© 2011 Television Education Network Pty Ltd and Jacqueline Campbell, Forte Family
Lawyers
De Facto Relationships - Update on The Proclamation Problem - March 2012, by
Jacqueline Campbell, Forte Family Lawyers
Because of – to put it politely – a “bureaucratic oversight”, for three years Australian Family
Courts made orders regarding de facto matters without jurisdiction to do so.
In order to overcome this hiatus, the Government introduced the retrospective Family Law
Amendment (Validation of Certain Orders and Other Measures) Bill on 14 March 2012.
On 22 March, the Bill passed into law in what we will call the Validation Act.
In this program, we look at the “bureaucratic oversight” – and the current state of play - with
the help of Jacky Campbell of Forte Family Lawyers in Melbourne.
The situation regarding the “bureaucratic oversight” may be summarised as follows:

Courts did not have jurisdiction re de facto financial causes from 1 Mar 2009

Contrary to the Federal Government’s intention, Family and Federal Magistrates Courts
did not have jurisdiction in relation to de facto financial causes from 1 March 2009;

Jurisdiction only proclaimed to commence from 11 Feb 2012

Jurisdiction was only proclaimed to commence from 11 February 2012;

State & Territory courts continued to have jurisdiction after 1 Mar 2009 (1 July 2010 in SA)

State and Territory courts continued to have relevant jurisdiction after 1 March 2009 – or 1
July 2010 in South Australia; AND

Uncertainty re orders made/applications filed before 11 Feb 2012

Accordingly, uncertainty arose regarding the status of things occurring before 11
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The problems raised in this program don't apply to Western Australia as the Family Court of
Western Australia continues to exercise state jurisdiction over de facto relationships.
However, there is an aspect of the retrospective legislation which does apply to Western
Australia. I'll explain this later.
The Family Court’s jurisdiction under the Family Law Act can only be exercised in
accordance with a Proclamation made under section 40.
Subsection 40(2) provides that the Governor-General may, by proclamation, fix the date from
which relevant jurisdiction can be exercised by the Family Court.
On 5 February 2009, the De Facto Financial Matters and Other Measures Act 2008 – which
we will call the "De Facto Act" - was proclaimed, with a commencement date of 1 March
2009.
Amongst many other changes, the De Facto Act inserted into the Family Law Act:

S31(1)(aa) - confers jurisdiction on Family Court re "matters arising under this Act in
respect of which de facto financial causes are instituted under this Act"

Section 31(1)(aa) - which confers jurisdiction on the Family Court regarding "matters
arising under this Act in respect of which de facto financial causes are instituted under this
Act"; AND

S39C –G-G may make proclamation terminating State & Territory jurisdiction re de facto
financial causes - or terminating it conditionally

Section 39C – under which the Governor-General may make a proclamation terminating
State and Territory jurisdiction with respect to de facto financial causes - or terminating it
conditionally.
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Having regard to these provisions, where did things go wrong?
Simply put, the 5 February 2009 proclamation:

Did not refer to section 40(1) or the new section 31(1)(aa) – meaning that jurisdiction over
de facto financial causes was not conferred on the Family Law Courts; AND

Did not refer to the new section 39C - meaning that State and Territory jurisdiction was
not terminated – either absolutely or conditionally.
This latter aspect has still not been rectified but jurisdiction over de facto financial causes
commenced by a Proclamation on 11 February 2012.
What about the impact of the “oversight” on the Federal Magistrates Court?
It appears that the Federal Magistrates Court is also affected by the oversight. Under section
40A of the Family Law Act the jurisdiction of the Federal Magistrates Court can't be exercised
in a particular State or Territory if the corresponding jurisdiction of the Family Court is not
capable of being exercised in that State or Territory.
This means that the Federal Magistrates Court cannot exercise jurisdiction in, say, New
South Wales, if the jurisdiction it seeks to exercise is not capable of being exercised by the
Registries of the Family Court in New South Wales.
Clearly, the “oversight” gave rise to a range of issues for parties and their advisers.
We asked Jacky Campbell to comment on the issues involved.
Parliament needed to address a number of issues in the retrospective legislation:
1.
There were 3 years of invalid orders. The rights and responsibilities of parties and nonparties affected by these orders needed to be clarified and protected.
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2.
Orders made during that 3 year period may have been varied, discharged, declared
invalid or appealed. The retrospective legislation had to be careful not to give fresh life
to those orders.
3.
It had to fix a similar problem which arose from the failure to make a proclamation in
2006 in relation to appeals from Family Law Magistrates of Western Australia.
4.
Preferably, it should legislate to avoid the problem occurring again.
While – as explained later - the jurisdictional hiatus has been addressed in the Validation Act,
it is nonetheless interesting to consider the situation had continued unabated.
After all – heaven forbid – we may face a similar situation again in the future!
Relevantly, subsection 21(2) of the Family Law Act says that the Family Court is a superior
court of record.
If we follow the approach taken by the High Court in 1982 in DMW versus CGW – and by
Justice Kirby in his dissenting judgement in Residual Assco Group versus Spalvins in 2000 –
this means that Family Court orders are voidable (not void), even if made in the absence of
jurisdiction.
However, if we follow the majority of the High Court in the Residual Assco Group case, the
issue is unresolved and it is arguable that Family Court orders can simply be ignored.
The Federal Magistrates Act does not expressly state that the Federal Magistrates Court is a
superior court.
Therefore, on one view, orders made in the absence of jurisdiction are void ab initio - and
therefore can be treated as if they never existed.
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However, there are contrary arguments – as Jacky Campbell explains.
The position regarding applications filed before 11 February 2012 can possibly be compared
to Applications for Divorce filed when the Family Law Courts have no jurisdiction to hear
them.
Jacky Campbell explains.
Parties sometimes attempt to file Applications for Divorce before 12 months has expired from
the date of separation as required by s 48(2) of the Act. The court refuses to accept these
applications as it has no jurisdiction to deal with them. If an Application for Divorce is filed
and it subsequently transpires that the date of separation was not 12 months before the date
of filing, the Application cannot simply be adjourned until after the 12 months have expired. In
Price and Underwood (2009) FLC ¶93-408 and Whiteoak and Whiteoak (1980) FLC ¶90-837
the Full Court confirmed that a fresh application had to be filed.
The alternative view is that s 39A which provides for the institution of de facto proceedings,
doesn't rely on a s 40 proclamation as when a party files proceedings the court is not
exercising jurisdiction. Section 39A(5) provides that "A de facto financial cause that may be
instituted under this Act must not, after the commencement of this section, be instituted
otherwise than under this Act". I am unsure whether this completely solves the problem,
even retrospectively.
Applications issued prior to 11 February 2012 were issued when the court didn't have power
to make orders, but at the same time those courts were apparently the only courts in which
the proceedings could be filed. It simply doesn’t make sense. Justice Kent in Brugman and
Marley alluded to the problem but didn't have to decide the issue.
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It is interesting to look at a Family Court decision dealing with proceedings instituted during
the hiatus period.
In Sabata and Sabata, the parties had filed proceedings for property orders in August 2009 –
that is, during the hiatus period
The matter was settled and - after the corrective proclamation from 11 February 2012 –
Justice Watts was asked to make final consent orders.
In his 7 March judgment, His Honour said the following:
“s39A... provides that proceedings may be instituted under the Family Law Act in
respect of a de facto financial cause in the Family Court and other courts.”
“s39A... provides that proceedings may be instituted under the Family Law Act in
respect of a de facto financial cause in the Family Court and other courts.”
“This section is independent of s39B...which gives the court power to act upon those
applications”
“This section is independent of section 39B, which gives the court power to act upon those
applications.”
“This section is independent of section 39B, which gives the court power to act upon those
applications.”
“Consequently, the lack of a timely proclamation does not affect the validity of applications
filed prior to 11 February 2012 - only the exercise of jurisdiction based on those applications
prior to that date”.
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Ultimately, His Honour held the applications lodged in August 2009 to be valid and made
consent orders as requested.
I am struggling with this, although other Judges besides Justice Watts, including Justices
Cronin and Murphy have adopted this approach.
Justice Cronin in an unreported case said:
"I do not consider that there is a problem with the extant proceedings themselves because
the Court has been given the jurisdiction by the parliament but because of the proclamation
problem, that jurisdiction is not operative. It is only orders made which have a validity
problem. As the proclamation has been signed, the jurisdiction is now operative."
My difficulty is that the Family Law Courts were accepting applications although it didn't have
the power to make orders. If a court doesn't have operative jurisdiction and can't make
orders, how can it validly accept Applications? Although the wording of the legislation is
different, I think the analogy with Applications for Divorce is useful.
As mentioned at the beginning of the program, we now have the Validation Act.
We asked Jacky Campbell to identify the key aspects of the Act.
The Act does several things:
1.
It declares that the rights and liabilities of all persons affected by orders made during the
period before 11 February 2012 are the same as if the proclamation had been made
when it should have been made.
2.
Liabilities arising from convictions for offences relating to de facto financial causes are
excluded from this retrospectivity.
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3.
If new orders have been made on the basis that the affected order was or might have
been invalid the retrospectivity doesn't apply to revive the affected order.
4.
If an order has been declared or held to be invalid or to have been made without power
before the commencement of the retrospective legislation, the order isn't revived.
5.
Orders made on appeal from Family Law Magistrates in Western Australia are
retrospectively validated.
6.
Sections 40(1) and 40(2) are removed from the Act and replaced with a new subsection
40(1) which provides for regulations to be made which specify a date from which the
jurisdiction of the Family Court of Australia under the Family Law Act, in relation to all or
a specified class of proceedings, must not be exercised in specified States or
Territories. This ensures that the Attorney-General's Department can't stuff up again.
Let’s now look at specific aspects of the Validation Act in more depth.
SQL: “Right and liabilities”:

Rights and liabilities always same as if “assumed matters” had applied

The Act declares the rights and liabilities of all persons to have always been the same
as if the “assumed matters” had been the case:

Assumed matters: Proclamations under 40(2) fixing date of FC’s jurisdiction under
31(1)(aa) as :
 1 Mar 2009 for NSW, VIC, QLD, TAS, ACT, NT & NI
 1 July 2010 for SA
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
The “assumed matters” are defined as Proclamations under subsection 40(2) of the
Family Law Act fixing the date from which the jurisdiction of the Family Court under
paragraph 31(1)(aa) could be exercised as :
 1 March 2009 for New South Wales, Victoria, Queensland, Tasmania, the ACT, the
NT and Norfolk Island; AND
 1 July 2010 for South Australia.
An affected order is an order purportedly made, before 11 February 2012, by:
(i) the Family Court; or
(ii) the Federal Magistrates Court; or
(iii) a Registrar;
in the exercise of jurisdiction under the Family Law Act 1975 in respect of matters referred to
in s 31(1)(aa) or s 39B(1).
Also protected as "affected orders" are arbitration awards registered with the Family Law
Courts in the affected period and orders purportedly made on appeal from orders or awards
made in the affected period.
If, before the commencement of the Validation Act, an affected order was purportedly varied,
revoked, set aside, revived or suspended, the order which remains in force is the later order
despite the Validation Act.
The phrase "Order-based rights or liabilities" refers to orders made on the basis that the
affected order might have been invalid. If the new order:
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(i) conferred or imposed rights or liabilities similar to or different from those purportedly
conferred or imposed by the affected order; or
(ii) affected rights or liabilities in the same way as they were purportedly affected by the
affected order or in a different way;
the Validation Act does not apply insofar as the earlier affected order is not validated.
So, if an order was re-made to ensure its validity, the new order will be valid, not the earlier
order made in the affected period.
Importantly:

Rights retrospectively affected include rights to appeal/seek review “affected
ordersRights retrospectively affected include rights to appeal/seek review “affected
orders

Peoples’ retrospectively affected rights are declared to include rights to appeal - or seek
review of - “affected orders”; BUT

Previous conviction/purported conviction for offence re de facto financial cause not
altered retrospectively

The Act does not retrospectively alter liabilities arising from a previous conviction (or
purported conviction) of a person for an offence relating to a de facto financial cause.
The main problem here is that although liabilities arising from convictions for offences relating
to de facto financial causes are excluded from this retrospectivity, this doesn't, address the
problem of whether a party can be convicted of an offence for breaching an order made prior
to 11 February 2012. The Validation Act does not deal with the problems faced by courts,
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lawyers and clients with respect to enforcement of orders made before the proclamation.
Enforcement is a discretionary matter and courts may be reluctant to enforce orders,
particularly those made during the period after the problem was discovered and before it was
rectified with the Validation Act. At that time there was uncertainty about validity and when
the problem would be fixed
We asked Jacky Campbell to comment on what the Validation Act expressly says about the
jurisdiction of the Courts.
Jurisdiction is conferred on:
(a) the Family Court; and
(b) the Federal Magistrates Court; and
(c) the Supreme Court of the Northern Territory; and
(d) each court of summary jurisdiction of each Territory.
Subject to this, each court of summary jurisdiction of each referring State is invested with
federal jurisdiction with respect to matters arising under this Part of the Validation Act.
A court only has jurisdiction with respect to a matter arising under this Part if it has jurisdiction
with respect to an equivalent matter arising under the Family Law Act 1975.
Finally, we asked Jacky whether – overall – the Validation Act does what it needed to do.
Does it get a “pass” or a “fail”?
It certainly gets a pass for a couple of reasons. The retrospective legislation was introduced
to Parliament on 14 March 2012 and was passed by Senate on 22 March 2012. That's fairly
fast, about a month after clients and lawyers became aware of the problem. So the
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inconvenience to the courts, clients and their lawyers, although significant, was only for a
limited period.
Also, the approach in the Bill is the same as that taken most recently in the 2010
Amendments to the Family Law Act, which addressed concerns arising from the High Court's
decision in MRR v GR [2010] HCA 4, more commonly known as Rosa. That seemed to work
so it makes sense to follow that path.
And that completes the program
1.
How and when was jurisdiction actually conferred on the Family Court in relation to de
facto financial causes?
2.
Summarise section 40 of the Family Law Act.
3.
Explain where the 5 February 2009 proclamation was deficient.
4.
Summarise the key aspects of the Family Law Amendment (Validation of Certain
Orders and Other Measures) Act 2012
GUIDE
The Federal Parliament recently passed retrospective legislation designed to remedy
problems caused by a crucial “bureaucratic oversight” regarding de facto financial matters.
This program examines:

mistakes made in proclaiming relevant Commonwealth legislation;

the impact of the resulting jurisdictional hiatus; and

key aspects of the the Family Law Amendment (Validation of Certain Orders and Other
Measures) Act 2012.
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