Family Court of Western Australia (Orders of Registrars) Act 1997

Ineffective order is the central concept. It means either a purported order made by a Registrar (before the commencement of the corresponding Western Australian Act) that was a judicial determination not reviewable otherwise than on appeal (s 4(2)), or provisions of a parenting plan that a Registrar purported to register under section 63E of the Family Law Act 1975 before that commencement (s 4(3)). The phrase “judicial determination that was not reviewable (otherwise than on appeal)” targets the heart of the jurisdictional defect: a Registrar could lawfully perform administrative acts and certain delegated functions, but could not make a final, binding judicial decision that could only be challenged by appeal, not by review within the court. The Act’s definition of Registrar is fixed by reference to the meaning under the Family Court Act 1975 of Western Australia as in force immediately before the commencement of the corresponding Western Australian Act (s 3). This locks in a static definition to avoid changes in that State’s law affecting the scope of the Commonwealth Act. Federal family jurisdiction is defined as jurisdiction under the Family Law Act 1975, the Child Support (Registration and Collection) Act 1988, or the Child Support (Assessment) Act 1989 (s 3). The concept of proceedings for the order is defined differently for the two types of ineffective order (s 3). For a purported order under s 4(2), it is the proceedings in or in relation to which the order was purportedly made. For a parenting plan under s 4(3), it is the proceedings that would have been constituted by the application to register the plan if it had instead been an application for an order of the relevant kind under the Family Law Act 1975, with the parties to the plan as parties to that application. This difference matters because ss 5, 6 and 9 link the deemed order to the proceedings for the order, which affect the scope of the fiction. The Act also defines registration decision as the Registrar’s decision to register the parenting plan (s 3). Liability includes a duty or obligation, and right includes an interest or status (s 3). These broad definitions ensure that the declaration under s 5 captures all legal consequences that would flow from a valid order, not just pecuniary obligations. Section 4(4) clarifies that where a court or Registrar has purported to vary, revoke, set aside, revive or suspend an ineffective order, the reference in the Act is to the order in its modified form from time to time, subject to an exception in s 4(5) that applies the transitional rules of Schedule 2 to the Family Law Reform Act 1995 where those rules would have applied if the order had been valid.

The Act directly affects any person who was a party to proceedings in the Family Court of Western Australia in which a Registrar made an order that fell within the definition of ineffective order, or any person who was a party to a parenting plan registered by a Registrar that would have taken effect as an order if registered by the court. This includes spouses, former spouses, de facto partners, children, parents, and other family members whose rights, duties or status were purportedly affected by the order. It also affects third parties such as child support payees and payers where the order concerned child support. The Act binds all persons under s 5(1) - “rights and liabilities of all persons” - meaning it operates regardless of whether a person was aware of the jurisdictional defect. Enforcement agencies, including the Australian Federal Police, state police, and the Child Support Registrar, are affected because s 7(2) provides that for the purposes of an enforcement law, an act or omission gives rise to the same consequences as if the order were valid. This means a person who was subject to an enforcement action (such as a warrant or a suspension of a driver licence) for failing to comply with a Registrar’s order can rely on the Act to confirm the lawfulness of that enforcement, except in the case of convictions (see s 7(3)). Courts are affected: the Act confers jurisdiction on the Federal Circuit and Family Court of Australia (Division 1), the Supreme Court of the Northern Territory, the Family Court of Western Australia, and courts of summary jurisdiction to deal with matters arising under the Act (s 12). However, a court only has jurisdiction if it would have had jurisdiction in an equivalent matter under the Family Law Act 1975 or the Child Support Acts (s 12(3)). This condition limits the pool of courts that can hear applications under s 9 to vary or set aside the deemed rights. Legal practitioners advising clients about past orders made by Registrars must check whether the order is caught by the Act, whether it is excluded by s 11 (if the Full Court declared it invalid before the WA Act commenced), and whether a replacement order under s 8 has cut off the retrospective validation.

The core duty or right is the deeming provision in s 5(1): “The rights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, the same as if each ineffective order had been an order made by the Family Court of Western Australia in the exercise of its federal family jurisdiction in or in relation to the proceedings for the order.” This is a statutory fiction that operates retrospectively. The duty of a person who was subject to an ineffective order is to comply with the terms of the order as if it were valid, from the time the order was purportedly made. The correlative right of the person entitled to benefit from the order is to enforce it. Section 6 reinforces that such rights and liabilities are exercisable or enforceable as if they were created by a valid court order, and that they always have been. For parenting plans, s 5(2) and s 6(2) provide that the deeming effect is subject to the same conditions and limitations as apply under the Family Law Act 1975 to provisions of registered parenting plans having effect as orders. Those conditions are found in sections 63F and 63G of the Family Law Act 1975, which specify the duration and effect of parenting plans and the circumstances in which they can be varied by later orders. A person’s right to enforce compliance is also reinforced by s 7(1): any act or thing done or omitted to be done under or in relation to the deemed right or liability has the same effect for the purposes of any written or other law as if it were done under a valid court order. Section 7(2) extends this to enforcement laws: for the purpose of a law that sets out consequences for contravening a court order (other than contempt of court), the order is treated as valid. This means that if a person was prosecuted for an offence for failing to comply with a Registrar’s order, the prosecution can rely on the Act to prove the order was valid, except that s 7(3) prevents the Act from validating or confirming a conviction entered before commencement that was based on the assumption the order was valid. That subsection leaves the status of such prior convictions uncertain - they are not validated, but nor are they invalidated. A court can vary, revoke, set aside, revive or suspend the deemed rights and liabilities under s 9(1) as if they were rights under a valid order. Additionally, s 9(2) gives a court power to make any other order that could have been achieved if the ineffective order had been valid and the court had been considering whether to vary it. This is a capacious grant: it allows a court to remake the order as it could have been made originally, including substituting different terms.

The Act does not create new penalties. Its enforcement effect is achieved through s 7. Subsection 7(2) provides that for the purposes of an enforcement law, any act or omission “gives rise to the same consequences, and is to be regarded as always having given rise to the same consequences, as if each ineffective order were an order made by the Family Court of Western Australia.” An enforcement law is defined in s 7(4) as a provision of a Commonwealth law, other than a law relating to contempt of court, that sets out a consequence for a person if the person contravenes, or 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). This definition catches offence provisions in the Family Law Act 1975 (such as s 70NAC regarding contravention of parenting orders) and possibly provisions in the Child Support (Registration and Collection) Act 1988 if they penalise non-compliance. The exclusion of contempt of court is significant: a person who disobeyed a Registrar’s order cannot be proceeded against for contempt on the strength of this Act alone - the Act does not retroactively treat the order as a court order for contempt purposes. Section 7(3) is a saving provision: if a court purported to convict a person of an offence against an enforcement law before commencement, on the basis that the Registrar’s order was valid, nothing in s 7 validates or confirms that conviction. This leaves the conviction in legal limbo - it was based on an order that was actually void, but the Act does not cure the conviction. The person would need to appeal or seek some other remedy; the Act does not provide a mechanism to set aside the conviction. Section 6(3) clarifies that “enforceable” includes being dealt with by proceedings under Division 2 of Part XIIIA of the Family Law Act 1975 (contravention proceedings). That Division provides for sanctions such as fines, community service orders, and imprisonment for contravening orders. So for enforcement under contravention proceedings (which are not classified as contempt), the Act retroactively makes the parent order enforceable.

The Act is expressly linked to three Commonwealth Acts: the Family Law Act 1975, the Child Support (Registration and Collection) Act 1988, and the Child Support (Assessment) Act 1989 (see the definitions of “federal family jurisdiction” and the conferral of jurisdiction in s 12). The deeming provisions in ss 5 and 6 depend on the Family Law Act 1975’s treatment of registered parenting plans: the conditions and limitations in sections 63F and 63G of that Act are imported for ineffective orders of the parenting-plan type. Those sections govern how a parenting plan takes effect as an order, its duration, and its interaction with later court orders. This means a parenting plan deemed valid under the Act may expire or be superseded by later orders according to the same rules as a validly registered plan. The Act also interacts with the Family Court (Orders of Registrars) Act 1997 of Western Australia (the corresponding Western Australian Act). The Commonwealth Act and the Western Australian Act are complementary: both validate the same class of orders from the same court, but the Commonwealth Act deals with orders made in federal family jurisdiction, while the Western Australian Act presumably covers state jurisdiction orders (not defined in this Act). Section 3 defines “corresponding Western Australian Act” and uses its commencement date as the cut-off for ineffective orders. Section 11 excludes from the Act any order declared invalid by the Full Court of the Family Court of Australia before the commencement of the corresponding Western Australian Act. This preserves the effect of a judicial determination of invalidity that would otherwise be overridden by the retrospective validation. It also creates a potential inconsistency: an order declared invalid by the Full Court is not revived, but a substantively identical order not subject to such a declaration is revived. The Act does not affect the operation of statutes of limitation, but because it deems rights and liabilities always to have existed, it may revive stale claims. Section 12 confers federal jurisdiction on specified courts, but conditions it on the court having equivalent jurisdiction under the Family Law Act 1975 or the Child Support Acts. This prevents a court of summary jurisdiction that does not usually hear family law matters from being swamped by applications under this Act.

The Act as provided in the source text contains no amendment history. It appears to be a short, stand-alone enactment that was passed in 1997 and likely has never been amended. The source text shows no tables of amendments, no repeal of provisions, and no insertion of new sections. Section 1 gives the short title, s 2 provides for commencement on Royal Assent. The Act does not refer to any amendments to itself. Given its narrow remedial purpose - to validate a discrete class of past orders - there was probably little reason to amend it over time. The class of orders it validates is closed (orders made before the commencement of the corresponding Western Australian Act), so the Act’s operative effect is limited to events that occurred before a fixed date. If there were subsequent amendments, they would likely be reflected in the text provided; the absence of any indicates the Act has not been altered. Practitioners should nevertheless check the Federal Register of Legislation for the current compilation. Note that the Act uses the name “Federal Circuit and Family Court of Australia (Division 1)” in s 12(1), which suggests that provision may have been updated to reflect the merger of the Federal Circuit Court and the Family Court of Australia in 2021. The original provision probably referred to the “Family Court of Australia” and the “Federal Magistrates Court”. Since the user provided the full text as reflecting the current law, that change appears in the source, meaning s 12 at least has been updated. That indicates an amendment occurred post-2021 to substitute the new court name. The source does not show a formal amendment table, but the presence of the current court name is strong evidence of amendment.

The Act’s text does not name any specific cases. However, the entire purpose of the Act implies that there was litigation or at least legal uncertainty about the validity of orders made by Registrars of the Family Court of Western Australia before the corresponding Western Australian Act came into force. The typical background is that a party challenged a Registrar’s order on the ground that the Registrar lacked the power to make a judicial determination that was not reviewable (other than by appeal). Such a challenge would have succeeded in common law - an order made without jurisdiction is void. The Act was a legislative response to prevent the disruption that would follow if all such orders were retrospectively invalidated, potentially undermining parenting arrangements, property settlements, child support assessments, and enforcement actions that had been relied upon for years. The Full Court of the Family Court of Australia may have been involved in at least one case: s 11 excludes orders that the Full Court declared invalid before the commencement of the corresponding Western Australian Act. That exclusion suggests that there was at least one case where the Full Court pronounced on the invalidity of such an order, and the Act deliberately does not override that specific judicial determination. The date of the Full Court’s decision would have been before the WA Act commenced. The Act also implicitly anticipates litigation under s 8: if a court made a replacement order on the basis that the original order was invalid, s 5 ceases to have effect. That provision was likely drafted to accommodate cases where a court had already rectified the situation by making a new order. The existence of s 8 indicates that at least some courts had proceeded on the assumption of invalidity, and this Act respects those decisions rather than retrospectively validating the original order in full. No subsequent litigation history is derivable from the source, but the Act could still be relevant in cases where a party seeks to enforce or challenge a long-standing order that was made by a Registrar before the WA Act.

1. Retrospectivity can revive stale rights but also create unexpected liabilities. Section 5(1) declares rights and liabilities “always to have been” the same as if the order had been valid. This means that a person who thought a Registrar’s order was void and ignored it may now be in breach, and a person who did not comply with an enforcement action may still face consequences. The Act does not provide a grace period or a defence of reasonable reliance on the order’s invalidity. 2. Prior convictions are not validated nor invalidated. Section 7(3) prevents the Act from validating or confirming a conviction entered before commencement that was based on the assumption the order was valid. This leaves a gap: a person convicted for contravening a Registrar’s order before the Act cannot rely on the Act to set aside the conviction, even though the Act now says the order was valid. The conviction remains legally suspect because it was based on an order that was then void; the Act does not fix it. The person would need to appeal or apply for a pardon. 3. Section 11 exclusion is absolute. If the Full Court of the Family Court of Australia declared the specific order invalid before the commencement of the corresponding Western Australian Act, then nothing in this Act applies. The order remains void. A practitioner must check the date of any Full Court declaration. 4. Parenting plans have limitations imported from the Family Law Act. Sections 5(2), 6(2) and 9(3) each subject the deemed order to the conditions and limitations of sections 63F and 63G of the Family Law Act 1975. Those sections limit the duration of parenting plans and provide that they are automatically discharged by a later parenting order. So even though the plan is now treated as a court order, it may have already ceased to have effect if a later order was made, or it may cease on the child’s 18th birthday. 5. The definition of “proceedings for the order” matters. For an ineffective order under s 4(2), the proceedings are the actual proceedings in which the order was purportedly made. For a parenting plan under s 4(3), the proceedings are a fictional construct - the proceedings that would have been constituted by an application for an order. This affects the scope of ss 5 and 9: the deemed order is tied to those proceedings, which may not correspond to any actual court file. 6. The Act does not apply to orders that were not of the kind described. Not every Registrar’s order is covered. Only those that were judicial determinations not reviewable otherwise than on appeal fall within s 4(2). If the Registrar made an order that was reviewable internally (e.g., by way of a hearing de novo), the Act does not validate it. 7. Enforcement laws exclude contempt. Section 7(4) defines enforcement law as excluding a law relating to contempt of court. That means if a person was charged with contempt for disobeying a Registrar’s order, the Act does not retroactively make that contempt proceeding valid. The contempt charge would be ineffective if based on a void order. 8. Jurisdiction is conditional. Even though jurisdiction is conferred broadly under s 12(1) and (2), a court only has jurisdiction if it would have had jurisdiction over an equivalent matter under the Family Law Act 1975 or the Child Support Acts (s 12(3)). A person may need to start proceedings in a specific court that ordinarily handles family law matters.

For a legal practitioner dealing with a past order made by a Registrar of the Family Court of Western Australia before the commencement of the corresponding Western Australian Act, the first step is to determine whether the order is an ineffective order under s 4. Check the court record: was the order made by a Registrar? Was it a final or interim decision that was not subject to internal review (only appealable to a judge)? If so, it likely qualifies. For parenting plans, check whether a Registrar purported to register the plan under s 63E of the Family Law Act 1975. Next, check s 11: was that specific order declared invalid by the Full Court of the Family Court of Australia before the WA Act commenced? If yes, the Act does not apply and the order remains void. If s 11 does not apply, the order is deemed valid from the beginning under s 5. The client should be advised that they must treat the order as binding and comply with its terms, and that any prior non-compliance may still be actionable, subject to limitation periods. If enforcement is sought, rely on s 7 to show that the order is valid for the purposes of Commonwealth enforcement laws (other than contempt). If a party wishes to vary or set aside the deemed order, file an application in a court that has jurisdiction under s 12. The application should be framed under s 9, which gives the court power to vary, revoke, set aside, revive or suspend the rights and liabilities as if they were rights under a valid order. The court can also make any order that could have been made if the order had been valid. However, check whether a replacement order was already made by a court under s 8 - if so, s 5 ceased to have effect when the replacement order took effect, and the deemed order no longer exists. In that case, the replacement order is the operative order. For parenting plans, remember that the deemed order is subject to the same conditions and limitations as under ss 63F and 63G of the Family Law Act 1975. Those sections impose time limits and provide for automatic discharge by later orders. Advise the client accordingly. If a conviction was entered before the Act for an offence based on the order, s 7(3) prevents the Act from validating that conviction. The client may need to appeal or seek a pardon - the Act does not provide a remedy. Keep a certified copy of the court record (original order or registration decision) as evidence of the deemed rights under s 10.