EXPLANATORY STATEMENT
Subject - Family Law Regulations (Amendment)
(Statutory Rules 1988 No. 165)
The purpose of these regulations is to prescribe a magistrates court in Western Australia so that it may entertain undefended applications for dissolution of marriage.
Previously, no court of summary jurisdiction was able to hear divorce applications. Subsection 39(6) of the Family Law Act 1975 provides that each court of summary jurisdiction is invested with federal jurisdiction with respect to “matrimonial causes, not being proceedings for principal relief” (and with respect to certain other matters which are not here relevant).
Subsection 4(1) of that Act contains the following definitions:
• ”matrimonial cause” means -
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of -
(i) dissolution of marriage; or
(ii) nullity of marriage;
• ”proceedings for principal relief” means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of “matrimonial cause” in this subsection.
The effect of subsection 39(6) is therefore that courts of summary jurisdiction do not have jurisdiction to entertain applications for dissolution of marriage.
Section 23 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988, which came into operation on 1 July 1988, amended subsection 39(6) to replace the words “, not being proceedings for principal relief,” with the words “(other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of ‘matrimonial cause’ in subsection 4(1))”. This had the effect of conferring jurisdiction on courts of summary jurisdiction in relation to applications for dissolution.
Section 24 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act, which also came into operation on 1 July 1988, inserted a new section 44A into the Family Law Act to state that regulations may provide that proceedings for a decree of dissolution of marriage may not be instituted in, or transferred to, a court of summary jurisdiction other than a prescribed court.
At this stage the only court of summary jurisdiction which federal and State authorities have agreed is suitable to be prescribed under section 44A is a court constituted by a stipendiary magistrate who is the Registrar or a Deputy Registrar of the Family Court of Western Australia.
It is expected that, in due course, other courts of summary jurisdiction will be prescribed under section 44A.
Notwithstanding the fact that section 24 had not yet come into operation, there was power to make the proposed regulations. Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act that is not to come into operation immediately upon its enactment is expressed to amend another Act in such a manner that the other Act, as amended, will confer power to make an instrument of a legislative character (including regulations), then, unless the contrary intention
appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the instrument into effect, before the Act concerned comes into operation as if it had come into operation.
The regulations commenced when section 24 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act came into operation.
Overview
The Family Law Regulations (Amendment) (Statutory Rules 1988 No. 165) were enacted to address the gap in jurisdiction for undefended applications for dissolution of marriage in courts of summary jurisdiction, particularly in Western Australia. Previously, no court of summary jurisdiction had the authority to hear such divorce applications. This was rectified by amending the Family Law Act 1975 to allow these courts to entertain undefended dissolution applications. The regulations were made under the authority of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988, which expanded the jurisdiction of courts of summary jurisdiction and enabled the making of regulations to prescribe specific courts for such applications. The policy objective was to streamline the process and make it more accessible for couples seeking an undefended dissolution of marriage. The regulations were enacted by the Parliament of Australia.
Scope and Application
The Family Law Regulations (Amendment) (Statutory Rules 1988 No. 165) are designed to extend the jurisdiction of a specific magistrates court in Western Australia to handle undefended applications for the dissolution of marriage, aligning with the changes introduced by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988. These regulations apply to the Magistrates Court of Western Australia, empowering it to entertain such applications where previously it lacked the jurisdiction to do so. This amendment specifically targets the procedural aspect of divorce by enabling courts of summary jurisdiction to handle dissolution proceedings, except for those involving nullity of marriage, as defined under the Family Law Act 1975. The geographic and jurisdictional reach of these regulations is limited to Western Australia, where the prescribed magistrates court is located. The regulations do not specify any exclusions or exemptions, but they operate under the broader framework set by the Family Law Act and the Acts Interpretation Act 1901, which allows for the making of preparatory regulations before the amending Act takes effect.
Key Provisions
The Family Law Regulations (Amendment) (Statutory Rules 1988 No. 165) primarily serve to specify a magistrates court in Western Australia that is authorised to handle undefended applications for the dissolution of marriage (section 4). Previously, no court of summary jurisdiction was permitted to entertain such applications. However, the amendment introduced by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 has altered this, enabling these courts to handle dissolution of marriage cases, provided they are prescribed under section 44A of the Family Law Act 1975. Section 4 of the regulations designates a specific court in Western Australia, constituted by a stipendiary magistrate who holds the position of Registrar or Deputy Registrar of the Family Court of Western Australia.
The Act imposes certain obligations on the designated magistrates court. It mandates that the court must adhere to the procedural requirements set forth in the Family Law Act 1975 when handling undefended applications for dissolution of marriage. This includes ensuring that the applications are complete and that the necessary forms and documentation are submitted appropriately. The court must also ensure that the parties involved are properly informed of their rights and obligations under the Act. Furthermore, the court must make decisions in accordance with the law, ensuring that the dissolution of marriage is granted only if the relevant criteria are met, such as the irretrievable breakdown of the marriage.
Failure to comply with the provisions of the Family Law Act 1975 or the regulations may result in various consequences. For individuals who do not adhere to the requirements, there may be civil penalties, such as fines or orders for restitution. Additionally, any breaches of the Act or regulations by the court or its officers could lead to disciplinary action, including potential criminal charges if the breach is severe. The maximum penalties for offences under the Family Law Act 1975 can vary significantly depending on the nature of the offence. For example, penalties for providing false or misleading information in proceedings can result in fines of up to $55,000 for individuals and $275,000 for bodies corporate, as well as potential imprisonment terms. These provisions underscore the importance of compliance and the potential legal repercussions for non-compliance.