Family Law Regulations (Amendment) 1992 No. 376
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 376
Issued by the Authority of the Minister for Justice
Family Law Act 1975
Family Law Regulations (Amendment)
Subsection 125(1) of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Subsection 41(2) of the Act provides that where a State has created a Family Court the Governor-General may make a Proclamation that section 41 applies to that Court. On 4 November 1991 the Governor-General made a Proclamation under subsection 41(2) declaring that section 41 of the Family Law Act applied to the Family Court of Western Australia.
Where a Proclamation is made under subsection 41(2), subsection 41(3) provides that the Act has effect in relation to proceedings instituted in the State Family Court as if those proceedings had been instituted in the Supreme Court of the State and invests the State Family Court with federal jurisdiction as if the State Family Court were a State Supreme Court.
Regulation 7A of the Family Law Regulations provides for the Chief Justice of the Family Court of Australia to approve persons, who are suitable by reason of their training and experience, as mediators for the purposes of conducting court referred mediation under sections 19A and 19B of the Act.
It is not appropriate for the Chief Justice of the Family Court of Australia to approve persons to mediate in the Family Court of Western Australia.
The Regulations provide for the Chief Judge of the Family Court of Western Australia to approve persons, who are suitable by reason of their training and experience, as mediators for the purposes of section 19A and 19B of the Family Law Act.
Details of the Regulations are as follows:
Regulation 1 is formal.
Regulation 2 inserts Regulation 7B-Approved mediators-Family Court of Western Australia after the present Regulation 7A.
Regulation 7B follows the wording of the current Regulation 7A but differs in that the Chief Judge of the Family Court of Western Australia may approve persons as mediators in Western Australia for the purposes of sections 19A and 19B of the Family Law Act.
Overview
The Family Law Regulations (Amendment) 1992 No. 376 were introduced to amend the Family Law Regulations of 1975 to address the need for more localised mediation approval processes within the Family Court of Western Australia. Enacted by the Governor-General under the authority granted by the Family Law Act 1975, these amendments aimed to provide greater autonomy and flexibility in the administration of family law matters within the state. The policy objective of this regulation was to ensure that the Family Court of Western Australia could effectively manage its own mediation processes by empowering the Chief Judge of the Family Court of Western Australia to approve mediators, rather than relying on the Chief Justice of the Family Court of Australia. This change was intended to streamline the judicial process and provide a more tailored approach to family law mediation in Western Australia.
Scope and Application
The Family Law Regulations (Amendment) 1992 No. 376 applies to the Family Law Act 1975 and modifies the Family Law Regulations to accommodate the federal jurisdiction of the Family Court of Western Australia. This amendment arises from the Proclamation made by the Governor-General on 4 November 1991, which declared that section 41 of the Family Law Act applies to the Family Court of Western Australia, effectively granting the Court federal jurisdiction. The regulations specifically address the approval of mediators for court-referred mediation under sections 19A and 19B of the Act. Regulation 7B replaces the previous provision where the Chief Justice of the Family Court of Australia approved mediators, now assigning this responsibility to the Chief Judge of the Family Court of Western Australia. This change ensures that the process of mediator approval aligns with the federal jurisdiction granted to the Family Court of Western Australia. The regulations do not extend beyond these specific amendments and do not include any stated exclusions or exemptions.
Key Provisions
The Family Law Regulations (Amendment) 1992 No. 376, issued under the authority of the Minister for Justice, amends the Family Law Regulations to allow for the approval of mediators by the Chief Judge of the Family Court of Western Australia. Specifically, Regulation 7B introduces a new provision, Regulation 7B, which mirrors the existing Regulation 7A but applies to the Family Court of Western Australia. Regulation 7A, as currently stands, allows the Chief Justice of the Family Court of Australia to approve mediators. However, this amendment recognises the distinct jurisdiction of the Family Court of Western Australia by empowering the Chief Judge of this court to approve mediators suitable by reason of their training and experience for court-referred mediation under sections 19A and 19B of the Family Law Act 1975.
These regulations impose obligations on the Chief Judge of the Family Court of Western Australia to carefully evaluate and approve only those individuals who meet the necessary criteria of training and experience. This ensures that mediators appointed are qualified and capable of handling family law mediation effectively. The regulations require the Chief Judge to make informed decisions based on the professional background and competencies of potential mediators, ensuring the integrity and efficacy of the mediation process within the Western Australian context.
Failure to comply with these regulations or the improper approval of mediators can lead to legal consequences. While the specific penalties for non-compliance are not detailed in the explanatory statement, breaches of such regulations could potentially result in disciplinary actions against the Chief Judge, or invalidation of mediation proceedings, thereby impacting the legal resolution of family disputes. Given the importance of the mediation process in resolving family law matters, adherence to these regulations is critical to maintain the credibility and effectiveness of the family justice system.