Family Law Cases in Limbo Due to Federal A-G Oversight
Posted: 22nd February 2012
Posted in: News
Posted by: Dean Evans, Partner
Attorney-General Fail or Just a Big Whoopsie?
Recently, it was revealed that the Federal Government (thanks Mr Labor Attorney-General and staff) had forgotten to proclaim a date from which the Family Court and Federal Magistrates Court could exercise jurisdiction in de facto property settlement and maintenance cases.
In strict legal theory, this means that Orders made in relation to financial outcomes for De Facto couples between 01.03.2009 and 11.02.2012 were made without legislative authority and ought be considered arguably invalid.
A rather huge mistake don’t you think?
Family Law Amendment Not Proclaimed
The Family Law Act 1975 was amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the De Facto Act) to cover financial matters for de facto couples. It could not commence until proclamation which did not occur until (on 9 February 2012) the Governor-General made a proclamation fixing 11 February 2012 as the date on and after which the jurisdiction of the Family Court (FCOA) in relation to de facto financial causes could be exercised.
The date applies equally to the Federal Magistrates Court (FMCA) when it exercises de facto financial jurisdiction.
In respect of Queensland and some other States, it would appear that the period between the commencement of the relevant parts of the De Facto Act on 1 March 2009 and 11 February 2012, the Courts (the FCOA and FMCA) did not have jurisdiction.
Remedy The Family Law Act Now!
Clearly, the remedy must be that the Federal Government ought to promptly draft and pass retrospective legislation, making all Orders during the period in question valid.
For the time being however, it is unknown how and when this issue will be resolved and as such the effectiveness of all Orders made during the period unclear.
Heads ought roll given the failure to ensure that checks and balances were not followed in the normal processing of legislation so as to it can be given effect.
Fancy the Government overlooking such an important matter and leaving litigants Courts and lawyers in limbo.