Family Court of Western Australia

The Family Court of Western Australia is a state court that deals with family law. It was established by the passing of the Family Court Act (WA, 1975) and commenced operation in 1976. It is a state Family Court under section 41 of the Commonwealth Family Law Act 1975,[1] and deals with the same issues as the Commonwealth Family Court, including divorce, marital property settlements, and child custody, and also adoption and surrogacy. Although funded by the Commonwealth Government, it is the only state-based family court in Australia. The reason for the creation of the court as a state court was to bestow additional jurisdiction related to family law on the court, which were beyond the scope of federal power, such as de facto arrangements and adoptions.

The Family Court of Western Australia

Structure

Western Australia is unique amongst Australian states in being the only state with its own Family Court. Family law matters in all other states are dealt with by two federal Courts - the Family Court of Australia and the Federal Circuit Court. The Family Court of Western Australia is an integrated court, in that it combines the functions of a superior court and a lower court. Officially, the Family Court is two courts in one - the Family Court itself (constituted by its Judges) and a Magistrates Court (constituted by Family Law Magistrates). Its Magistrates' division is officially differentiated from the main Magistrates Court of Western Australia by being referred to as the 'Magistrates Court at 150 Terrace Rd Perth'.

Section 41 of the Family Law Act 1975 (Cth) permitted a state to establish its own Family Court. The Family Court of Western Australia was established by the Family Court Act 1975 (WA) (later repealed and replaced by the Family Court Act 1997 (WA)). In the second reading speech of the 1975 bill the Minister for Works, Des O'Neil, referred to a number of reasons the Western Australian Government preferred to keep a state-based Family Court (rather than referring family law matters to a Commonwealth court). These included concerns over the demarcation of federal and state jurisdiction and its effect on litigants, that the Court could exercise related state jurisdiction, and to "keep the justice system as close to the people of the state" as possible without the need to establish a Commonwealth court.[2]

In 2008, the federal Attorney-General announced a review of the delivery of family law services by the Family Court of Australia and the Federal Magistrates Court.[3] A November 2008 report set out a possible framework of governance options to achieve a more integrated system of case management practices across the federal family law jurisdiction, with changes in judicial structures and reporting relationships. According to the report, all review submissions, with the exception of that provided by the Federal Magistrates' Court, "considered that the most effective model for the delivery by the Courts of family law services would be a single family court, with two separate judicial divisions serviced by a single administration."[4] The proposed federal model is similar to that of the Family Court of Western Australia, which the Law Council of Australia, in its submission, had noted as "providing a useful model of the structure and functioning of an integrated Family Court".[5] The Chief Justice of the Family Court of Australia, Diana Bryant, in her submission, also favoured a single integrated federal family court structured similarly to the Family Court of Western Australia.[6]

Funding

Under the terms of a 1976 agreement signed by Prime Minister Malcolm Fraser and the State Premier Sir Charles Court, the Commonwealth government provides almost all funding for the operation of the Family Court of WA.[7] The Western Australian government issues an invoice to the Commonwealth, on a quarterly basis,[8] for the cost of operations, and receives payment from the Commonwealth. In 2007-08, the Court's operating budget was approximately $17m, $10.6m of which was for staff and judicial salaries. In that financial year, expenditure exceeded budget by $1.27m and by July 2008, the Court was carrying a cash deficit position of almost $200,000.[7][9]

Although a State Court, the Family Court of Western Australia is located within the Commonwealth Court complex, which houses the Federal Court of Australia in Perth. The Court leases part of the building from the Commonwealth. Court security is provided as part of the lease arrangement.[9]

Jurisdiction

For married people who want to divorce and make arrangements for children, property and spousal maintenance, proceedings in the Family Court of Western Australia are held under the Family Law Act 1975 (Commonwealth), which is federal legislation. For unmarried people who seek arrangements for children, property and maintenance, the Court proceedings are held under the Family Court Act of 1997 (Western Australia) which is state legislation. In 2002, the legislation was amended to incorporate de facto relationships and their property matters.[10]

Adoption

Elsewhere in Australia, the legal aspects of adoption are dealt with either in the Supreme or District Courts of each state and territory.[11] In Western Australia, the Family Court of Western Australia is responsible for the approval of adoption applications in the state. Judges of the court make adoption orders and other related orders, and the court then issues the appropriate orders. The court also releases information from past adoption cases at the request of the Department for Community Development. Officers at the court coordinate the processing of adoption applications and release of information as well as answering enquiries from the public.[12]

Surrogacy

The Family Court of Western Australia has jurisdiction under the Western Australian Surrogacy Act 2008. Judges of the court may make parentage orders and other related orders. A parentage order transfers the parentage of a child from his or her surrogate birth parent/s to the child’s arranged parents. The arranged parents then become the child’s legal parents. After commencement of the Surrogacy Act 2008 on 1 March 2009, any person wishing to enter into a surrogacy arrangement must comply with all the procedures set out under the Act and Regulations if they propose to apply to the Family Court of WA for a parentage order. If a child is conceived through a surrogacy arrangement before the Act came into effect, an application may be made to the Family Court of WA for a parentage order provided the application is brought within 12 months of the child’s birth and all the requirements set out in the Act have been met.[13]

Judicial Officers

The Court is presided over by five judges, ten magistrates, and four sole judicial registrars.

Chief Judge
  • The Honourable Justice Gail Sutherland (appointed 7 January 2019)

Judges
  • The Honourable Justice Simon Moncrieff (appointed 31 August 2009)
  • The Honourable Justice Susan Duncanson (appointed 6 December 2012)
  • The Honourable Justice Richard O'Brien
  • Her Honour Judge Ciara Tyson (appointed 7 January 2019)

All the Court's judges, apart from Her Honour Judge Ciara Tyson, hold dual commissions; on appointment to office, they are also appointed to the Family Court of Australia.[14] In addition to their judicial role in relation to family law matters, Judges of the Family Court of WA are often required after hours and on weekends to determine applications under the Telecommunications (Interception) Act from law enforcement agencies, relating to authorisations for carrying out telephone surveillance activities. In 2005 there were 153 such applications.[15]

Family Law Magistrates

As at 8 January 2019, the Magistrates of the Court are:[16]

  • Magistrate Annette Andrews (Acting Principal Registrar)
  • Magistrate Lisa Stewart
  • Magistrate Francine Walter
  • Magistrate Mark Calverley
  • Magistrate Colin Kaeser
  • Magistrate Catherine Osborn
  • Magistrate Eric Martino
  • Magistrate Paul Glass
  • Magistrate Neil Anderson
  • Magistrate Andrew Mackey

Registrars
  • Registrar Leonie Forrest (Principal Registrar)
  • Registrar Andrzej Meysner
  • Registrar Jocelyn Connick
  • Registrar Thomas Kuurstra
  • Registrar Simon French
  • Registrar Megan Wadsworth
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See also

References
  1. "Family Law Act 1975 Sect 41". Retrieved 16 January 2017.
  2. Western Australia, Parliamentary Debates, Legislative Assembly, 21 October 1975, 3605-6 (Des O'Neil)
  3. "A Better Framework for Federal Courts - Consultation". Attorney-General's Department. 20 November 2008. Archived from the original on 8 January 2009. Retrieved 18 January 2009.
  4. "Report on future governance of federal family courts in Australia November2008" (PDF). Attorney-General's Department. 16 January 2009. Retrieved 18 January 2009.
  5. "Law Council submission to Attorney-General's Department" (PDF). Law Council of Australia. 16 May 2008. Retrieved 18 January 2009.
  6. "Chief Justice Bryant's submission to Attorney-General's Department" (PDF). Attorney-General's Department. 6 June 2008. Retrieved 18 January 2009.
  7. "Letter from Chief Judge of Family Court of WA to House of Representatives Standing Committee" (PDF). Parliament of Australia. Archived from the original (PDF) on 17 August 2008. Retrieved 4 April 2009.
  8. "Standing Committee On Legal And Constitutional Affairs 20 Oct 2008" (PDF). Parliament of Australia. Archived from the original (PDF) on 10 October 2009. Retrieved 4 April 2009.
  9. "Joint Committee Of Public Accounts And Audit" (PDF). Parliament of Australia. Archived from the original (PDF) on 25 October 2009. Retrieved 4 April 2009.
  10. "Legislation". Family Court of WA. Archived from the original on 29 December 2008. Retrieved 2009-04-05.
  11. "The Family Law System". Commonwealth Attorney-General. Archived from the original on 7 March 2009. Retrieved 10 April 2009.
  12. "Adoptions". Family Court of WA. Retrieved 10 April 2009.
  13. "Surrogacy". Family Court of WA. Retrieved 10 April 2009.
  14. "Judges of the Family Court of Western Australia". Family Court of Australia. Archived from the original on 20 May 2009. Retrieved 5 April 2009.
  15. "Annual Review of WA Courts" (PDF). Supreme Court of Western Australia. Archived from the original (PDF) on 16 May 2009. Retrieved 2009-04-07.
  16. "Family Court of WA - About The Court - Judicial Officers". Family Court of WA. Retrieved 18 January 2019.

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