In Re Magistrate Francine Walter; Ex Parte Tull  WASC 271, the Supreme Court of Western Australia refused leave to the applicant to institute proceedings against the Chief Judge of the Family Court of Western Australia, family law magistrate Francine Walter and the Family Court of Western Australia. In this decision Justice Banks-Smith discusses, inter alia, the relevant legislative provisions which confer federal jurisdiction under the Family Law Act 1975 (Cth) on both the Family Court of Western Australia constituted by the Chief Judge and Judges, and on family law magistrates.
In the Family Court of Western Australia there were property settlement proceedings in which the Magistrate and the Chief Judge both made Orders. The property settlement proceedings, including the Orders made and alleged conduct of the judicial officers, formed the basis of the applicant’s complaints to the Supreme Court of Western Australia.
The applicant wished to seek Orders against the Magistrate for replacement of property and other “punishment”. He wished to seek Orders against the Chief Judge for replacement of his car and other relief. Finally, the applicant wished to seek unspecified damages against the Family Court of Western Australia which effectively stemmed from the alleged conduct of the Magistrate and the Chief Judge.
Justice Banks-Smith considered the issue of judicial immunity stating at paragraph 12 “A judge of a court of record is not liable to be sued in respect of judicial acts performed in the exercise of their discretion”. He found that the Chief Judge and the Magistrate were exercising powers in proceedings in respect of division of property of parties to a marriage and that these proceedings are a matrimonial cause as defined in section 4(1) of the Family Law Act 1975 (Cth). In considering the jurisdiction and roles of a judge of the Family Court of Western Australia and a family law magistrate, Justice Banks-Smith stated at paragraphs 16 and 17:
16 “In summary, as to a judge of the Family Court of Western Australia:
(a) the Family Court of Western Australia was established by the Family Court Act 1975 (WA) and continued by the Family Court Act 1997 (WA). The Family Court of Western Australia is constituted by the Chief Judge and its judges; and
(b) by s 41(3) of the Family Law Act, the Family Court of Western Australia is invested with the same federal jurisdiction as that conferred on the Family Court of Australia with respect to matrimonial causes.
17 The position as to a family law magistrate is more complex. In summary:
(a) courts of summary jurisdiction in Western Australia (including the Magistrates Court) have limited family law jurisdiction conferred on them by s 39(6) and s 69J of the Family Law Act. Section 39(6) provides that courts of summary jurisdiction are invested with federal jurisdiction with respect to certain matrimonial causes, including the division of property. Section 39(6) must be read subject to (relevantly) s 39(7) (see below);
(b) by the Family Court Act, registrars of the Family Court of Western Australia who are concurrently appointed as magistrates under the Magistrates Court Act 2004 (WA) are conferred with the title ‘family law magistrate’;
(c) by the Jurisdiction of Courts (Family Law) Act 2006 (Cth), the Family Law Act was amended to (relevantly) include a definition of ‘family law magistrate of Western Australia’ and make other changes, such that the family law magistrates were treated differently from other magistrates sitting in courts of summary jurisdiction;
(d) by s 39(7) of the Family Law Act, the Governor-General may, by proclamation, fix a day after which proceedings (including certain matrimonial causes) may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory;
(e) there have been relevant proclamations. By the Jurisdiction of Courts of Summary Jurisdiction (Matrimonial Causes) Proclamation 2006, the jurisdiction conferred on courts of summary jurisdiction under s 39(6) with respect to matrimonial causes was proscribed such that proceedings in the Perth metropolitan area could not be dealt with by a court of summary jurisdiction other than by the Magistrates Court constituted by a family law magistrate; and
(f) accordingly, with respect to proceedings instituted in the Perth metropolitan area, a family law magistrate in Western Australia may exercise federal jurisdiction as to property division proceedings between parties to a marriage.”
Justice Banks-Smith found that both the Chief Judge and the Magistrate were acting within jurisdiction in dealing with the property settlement proceedings which were the centre of the applicant’s complaints. Consequently, the applicant was faced with an “insurmountable obstacle” by reason of judicial immunity from suit which both judicial officers had the benefit of.
He went on to state that the applicant’s proposed writ was also an abuse of process as it failed to enunciate a legitimate cause of action against the Chief Judge, the Magistrate and the Family Court of Western Australia.
His Honour referred to the applicant’s rights of appeal and the ability for property settlement orders to be varied or set aside however did not suggest there were any grounds upon which an application could successfully be made by the applicant.
Dianne Caruso Associate Email: firstname.lastname@example.org