orders that were made in the absence of certain Proclamations under the Family Law Act 1975, specifically addressing the procedural requirements for exercising jurisdiction. The Act ensures that these orders remain legally enforceable, thereby maintaining the integrity of past judicial decisions. The geographic and jurisdictional reach of the Act is national, as it pertains to the Family Court of Australia, which operates across the Commonwealth of Australia. The Act does not specify exclusions or exemptions but focuses on clarifying jurisdictional procedures through its amendments to the Family Law Act. The Act may extend or restrict its application through subordinate instruments, such as regulations, which in this instance have been made to maintain the status quo of the court's jurisdiction in certain states and territories until further notice.
Key Provisions
The main operative sections of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) are found in Schedule 2, which commences on 21 April 2012, as proclaimed (s 2). This schedule makes significant amendments to the Family Law Act 1975 (Cth), including the substitution of subsection 40(1) and the repeal of subsection 40(2) (Schedule 2, cl 1). These changes remove the necessity for a Proclamation to be made to fix a date for the exercise of jurisdiction by the Family Court of Australia in each state and territory, thereby granting the Family Court a default ability to exercise jurisdiction validly conferred on it (Schedule 2, cl 1).
The Act imposes several obligations on parties and entities it governs. It mandates the validation of certain orders of the Family Court of Australia and the Federal Magistrates Court made in the absence of Proclamations under subsection 40(2) of the Family Law Act 1975 (s 1). Furthermore, it requires the Family Court to exercise its jurisdiction in alignment with the amended provisions of the Family Law Act 1975, ensuring that its decisions and orders are valid and enforceable (Schedule 2, cl 1). The Act also necessitates that any regulations restricting the jurisdiction of the Family Court of Australia be made and enacted in conjunction with this Proclamation to maintain the status quo until the commencement date (s 2).
Breach of the provisions outlined in the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 may result in various civil or criminal consequences. Although specific offences and penalties are not detailed within the Act, non-compliance with the validated orders or failure to adhere to the amended jurisdictional provisions could lead to legal challenges and potential sanctions. For instance, parties aggrieved by orders not validated under this Act could contest the validity of the orders in higher courts, leading to protracted legal battles. Moreover, any failure to respect the validated orders could result in enforcement actions, fines, or other penalties as prescribed under the Family Law Act 1975 or other applicable legislation.