FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) ACT 2006 (NO. 46, 2006) - SCHEDULE 10 Orders of non-judicial officers of State courts of summary jurisdiction
FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) ACT 2006 (NO. 46, 2006) - SCHEDULE 10
Orders of non-judicial officers of State courts of summary jurisdiction
1 At the end of subsection 39(6)
Add:
Note: Under section 39A of the Judiciary Act 1903 , the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.
2 At the end of subsection 69J(1)
Add:
Note: Under section 39A of the Judiciary Act 1903 , the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.
3 After Part XIVA
Insert:
Part XIVB — Orders of non‑judicial officers of State courts of summary jurisdiction
(1) In this Part:
"federal family jurisdiction" means jurisdiction in relation to matters arising under this Act.
"ineffective order" has the meaning given by section 114MH.
"liability" includes a duty or obligation.
"non-judicial officer" of a court of summary jurisdiction of a State means an officer of the court who is not a magistrate, or arbitrator, of the kind referred to in paragraph 39(2)(d) of the Judiciary Act 1903 .
"proceedings" includes an initiating application.
"proceedings for the order" in relation to an ineffective order means the proceedings in or in relation to which the order was purportedly made.
"right" includes an interest or status.
(2) A reference in this Part to an ineffective order of a court of summary jurisdiction is a reference to an ineffective order that a non‑judicial officer of that court purported to make.
114MH Meaning of ineffective order
(1) A reference in this Part to an ineffective order is a reference to a purported order described in subsection (2). This subsection has effect subject to subsection (3) as it affects the meaning of a reference to an ineffective order in the context of a particular case.
(2) An order that a non‑judicial officer of a court of summary jurisdiction of a State has purported to make is an ineffective order if:
(a) the officer purported to make the order before the commencement of this Part; and
(b) the order was made in the exercise, or purported exercise, of the court’s federal family jurisdiction.
(3) If a court, or a non‑judicial officer of a court of summary jurisdiction of a State, has purported to affirm, vary, revoke, set aside, reverse, revive or suspend an ineffective order, a reference in this Part to the ineffective order is a reference to the order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.
114MI Rights and liabilities declared in certain cases
The rights and liabilities of all persons are, by force of this section, declared to be, and always to have been, the same as if each ineffective order of a court of summary jurisdiction had been an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.
114MJ Effect of declared rights and liabilities
(1) A right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction:
(a) is exercisable or enforceable; and
(b) is to be regarded as always having been exercisable or enforceable;
as if it were a right or liability conferred, imposed or affected by an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.
(2) The rights and liabilities conferred, imposed or affected by section 114MI include (but are not limited to) the right of a person who was a party to the proceeding or purported proceeding in which the ineffective order was made to appeal against that order.
(3) In this section:
"enforceable" includes able to be dealt with by proceedings under:
(a) Division 13A of Part VII; or
(b) Division 2 of Part XIIIA;
relating to a contravention of an order.
114MK Effect of things done or omitted to be done under or in relation to rights and liabilities
(1) Any act or thing done or omitted to be done before or after the commencement of this Part under or in relation to a right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction:
(a) has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and
(b) is to be regarded as always having had the same effect, and given rise to the same consequences, for the purposes of any written or other law;
as if it were done or omitted to be done to give effect to, or under the authority of, or in reliance on, an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.
(2) Subject to subsection (3), for the purposes of an enforcement law (see subsection (4)), any act or thing done or omitted to be done before or after the commencement of this Part:
(a) gives rise to the same consequences; and
(b) is to be regarded as always having given rise to the same consequences;
as if each ineffective order of a court of summary jurisdiction were an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.
(3) If, before the commencement of this Part, a court purported to convict a person of an offence against an enforcement law on the basis that an ineffective order was a valid order, nothing in this section is to be taken to validate or confirm that conviction.
(4) In this section:
"enforcement law" means a provision of a law of the Commonwealth, other than a law relating to contempt of court, that sets out a consequence for a person if the person:
(a) contravenes; or
(b) acts in a specified way while there is in force;
an order, or a particular kind of order, made by a court exercising federal family jurisdiction (whether or not the provision also applies to other orders of courts).
114ML Powers of courts in relation to declared rights and liabilities
(1) A court may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction as if it were a right or liability conferred, imposed or affected by an order made by that court of summary jurisdiction, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.
(2) In addition to its powers under subsection (1), a court (the review court ) also has power to make an order achieving any other result that could have been achieved if:
(a) the ineffective order had been an order made by a court of summary jurisdiction, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order; and
(b) the review court had been considering whether:
(i) to vary, revoke, set aside, revive or suspend that order; or
(ii) to extend the time for the doing of anything in relation to the proceedings for the order; or
(iii) to grant a stay of the proceedings for the order.
114MM Proceedings for contempt
If (whether before, at or after the commencement of this Part) a person has:
(a) interfered with a right conferred or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction; or
(b) failed to satisfy or comply with a liability imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction;
the interference or failure is, and is taken always to have been, a matter that can be dealt with in the same manner as if the interference or failure had been in relation to a right conferred or affected, or a liability imposed or affected, by a valid judgment of that court.
The court record, or a copy of the court record, of an ineffective order may be adduced in evidence to show the existence, nature and extent of each right or liability conferred, imposed or affected by section 114MI.
114MO Part does not apply to certain orders
Nothing in this Part applies to an order declared to be invalid by a court before the commencement of this Part.
(1) Subject to subsection (3):
(a) jurisdiction is conferred on the Family Court and the Federal Magistrates Court; and
(b) the Family Court of a State is invested with federal jurisdiction;
with respect to matters arising under this Part.
(2) Subject to subsection (3), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Part.
(3) A court has jurisdiction in respect of a matter arising under this Part in relation to an ineffective order that relates to a matter arising under this Act (the initial matter ) only if the court has jurisdiction in respect of the initial matter. The court’s jurisdiction under this Part is subject to the same conditions and limitations as would apply to it in dealing with the initial matter.
Minister’s second reading speech made in—
House of Representatives on 8 December 2005
Senate on 27 March 2006
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