EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 129
ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL
FEDERAL MAGISTRATES ACT 1999
FEDERAL MAGISTRATES AMENDMENT REGULATIONS 2006 (No. 2)
Subsection 120(1) of the Federal Magistrates Act 1999 (the Principal Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
Subsection 10(1) of the Principal Act provides that the Federal Magistrates Court (the FMC) has such original jurisdiction as is vested in it by laws made by Parliament by express provision, or by the operation of section 15C of the Acts Interpretation Act 1901.
Subsections 39(5AA) and (5A) of the Family Law Act 1975 (the FLA) confer jurisdiction on the FMC in respect of certain matters under the FLA, and therefore expressly provide the FMC with original jurisdiction in respect of those family law matters.
The purpose of the Regulations is to amend the Federal Magistrates Regulations 2000 to reflect changes in terminology within the divorce and child‑related provisions of the FLA as amended by:
- the Family Law Amendment Act 2005 (2005 Amendment Act), and
- the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Shared Parenting Responsibility Act).
The Regulations commence on 1 July 2006, coinciding with the commencement of Schedules 1 and 2 to the Shared Parenting Responsibility Act.
Details of the Regulations are as follows:
Regulation 1 - Name of Regulations
Regulation 1 provides that the name of the Regulations is the Federal Magistrates Amendment Regulations 2006 (No. 2)
Regulation 2 – Commencement
Regulation 2 provides for the Regulations to commence on 1 July 2006.
Regulation 3 – Amendment of Federal Magistrates Regulations 2000
Regulation 3 provides that Schedule 1 amends the Federal Magistrates Regulations 2000 (the Principal Regulations).
Schedule 1 – Amendments
Items [1], [2] and [4] - Paragraph 7(2)(a), subparagraph 7(2)(d)(i) and Schedule 1, item 2A, column 2
Items 1, 2 and 4 amend the Principal Regulations to reflect changes in terminology within the divorce provisions of the FLA.
The Family Law Amendment Act 2005 amended the FLA to modernise the terminology used in relation to divorce and principal relief. The Regulations replace references to terms such as 'decree of dissolution of a marriage' by 'divorce order' to reflect this modern terminology.
Item [3] – Subparagraphs 7(2)(d)(v) and (vi)
Item 3 amends subparagraphs 7(2)(d)(v) and (vi) of the Principal Regulations to include references to a ‘residence order’ and ‘an order that a child lives with a person’.
The amendments ensure that the provisions reflect the changes in the child‑related terminology of provisions of the FLA made by Schedules 1 and 2 of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
Consultation on the content of the Regulations was undertaken under section 17 of the Legislative Instruments Act 2003 with the Family Court of Australia, the Family Court of Western Australia, the Federal Magistrates Court of Australia, the Department of Justice in each State and Territory and the Department responsible for child welfare in each State and Territory. The consultation involved exchange of correspondence and discussions.
Overview
The Federal Magistrates Amendment Regulations 2006 (No. 2) were enacted to amend the Federal Magistrates Regulations 2000 in light of changes in terminology within the divorce and child-related provisions of the Family Law Act 1975, as amended by the Family Law Amendment Act 2005 and the Family Law Amendment (Shared Parental Responsibility) Act 2006. The Federal Magistrates Amendment Regulations 2006 (No. 2) were issued under the authority of the Attorney-General and commenced on 1 July 2006. The policy objective of these Regulations is to ensure that the terminology used in the Federal Magistrates Regulations 2000 is consistent with the modernised terminology in the Family Law Act 1975. This was achieved through consultation with relevant courts, departments, and child welfare agencies.
Scope and Application
The Federal Magistrates Amendment Regulations 2006 (No. 2) apply to the Federal Magistrates Court (FMC) as established under the Federal Magistrates Act 1999 and its jurisdiction under the Family Law Act 1975. These Regulations amend the Federal Magistrates Regulations 2000 to align with the terminology updates in divorce and child-related provisions introduced by the Family Law Amendment Act 2005 and the Family Law Amendment (Shared Parental Responsibility) Act 2006. They ensure the FMC's processes and documentation reflect contemporary language, such as replacing 'decree of dissolution of a marriage' with 'divorce order' and updating child-related terms. The Regulations, which came into effect on 1 July 2006, are applicable across Australia, as the FMC operates under federal jurisdiction. While the Regulations primarily address the internal terminology of the FMC, they do not alter the substantive jurisdiction or procedural rules of the court. Any broader application or interpretation of these amendments is subject to the overarching legislation and any subordinate instruments issued under it.
Key Provisions
The Federal Magistrates Amendment Regulations 2006 (No. 2) (the Regulations) amend the Federal Magistrates Regulations 2000 to align with recent changes in family law terminology, particularly as introduced by the Family Law Amendment Act 2005 and the Family Law Amendment (Shared Parental Responsibility) Act 2006. Regulation 2 specifies that these Regulations commence on 1 July 2006, the same date as the commencement of Schedules 1 and 2 to the Shared Parenting Responsibility Act. Regulation 3 makes the necessary amendments to the Federal Magistrates Regulations 2000 to reflect these legislative changes.
The Regulations impose specific obligations on the Federal Magistrates Court and other relevant parties. Under Regulation 3, the amended Federal Magistrates Regulations 2000 now use modernised terminology, such as replacing "decree of dissolution of a marriage" with "divorce order," to ensure consistency with the Family Law Act 1975 as amended. Additionally, subparagraphs 7(2)(d)(v) and (vi) of the Principal Regulations are amended to include references to a "residence order" and "an order that a child lives with a person," ensuring that the terminology used aligns with the current legislative framework.
The Regulations do not explicitly outline specific offences, penalties, or consequences for non-compliance within their text. However, any failure to adhere to the updated terminology and provisions as stipulated by these Regulations could potentially lead to procedural errors or misapplications in court decisions. Such errors might be subject to review or appeal, and could result in delays, additional costs, or other administrative consequences for the parties involved. The precise consequences of non-compliance would depend on the specific circumstances and the interpretation by the Federal Magistrates Court.