An Act to amend the Family Law Act 1975, and for related
purposes
[Assented to 22 May 2006]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Family Law
Amendment (Shared Parental Responsibility) Act 2006.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and
anything in this Act not elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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22 May 2006
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2. Schedules 1 and 2
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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1 July 2006
(see F2006L01775)
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3. Schedule 3
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1 July 2006.
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1 July 2006
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4. Schedule 4, items 1 to 8
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The day on which this Act receives the Royal Assent.
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22 May 2006
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5. Schedule 4, items 9 to 139
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At the same time as the provision(s) covered by table
item 2.
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1 July 2006
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6. Schedules 5 to 7
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At the same time as the provision(s) covered by table
item 2.
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1 July 2006
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7. Schedule 8, item 1
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At the same time as the provision(s) covered by table
item 2.
However, if section 6 of the Australian
Citizenship Act 2006 commences before that time, the provision does not
commence at all.
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1 July 2006
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8. Schedule 8, item 2
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The later of:
(a) the time that the provision(s) covered by table
item 2 commence; and
(b) immediately after section 6 of the Australian
Citizenship Act 2006 commences.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
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(paragraph (b) applies)
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9. Schedule 8, items 3 to 104
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At the same time as the provision(s) covered by table
item 2.
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1 July 2006
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10. Schedule 9
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At the same time as the provision(s) covered by table
item 2.
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1 July 2006
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11. Schedule 10
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The day on which this Act receives the Royal Assent.
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22 May 2006
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Note: This table
relates only to the provisions of this Act as originally passed by the
Parliament and assented to. It will not be expanded to deal with provisions
inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Shared parental responsibility
Part 1—Amendments
Family Law Act 1975
1 Subsection 4(1)
Insert:
Aboriginal child means a child who is a
descendant of the Aboriginal people of Australia.
2 Subsection 4(1)
Insert:
Aboriginal or Torres Strait Islander culture
in relation to a child:
(a) means the culture of the
Aboriginal or Torres Strait Islander community or communities to which the
child belongs; and
(b) includes Aboriginal or Torres Strait
Islander lifestyle and traditions of that community or communities.
3 Subsection 4(1)
Insert:
family violence means conduct, whether actual
or threatened, by a person towards, or towards the property of, a member of the
person’s family that causes that or any other member of the person’s family
reasonably to fear for, or reasonably to be apprehensive about, his or her
personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably
is apprehensive about, his or her personal wellbeing or safety in particular
circumstances if a reasonable person in those circumstances would fear for, or
be apprehensive about, his or her personal wellbeing or safety.
4 Subsection 4(1)
Insert:
major long‑term issues, in relation to
a child, means issues about the care, welfare and development of the child of a
long‑term nature and includes (but is not limited to) issues of that
nature about:
(a) the child’s education (both
current and future); and
(b) the child’s religious and cultural
upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living
arrangements that make it significantly more difficult for the child to spend
time with a parent.
To avoid doubt, a decision by a parent of a child to form
a relationship with a new partner is not, of itself, a major long‑term
issue in relation to the child. However, the decision will involve a major
long‑term issue if, for example, the relationship with the new
partner involves the parent moving to another area and the move will make it
significantly more difficult for the child to spend time with the other parent.
5 Subsection 4(1)
Insert:
relative of a child:
(a) in Part VII, means:
(i) a step‑parent of
the child; or
(ii) a brother, sister,
half‑brother, half‑sister, step‑brother or step‑sister
of the child; or
(iii) a grandparent of the
child; or
(iv) an uncle or aunt of the
child; or
(v) a nephew or niece of
the child; or
(vi) a cousin of the child;
and
(b) in subsection (1AB), has the
meaning given by subsection (1AC).
6 Subsection 4(1)
Insert:
Torres Strait Islander child means a child
who is a descendant of the Indigenous inhabitants of the Torres Strait Islands.
7 At the end of section 4
Add:
(4) A reference in this Act to a person who
has parental responsibility for a child is a reference to a person who:
(a) has some or all of that
responsibility solely; or
(b) shares some or all of that
responsibility with another person.
(5) A reference in this Act to a person who
shares parental responsibility for a child with another person is a reference
to a person who shares some or all of the parental responsibility for the child
with that other person.
8 Section 60B
Repeal the section, substitute:
60B
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure
that the best interests of children are met by:
(a) ensuring that children have the
benefit of both of their parents having a meaningful involvement in their
lives, to the maximum extent consistent with the best interests of the child;
and
(b) protecting children from physical
or psychological harm from being subjected to, or exposed to, abuse, neglect or
family violence; and
(c) ensuring that children receive
adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their
duties, and meet their responsibilities, concerning the care, welfare and
development of their children.
(2) The principles underlying these objects
are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know
and be cared for by both their parents, regardless of whether their parents are
married, separated, have never married or have never lived together; and
(b) children have a right to spend
time on a regular basis with, and communicate on a regular basis with, both
their parents and other people significant to their care, welfare and
development (such as grandparents and other relatives); and
(c) parents jointly share duties and
responsibilities concerning the care, welfare and development of their
children; and
(d) parents should agree about the
future parenting of their children; and
(e) children have a right to enjoy
their culture (including the right to enjoy that culture with other people who
share that culture).
(3) For the purposes of
subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander
child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture
includes the right:
(a) to maintain a connection with that
culture; and
(b) to have the support, opportunity
and encouragement necessary:
(i) to explore the full
extent of that culture, consistent with the child’s age and developmental level
and the child’s views; and
(ii) to develop a positive
appreciation of that culture.
9 After Subdivision B of Division 1 of Part VII
Insert:
Subdivision BA—Best interests of the child
60CA
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular
parenting order in relation to a child, a court must regard the best interests
of the child as the paramount consideration.
60CB
Proceedings to which Subdivision applies
(1) This Subdivision applies to any
proceedings under this Part in which the best interests of a child are the
paramount consideration.
Note: Division 10 also allows a court to make
an order for a child’s interests to be independently represented by a lawyer in
proceedings under this Part in which the best interests of a child are the
paramount consideration.
(2) This Subdivision also applies to
proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or
63F(6) or section 68R applies.
60CC
How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in
determining what is in the child’s best interests, the court must consider the
matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having
a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from
physical or psychological harm from being subjected to, or exposed to, abuse,
neglect or family violence.
Note: Making these considerations the primary ones
is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and
(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child
and any factors (such as the child’s maturity or level of understanding) that
the court thinks are relevant to the weight it should give to the child’s
views;
(b) the nature of the relationship of
the child with:
(i) each of the child’s
parents; and
(ii) other persons
(including any grandparent or other relative of the child);
(c) the willingness and ability of
each of the child’s parents to facilitate, and encourage, a close and
continuing relationship between the child and the other parent;
(d) the likely effect of any changes
in the child’s circumstances, including the likely effect on the child of any
separation from:
(i) either of his or her
parents; or
(ii) any other child, or
other person (including any grandparent or other relative of the child), with
whom he or she has been living;
(e) the practical difficulty and
expense of a child spending time with and communicating with a parent and
whether that difficulty or expense will substantially affect the child’s right
to maintain personal relations and direct contact with both parents on a
regular basis;
(f) the capacity of:
(i) each of the child’s
parents; and
(ii) any other person
(including any grandparent or other relative of the child);
to provide for the needs of the
child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and
background (including lifestyle, culture and traditions) of the child and of
either of the child’s parents, and any other characteristics of the child that
the court thinks are relevant;
(h) if the child is an Aboriginal
child or a Torres Strait Islander child:
(i) the child’s right to
enjoy his or her Aboriginal or Torres Strait Islander culture (including the
right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any
proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to
the responsibilities of parenthood, demonstrated by each of the child’s
parents;
(j) any family violence involving the
child or a member of the child’s family;
(k) any family violence order that
applies to the child or a member of the child’s family, if:
(i) the order is a final
order; or
(ii) the making of the
order was contested by a person;
(l) whether it would be preferable to
make the order that would be least likely to lead to the institution of further
proceedings in relation to the child;
(m) any other fact or circumstance that
the court thinks is relevant.
(4) Without limiting paragraphs (3)(c)
and (i), the court must consider the extent to which each of the child’s
parents has fulfilled, or failed to fulfil, his or her responsibilities as a
parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the
opportunity:
(i) to participate in
making decisions about major long‑term issues in relation to the child;
and
(ii) to spend time with the
child; and
(iii) to communicate with
the child; and
(b) has facilitated, or failed to
facilitate, the other parent:
(i) participating in
making decisions about major long‑term issues in relation to the child;
and
(ii) spending time with the
child; and
(iii) communicating with the
child; and
(c) has fulfilled, or failed to
fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the
court must, in applying subsection (4), have regard, in particular, to
events that have happened, and circumstances that have existed, since the
separation occurred.
Consent orders
(5) If the court is considering whether to
make an order with the consent of all the parties to the proceedings, the court
may, but is not required to, have regard to all or any of the matters set out
in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander
culture
(6) For the purposes of
paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander
child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture
includes the right:
(a) to maintain a connection with that
culture; and
(b) to have the support, opportunity
and encouragement necessary:
(i) to explore the full
extent of that culture, consistent with the child’s age and developmental level
and the child’s views; and
(ii) to develop a positive
appreciation of that culture.
60CD
How the views of a child are expressed
(1) Paragraph 60CC(3)(a) requires the court
to consider any views expressed by a child in deciding whether to make a
particular parenting order in relation to the child. This section deals with
how the court informs itself of views expressed by a child.
(2) The court may inform itself of views
expressed by a child:
(a) by having regard to anything
contained in a report given to the court under subsection 62G(2); or
(b) by making an order under
section 68L for the child’s interests in the proceedings to be
independently represented by a lawyer; or
(c) subject to the applicable Rules of
Court, by such other means as the court thinks appropriate.
Note 1: Paragraph (a)—subsection 62G(3A) generally
requires the person giving the report to ascertain the child’s views and include
those views in the report.
Note 2: Paragraph (b)—paragraph 68LA(5)(b)
requires the independent children’s lawyer for the child to ensure that the
child’s views are fully put before the court.
60CE
Children not required to express views
Nothing in this Part permits the court
or any person to require the child to express his or her views in relation to
any matter.
60CF
Informing court of relevant family violence orders
(1) If a party to the proceedings is aware
that a family violence order applies to the child, or a member of the child’s
family, that party must inform the court of the family violence order.
(2) If a
person who is not a party to the proceedings is aware that a family violence
order applies to the child, or a member of the child’s family, that person may
inform the court of the family violence order.
(3) Failure to inform the court of the family
violence order does not affect the validity of any order made by the court.
60CG
Court to consider risk of family violence
(1) In considering what order to make, the
court must, to the extent that it is possible to do so consistently with the
child’s best interests being the paramount consideration, ensure that the
order:
(a) is consistent with any family
violence order; and
(b) does not expose a person to an
unacceptable risk of family violence.
(2) For the purposes of
paragraph (1)(b), the court may include in the order any safeguards that
it considers necessary for the safety of those affected by the order.
10 Subsection 60G(2) (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
11 At the end of Division 1 of Part VII
Add:
Subdivision E—Family dispute resolution
60I
Attending family dispute resolution before applying for Part VII order
Object of this section
(1) The object of this section is to ensure
that all persons who have a dispute about matters that may be dealt with by an
order under this Part (a Part VII order) make a genuine
effort to resolve that dispute by family dispute resolution before the
Part VII order is applied for.
Phase 1 (from commencement to 30 June 2007)
(2) The dispute resolution provisions of the Family
Law Rules 2004 impose the requirements for dispute resolution that must be
complied with before an application is made to the Family Court of Australia
for a parenting order.
(3) By force of this subsection, the dispute
resolution provisions of the Family Law Rules 2004 also apply to an
application to a court (other than the Family Court of Australia) for a
parenting order. Those provisions apply to the application with such
modifications as are necessary.
(4) Subsection (3) applies to an
application for a parenting order if the application is made:
(a) on or after the commencement of
this section; and
(b) before 1 July 2007.
Phase 2 (from 1 July 2007 to first proclaimed
date)
(5) Subsections (7) to (12) apply to an
application for a Part VII order in relation to a child if:
(a) the application is made on or
after 1 July 2007 and before the date fixed by Proclamation for the
purposes of this paragraph; and
(b) none of the parties to the
proceedings on the application has applied, before 1 July 2007, for a
Part VII order in relation to the child.
Phase 3 (from second proclaimed date)
(6) Subsections (7) to (12) apply to all
applications for a Part VII order in relation to a child that are made on
or after the date fixed by Proclamation for the purposes of this subsection.
Requirement to attempt to resolve dispute by family
dispute resolution before applying for a parenting order
(7) Subject to subsection (9), a court
exercising jurisdiction under this Act must not hear an application for a
Part VII order in relation to a child unless the applicant files in the
court a certificate given to the applicant by a family dispute resolution
practitioner under subsection (8). The certificate must be filed with the
application for the Part VII order.
Certificate by family dispute resolution practitioner
(8) A family dispute resolution practitioner
may give one of these kinds of certificates to a person:
(a) a certificate to the effect that
the person did not attend family dispute resolution with the practitioner and
the other party or parties to the proceedings in relation to the issue or
issues that the order would deal with, but the person’s failure to do so was
due to the refusal, or the failure, of the other party or parties to the
proceedings to attend;
(aa) a certificate to the effect that
the person did not attend family dispute resolution with the practitioner and
the other party or parties to the proceedings in relation to the issue or
issues that the order would deal with, because the practitioner considers,
having regard to the matters prescribed by the regulations for the purposes of
this paragraph, that it would not be appropriate to conduct the proposed family
dispute resolution;
(b) a certificate to the effect that
the person attended family dispute resolution with the practitioner and the
other party or parties to the proceedings in relation to the issue or issues
that the order would deal with, and that all attendees made a genuine effort to
resolve the issue or issues;
(c) a certificate to the effect that
the person attended family dispute resolution with the practitioner and the
other party or parties to the proceedings in relation to the issue or issues
that the order would deal with, but that the person, the other party or another
of the parties did not make a genuine effort to resolve the issue or issues.
Note: When an applicant files one of these
certificates under subsection (7), the court may take the kind of
certificate into account in considering whether to make an order referring to
parties to family dispute resolution (see section 13C) and in determining
whether to award costs against a party (see section 117).
Exception
(9) Subsection (7) does not apply to an
application for a Part VII order in relation to a child if:
(a) the applicant is applying for the
order:
(i) to be made with the
consent of all the parties to the proceedings; or
(ii) in response to an
application that another party to the proceedings has made for a Part VII
order; or
(b) the court is satisfied that there
are reasonable grounds to believe that:
(i) there has been abuse
of the child by one of the parties to the proceedings; or
(ii) there would be a risk
of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family
violence by one of the parties to the proceedings; or
(iv) there is a risk of
family violence by one of the parties to the proceedings; or
(c) all the following conditions are
satisfied:
(i) the application is
made in relation to a particular issue;
(ii) a Part VII order
has been made in relation to that issue within the period of 12 months before
the application is made;
(iii) the application is
made in relation to a contravention of the order by a person;
(iv) the court is satisfied
that there are reasonable grounds to believe that the person has behaved in a
way that shows a serious disregard for his or her obligations under the order;
or
(d) the application is made in
circumstances of urgency; or
(e) one or more of the parties to the
proceedings is unable to participate effectively in family dispute resolution
(whether because of an incapacity of some kind, physical remoteness from dispute
resolution services or for some other reason); or
(f) other circumstances specified in
the regulations are satisfied.
Referral to family dispute resolution when exception
applies
(10) If:
(a) a person applies for a
Part VII order; and
(b) the person does not, before
applying for the order, attend family dispute resolution with a family dispute
resolution practitioner and the other party or parties to the proceedings in
relation to the issue or issues that the order would deal with; and
(c) subsection (7) does not apply
to the application because of subsection (9);
the court must consider making an order that the person
attend family dispute resolution with a family dispute resolution practitioner
and the other party or parties to the proceedings in relation to that issue or
those issues.
(11) The validity of:
(a) proceedings on an application for
a Part VII order; or
(b) any order made in those
proceedings;
is not affected by a failure to comply with
subsection (7) in relation to those proceedings.
(12) In this section:
dispute resolution provisions of the Family
Law Rules 2004 means:
(a) Rule 1.05 of those Rules; and
(b) Part 2 of Schedule 1 to
those Rules;
to the extent to which they deal with dispute resolution.
60J
Family dispute resolution not attended because of child abuse or family
violence
(1) If:
(a) subsections 60I(7) to (12) apply
to an application for a Part VII order (see subsections 60I(5) and (6));
and
(b) subsection 60I(7) does not apply
to the application because the court is satisfied that there are reasonable
grounds to believe that:
(i) there has been abuse
of the child by one of the parties to the proceedings; or
(ii) there has been family
violence by one of the parties to the proceedings;
a court must not hear the application unless the applicant
has indicated in writing that the applicant has received information from a
family counsellor or family dispute resolution practitioner about the services
and options (including alternatives to court action) available in circumstances
of abuse or violence.
(2) Subsection (1) does not apply if the
court is satisfied that there are reasonable grounds to believe that:
(a) there would be a risk of abuse of
the child if there were to be a delay in applying for the order; or
(b) there is a risk of family violence
by one of the parties to the proceedings.
(3) The validity of:
(a) proceedings on an application for
a Part VII order; or
(b) any order made in those
proceedings;
is not affected by a failure to comply with
subsection (1) in relation to those proceedings.
(4) If:
(a) the applicant indicates in writing
that the applicant has not received information about the services and options
(including alternatives to court action) available in circumstances of abuse or
violence; and
(b) subsection (2) does not
apply;
the principal executive officer of the court concerned
must ensure that the applicant is referred to a family counsellor or family
dispute resolution practitioner in order to obtain information about those
matters.
60K
Court to take prompt action in relation to allegations of child abuse or family
violence
(1) This section applies if:
(a) an application is made to a court
for a Part VII order in relation to a child; and
(b) a document is filed in the court,
on or after the commencement of this section, in relation to the proceedings
for the order; and
(c) the document alleges, as a
consideration that is relevant to whether the court should grant or refuse the
application, that:
(i) there has been abuse
of the child by one of the parties to the proceedings; or
(ii) there would be a risk
of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family
violence by one of the parties to the proceedings; or
(iv) there is a risk of
family violence by one of the parties to the proceedings; and
(d) the document is a document of the
kind prescribed by the applicable Rules of Court for the purposes of this
paragraph.
(2) The court must:
(a) consider what interim or
procedural orders (if any) should be made:
(i) to enable appropriate
evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child
or any of the parties to the proceedings; and
(b) make such orders of that kind as
the court considers appropriate; and
(c) deal with the issues raised by the
allegation as expeditiously as possible.
(2A) The court must take the action required by
paragraphs (2)(a) and (b):
(a) as soon as practicable after the
document is filed; and
(b) if it is appropriate having regard
to the circumstances of the case—within 8 weeks after the document is filed.
(3) Without limiting
subparagraph (2)(a)(i), the court must consider whether orders should be
made under section 69ZW to obtain reports from State and Territory
agencies in relation to the allegations.
(4) Without limiting
paragraph (2)(a)(ii), the court must consider whether orders should be
made, or an injunction granted, under section 68B.
(5) A failure to comply with a provision of
this section in relation to an application does not affect the validity of any
order made in the proceedings in relation to the application.
12 At the end of subsection 61C(1)
Add:
Note 1: This section states the legal position that
prevails in relation to parental responsibility to the extent to which it is
not displaced by a parenting order made by the court. See subsection (3)
of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption
to be applied by the court when making a parenting order. See section 61DA
for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child
may make a parenting plan that deals with the allocation of parental
responsibility for the child.
13 After section 61D
Insert:
61DA
Presumption of equal shared parental responsibility when making parenting
orders
(1) When making a parenting order in relation
to a child, the court must apply a presumption that it is in the best interests
of the child for the child’s parents to have equal shared parental
responsibility for the child.
Note: The presumption provided for in this
subsection is a presumption that relates solely to the allocation of parental
responsibility for a child as defined in section 61B. It does not provide
for a presumption about the amount of time the child spends with each of the
parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there
are reasonable grounds to believe that a parent of the child (or a person who
lives with a parent of the child) has engaged in:
(a) abuse of the child or another
child who, at the time, was a member of the parent’s family (or that other
person’s family); or
(b) family violence.
(3) When the court is making an interim
order, the presumption applies unless the court considers that it would not be
appropriate in the circumstances for the presumption to be applied when making
that order.
(4) The presumption may be rebutted by evidence
that satisfies the court that it would not be in the best interests of the
child for the child’s parents to have equal shared parental responsibility for
the child.
61DB
Application of presumption of equal shared parental responsibility after interim
parenting order made
If there is an interim parenting order
in relation to a child, the court must, in making a final parenting order in
relation to the child, disregard the allocation of parental responsibility made
in the interim order.
14 At the end of Division 2 of Part VII
Add:
61F
Application to Aboriginal or Torres Strait Islander children
In:
(a) applying this Part to the
circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons
who have exercised, or who may exercise, parental responsibility for such a
child;
the court must have regard to any kinship obligations, and
child‑rearing practices, of the child’s Aboriginal or Torres Strait
Islander culture.
15 After subsection 62G(3)
Insert:
(3A) A family consultant who is directed to give
the court a report on a matter under subsection (2) must:
(a) ascertain the views of the child
in relation to that matter; and
(b) include the views of the child on
that matter in the report.
Note: A person cannot require a child to express his
or her views in relation to any matter (see section 60CE).
(3B) Subsection (3A) does not apply if
complying with that subsection would be inappropriate because of:
(a) the child’s age or maturity; or
(b) some other special circumstance.
16 After paragraph 63C(1)(b)
Insert:
(ba) is signed by the parents of the
child; and
(bb) is dated; and
16A After subsection 63C(1)
Insert:
(1A) An agreement is not a parenting plan
for the purposes of this Act unless it is made free from any threat, duress or
coercion.
17 Subsection 63C(2)
Repeal the subsection, substitute:
(2) A parenting plan may deal with one or
more of the following:
(a) the person or persons with whom a
child is to live;
(b) the time a child is to spend with another
person or other persons;
(c) the allocation of parental
responsibility for a child;
(d) if 2 or more persons are to share
parental responsibility for a child—the form of consultations those persons are
to have with one another about decisions to be made in the exercise of that
responsibility;
(e) the communication a child is to
have with another person or other persons;
(f) maintenance of a child;
(g) the process to be used for
resolving disputes about the terms or operation of the plan;
(h) the process to be used for
changing the plan to take account of the changing needs or circumstances of the
child or the parties to the plan;
(i) any aspect of the care, welfare
or development of the child or any other aspect of parental responsibility for a
child.
Note: Paragraph (f)—if the Child Support
(Assessment) Act 1989 applies, provisions in a parenting plan dealing with
the maintenance of a child (as distinct from child support under that Act) are
unenforceable and of no effect unless the provisions in the plan are a child
support agreement (see section 63CAA and subsection 63G(5) of this Act).
(2A) The person referred to in
subsection (2) may be, or the persons referred to in that subsection may
include, either a parent of the child or a person other than the parent of the
child (including a grandparent or other relative of the child).
(2B) Without limiting paragraph (2)(c), the
plan may deal with the allocation of responsibility for making decisions about
major long‑term issues in relation to the child.
(2C) The communication referred to in
paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other
electronic means.
18 Section 63DA
Repeal the section, substitute:
63DA
Obligations of advisers
(1) If an adviser gives advice or assistance
to people in relation to parental responsibility for a child following the
breakdown of the relationship between those people, the adviser must:
(a) inform them that they could
consider entering into a parenting plan in relation to the child; and
(b) inform them about where they can
get further assistance to develop a parenting plan and the content of the plan.
(2) If an adviser gives advice to people in
connection with the making by those people of a parenting plan in relation to a
child, the adviser must:
(a) inform them that, if the child
spending equal time with each of them is:
(i) reasonably
practicable; and
(ii) in the best interests
of the child;
they could consider the option
of an arrangement of that kind; and
(b) inform them that, if the child
spending equal time with each of them is not reasonably practicable or is not
in the best interests of the child but the child spending substantial and
significant time with each of them is:
(i) reasonably
practicable; and
(ii) in the best interests
of the child;
they could consider the option
of an arrangement of that kind; and
(c) inform them that decisions made in
developing parenting plans should be made in the best interests of the child; and
(d) inform them of the matters that
may be dealt with in a parenting plan in accordance with subsection 63C(2); and
(e) inform them that, if there is a
parenting order in force in relation to the child, the order may (because of
section 64D) include a provision that the order is subject to a parenting
plan they enter into; and
(f) inform them about the
desirability of including in the plan:
(i) if they are to share
parental responsibility for the child under the plan—provisions of the kind
referred to in paragraph 63C(2)(d) (which deals with the form of consultations
between the parties to the plan) as a way of avoiding future conflicts over, or
misunderstandings about, the matters covered by that paragraph; and
(ii) provisions of the kind
referred to in paragraph 63C(2)(g) (which deals with the process for resolving
disputes between the parties to the plan); and
(iii) provisions of the kind
referred to in paragraph 63C(2)(h) (which deals with the process for changing
the plan to take account of the changing needs or circumstances of the child or
the parties to the plan); and
(g) explain to them, in language they
are likely to readily understand, the availability of programs to help people
who experience difficulties in complying with a parenting plan; and
(h) inform them that
section 65DAB requires the court to have regard to the terms of the most
recent parenting plan in relation to the child when making a parenting order in
relation to the child if it is in the best interests of the child to do so.
Note: Paragraphs (a) and (b) only require the
adviser to inform the people that they could consider the option of the child
spending equal time, or substantial and significant time, with each of them.
The adviser may, but is not obliged to, advise them as to whether that option
would be appropriate in their particular circumstances.
(3) For the purposes of
paragraph (2)(b), a child will be taken to spend substantial and
significant time with a parent only if:
(a) the time the child spends with the
parent includes both:
(i) days that fall on
weekends and holidays; and
(ii) days that do not fall
on weekends or holidays; and
(b) the time the child spends with the
parent allows the parent to be involved in:
(i) the child’s daily
routine; and
(ii) occasions and events
that are of particular significance to the child; and
(c) the time the child spends with the
parent allows the child to be involved in occasions and events that are of
special significance to the parent.
(4) Subsection (3) does not limit the
other matters to which regard may be had in determining whether the time a
child spends with a parent would be substantial and significant.
(5) In this section:
adviser means a person who is:
(a) a legal practitioner; or
(b) a family counsellor; or
(c) a family dispute resolution
practitioner; or
(d) a family consultant.
19 Paragraph 63E(3)(b)
Omit “subsection 68F(2)”, substitute “subsections 60CC(2) and
(3)”.
20 Subsection 63F(6) (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
21 Subsection 63H(2) (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
22 Subsections 64B(2) to (4)
Repeal the subsections, substitute:
(2) A parenting order may deal with one or
more of the following:
(a) the person or persons with whom a
child is to live;
(b) the time a child is to spend with
another person or other persons;
(c) the allocation of parental
responsibility for a child;
(d) if 2 or more persons are to share
parental responsibility for a child—the form of consultations those persons are
to have with one another about decisions to be made in the exercise of that
responsibility;
(e) the communication a child is to
have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an
application is made to a court for a variation of the order to take account of
the changing needs or circumstances of:
(i) a child to whom the
order relates; or
(ii) the parties to the
proceedings in which the order is made;
(h) the process to be used for
resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare
or development of the child or any other aspect of parental responsibility for
a child.
The person referred to in this subsection may be, or the
persons referred to in this subsection may include, either a parent of the
child or a person other than the parent of the child (including a grandparent
or other relative of the child).
Note: Paragraph (f)—a parenting order cannot
deal with the maintenance of a child if the Child Support (Assessment) Act
1989 applies.
(3) Without limiting paragraph (2)(c),
the order may deal with the allocation of responsibility for making decisions
about major long‑term issues in relation to the child.
(4) The communication referred to in
paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other
electronic means.
(4A) Without limiting paragraphs (2)(g) and
(h), the parenting order may provide that the parties to the proceedings must
consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the
terms or operation of the order; or
(b) reaching agreement about changes
to be made to the order.
23 Subsection 64B(5)
Omit “(c)”, substitute “(f)”.
24 Subsections 64B(6) to (8)
Repeal the subsections, substitute:
(6) For the purposes of this Act:
(a) a parenting order that provides
that a child is to live with a person is made in favour of that
person; and
(b) a parenting order that provides
that a child is to spend time with a person is made in favour of
that person; and
(c) a parenting order that provides
that a child is to have communication with a person is made in
favour of that person; and
(d) a parenting order that:
(i) allocates parental
responsibility for a child to a person; or
(ii) provides that a person
is to share parental responsibility for a child with another person;
is made in
favour of that person.
25 At the end of Division 5 of Part VII
Add:
64D
Parenting orders subject to later parenting plans
(1) Subject to subsection (2), a
parenting order in relation to a child is taken to include a provision that the
order is subject to a parenting plan that is:
(a) entered into subsequently by the
child’s parents; and
(b) agreed to, in writing, by any
other person (other than the child) to whom the parenting order applies.
(2) The court may, in exceptional
circumstances, include in a parenting order a provision that the parenting
order, or a specified provision of the parenting order, may only be varied by a
subsequent order of the court (and not by a parenting plan).
(3) Without limiting subsection (2),
exceptional circumstances for the purposes of that subsection include the
following:
(a) circumstances that give rise to a
need to protect the child from physical or psychological harm from being
subjected to, or exposed to, abuse, neglect or family violence;
(b) the existence of substantial
evidence that one of the child’s parents is likely to seek to use coercion or
duress to gain the agreement of the other parent to a parenting plan.
26 Section 65A
Before “This”, insert “(1)”.
27 At the end of section 65A
Add:
Note: Paragraph (a)—section 60I provides
that people with disputes about matters that may be dealt with in a
Part VII order (which includes a parenting order) should generally make
use of family dispute resolution before applying for the order.
(2) Measures designed to improve
communication between separated parents and to educate parents about their
respective responsibilities in relation to their children are contained in this
Division (see section 65DA).
Note: Division 13A provides for the compliance
regime for dealing with contraventions, and alleged contraventions, of
parenting orders.
28 Section 65AA
Repeal the section, substitute:
65AA
Child’s best interests paramount consideration in making a parenting order
Section 60CA provides that in
deciding whether to make a particular parenting order in relation to a child, a
court must regard the best interests of the child as the paramount
consideration.
29 Subsection 65D(1)
After “subject to”, insert “sections 61DA (presumption of
equal shared parental responsibility when making parenting orders) and 65DAB
(parenting plans) and”.
30 Subsection 65D(2)
After “subject to”, insert “section 61DA (presumption of
equal shared parental responsibility when making parenting orders) and 65DAB
(parenting plans) and”.
31 After section 65D
Insert:
65DAA
Court to consider child spending equal time or substantial and significant time
with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to
provide) that a child’s parents are to have equal shared parental
responsibility for the child, the court must:
(a) consider whether the child
spending equal time with each of the parents would be in the best interests of
the child; and
(b) consider whether the child
spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order
to provide (or including a provision in the order) for the child to spend equal
time with each of the parents.
Note 1: The effect of section 60CA is that in
deciding whether to go on to make a parenting order for the child to spend
equal time with each of the parents, the court will regard the best interests
of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the
court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is
to provide) that a child’s parents are to have equal shared parental
responsibility for the child; and
(b) the court does not make an order
(or include a provision in the order) for the child to spend equal time with
each of the parents; and
the court must:
(c) consider whether the child
spending substantial and significant time with each of the parents would be in
the best interests of the child; and
(d) consider whether the child
spending substantial and significant time with each of the parents is
reasonably practicable; and
(e) if it is, consider making an order
to provide (or including a provision in the order) for the child to spend
substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in
deciding whether to go on to make a parenting order for the child to spend
substantial time with each of the parents, the court will regard the best
interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the
court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2),
a child will be taken to spend substantial and significant time
with a parent only if:
(a) the time the child spends with the
parent includes both:
(i) days that fall on
weekends and holidays; and
(ii) days that do not fall
on weekends or holidays; and
(b) the time the child spends with the
parent allows the parent to be involved in:
(i) the child’s daily routine;
and
(ii) occasions and events
that are of particular significance to the child; and
(c) the time the child spends with the
parent allows the child to be involved in occasions and events that are of
special significance to the parent.
(4) Subsection (3) does not limit the
other matters to which a court can have regard in determining whether the time
a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of
subsections (1) and (2) whether it is reasonably practicable for a child
to spend equal time, or substantial and significant time, with each of the
child’s parents, the court must have regard to:
(a) how far apart the parents live
from each other; and
(b) the parents’ current and future
capacity to implement an arrangement for the child spending equal time, or
substantial and significant time, with each of the parents; and
(c) the parents’ current and future
capacity to communicate with each other and resolve difficulties that might
arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of
that kind would have on the child; and
(e) such other matters as the court
considers relevant.
Note 1: Behaviour of a parent that is relevant for
paragraph (c) may also be taken into account in determining what parenting
order the court should make in the best interests of the child. Subsection
60CC(3) provides for considerations that are taken into account in determining
what is in the best interests of the child. These include:
(a) the willingness and ability of each of the
child’s parents to facilitate, and encourage, a close and continuing
relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the
responsibilities of parenthood, demonstrated by each of the child’s parents
(paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future
capacity—the court has power under section 13C to make orders for parties
to attend family counselling or family dispute resolution or participate in
courses, programs or services.
65DAB
Court to have regard to parenting plans
When making a parenting order in
relation to a child, the court is to have regard to the terms of the most
recent parenting plan (if any) that has been entered into between the child’s
parents (to the extent to which that plan relates to the child) if doing so
would be in the best interests of the child.
65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a
parenting order:
(a) 2 or more persons are to share
parental responsibility for a child; and
(b) the exercise of that parental
responsibility involves making a decision about a major long‑term issue
in relation to the child.
(2) The order is taken to require the
decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about
issues that are not major long‑term issues are made by the person with
whom the child is spending time without a need to consult the other person (see
section 65DAE).
(3) The order is taken to require each of
those persons:
(a) to consult the other person in
relation to the decision to be made about that issue; and
(b) to make a genuine effort to come
to a joint decision about that issue.
(4) To avoid doubt, this section does not
require any other person to establish, before acting on a decision about the
child communicated by one of those persons, that the decision has been made
jointly.
65DAE
No need to consult on issues that are not major long‑term issues
(1) If a child is spending time with a person
at a particular time under a parenting order, the order is taken not to require
the person to consult a person who:
(a) has parental responsibility for
the child; or
(b) shares parental responsibility for
the child with another person;
about decisions that are made in relation to the child
during that time on issues that are not major‑long term issues.
Note: This will mean that the person with whom the
child is spending time will usually not need to consult on decisions about such
things as what the child eats or wears because these are usually not major long‑term
issues.
(2) Subsection (1) applies subject to
any provision to the contrary made by a parenting order.
32 Section 65E
Repeal the section.
33 Paragraph 65G(2)(a)
Repeal the paragraph, substitute:
(a) the parties to the proceedings
have attended a conference with a family consultant to discuss the matter to be
determined by the proposed order; or
34 Subsection 65L(2) (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
35 Subsection 65LA(2) (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
36 Section 67L (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
37 Section 67V (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
38 Subsection 67ZC(2) (note)
Omit “Division 10 deals”, substitute “Sections 60CB to
60CG deal”.
39 Subsection 69ZH(2)
After “subsection,”, insert “Subdivision BA of Division 1,”.
40 Subsection 117(1)
After “sections 117AA”, insert “, 117AB”.
41 After section 117AA
Insert:
117AB
Costs where false allegation or statement made
(1) This section applies if:
(a) proceedings under this Act are
brought before a court; and
(b) the court is satisfied that a
party to the proceedings knowingly made a false allegation or statement in the
proceedings.
(2) The court must order that party to pay
some or all of the costs of another party, or other parties, to the
proceedings.
Part 2—Application of amendments
42 Definitions
In this Part:
commencement means the commencement of this
Schedule.
new Act means the Family Law Act 1975 as in
force after commencement.
old Act means the Family Law Act 1975 as in
force immediately before commencement.
43 Application
(1) Section 60CC of the new Act applies to orders
made on or after commencement.
(2) The amendments made by items 13, 29 and 30 of
this Schedule apply to parenting orders made on or after commencement.
(3) The amendment made by item 14 of this Schedule
applies to proceedings under Part VII, whether or not the proceedings were
initiated before commencement.
(4) The amendment made by item 15 of this Schedule
applies to directions given under subsection 62G(2) of the new Act on or after
commencement.
(5) The amendments made by items 16 and 16A of
this Schedule apply to parenting plans made on or after commencement.
(6) The amendment made by item 22 of this Schedule
applies to parenting orders made on or after commencement.
(7) The amendment made by item 25 of this Schedule
applies to parenting orders made on or after commencement. This includes,
without limitation, a parenting order that varies an earlier parenting order,
whether the earlier parenting order was made before or after commencement.
(8) Sections 65DAA, 65DAB, 65DAC and 65DAE of the
new Act apply to parenting orders made on or after commencement.
(9) The amendment made by item 33 of this Schedule
applies to a court proposing to make an order mentioned in subsection 65G(1) of
the new Act, whether or not the proceedings to which the order relates were
initiated before commencement.
44 Grounds for discharging or varying parenting orders
The amendments made by this Schedule are taken not to constitute
changed circumstances that would justify making an order to discharge or vary,
or to suspend or revive the operation of, some or all of a parenting order that
was made before commencement.
Note: For the need for changed circumstances, see Rice
and Asplund (1979) FLC 90‑725.
Schedule 2—Compliance regime
Part 1—Amendments
Family Law Act 1975
1 Section 60C (table item 6)
Omit “—stage 1 of parenting compliance regime”.
2 Section 60C (table item 13A)
Omit “—stage 2 of parenting compliance regime”.
3 Section 60C (table item 13A)
Omit “—stage 3 of parenting compliance regime”.
4 Subsection 65D(3)
Omit “paragraph 70NG(1)(c) of proceedings under Subdivision B”,
substitute “paragraph 70NEB(1)(c) of proceedings under Subdivision E”.
5 Subsection 65D(3) (note)
Omit “Subdivision B”, substitute “Subdivision E”.
Note: The heading to section 65DA is altered by
omitting “: stage 1 of parenting compliance regime”.
6 Division 13A of Part VII
Repeal the Division, substitute:
Division 13A—Consequences of failure to comply with orders, and other
obligations, that affect children
Subdivision A—Preliminary
70NAA
Simplified outline of Division
(1) This Division deals with the powers that
a court with jurisdiction under this Act has to make orders to enforce
compliance with orders under this Act affecting children.
(2) The court always has the power to vary
the order under Subdivision B. In doing so, the court will have regard to any
parenting plan that has been entered into since the order was made (see
section 70NBB).
(3) The other orders that the court can make
depend on whether:
(a) a contravention is alleged to have
occurred but is not established (Subdivision C); or
(b) the court finds that a
contravention has occurred but there is a reasonable excuse for the
contravention (Subdivision D); or
(c) the court finds that there was a
contravention and there is no reasonable excuse for the contravention
(Subdivision E for less serious contraventions and Subdivision F for more
serious contraventions).
70NAB
Application of Division
Despite anything contained in any other
provision of this Division, this Division does not apply in respect of a
contravention, committed before this Division commences, of an order under this
Act affecting children if a court made an order, in respect of that
contravention before this Division commences, under this Act as previously in
force.
70NAC
Meaning of contravened an order
A person is taken for the purposes of
this Division to have contravened an order under this Act
affecting children if, and only if:
(a) where the person is bound by the
order—he or she has:
(i) intentionally failed
to comply with the order; or
(ii) made no reasonable
attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally
prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a
contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any
subsequent parenting plan (see section 64D). This means that an action that
would otherwise contravene a parenting order may not be a contravention,
because of a subsequent inconsistent parenting plan. Whether this is the case
or not depends on the terms of the parenting order.
70NAD
Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with
whom a child is to live with is taken to include a requirement that people act
in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with
whom a child is to spend time with is taken to include a requirement that
people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with
whom a child is to communicate with is taken to include a requirement that
people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which
section 65P applies is taken to include a requirement that people act in
accordance with that section in relation to the order.
70NAE
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may
be taken to have had, for the purposes of this Division, a reasonable
excuse for contravening an order under this Act affecting children
include, but are not limited to, the circumstances set out in
subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent)
is taken to have had a reasonable excuse for contravening an
order under this Act affecting children if:
(a) the respondent contravened the
order because, or substantially because, he or she did not, at the time of the
contravention, understand the obligations imposed by the order on the person
who was bound by it; and
(b) the court is satisfied that the
respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a
reasonable excuse for contravening an order under this Act for the reason
referred to in paragraph (2)(a), it is the duty of the court to explain to
the person, in language likely to be readily understood by the person, the
obligations imposed on him or her by the order and the consequences that may
follow if he or she again contravenes the order.
(4) A person (the respondent)
is taken to have had a reasonable excuse for contravening a parenting order to
the extent to which it deals with whom a child is to live with in a way that
resulted in the child not living with a person in whose favour the order was
made if:
(a) the respondent believed on
reasonable grounds that the actions constituting the contravention were
necessary to protect the health or safety of a person (including the respondent
or the child); and
(b) the period during which, because
of the contravention, the child did not live with the person in whose favour
the order was made was not longer than was necessary to protect the health or
safety of the person referred to in paragraph (a).
(5) A person (the respondent)
is taken to have had a reasonable excuse for contravening a parenting order to
the extent to which it deals with whom a child is to spend time with in a way
that resulted in a person and a child not spending time together as provided
for in the order if:
(a) the respondent believed on
reasonable grounds that not allowing the child and the person to spend time
together was necessary to protect the health or safety of a person (including
the respondent or the child); and
(b) the period during which, because
of the contravention, the child and the person did not spend time together was
not longer than was necessary to protect the health or safety of the person
referred to in paragraph (a).
(6) A person (the respondent)
is taken to have had a reasonable excuse for contravening a parenting order to
the extent to which it deals with whom a child is to communicate with in a way
that resulted in a person and a child not having the communication provided for
under the order if:
(a) the respondent believed on
reasonable grounds that not allowing the child and the person to communicate
together was necessary to protect the health or safety of a person (including
the respondent or the child); and
(b) the period during which, because
of the contravention, the child and the person did not communicate was not
longer than was necessary to protect the health or safety of the person referred
to in paragraph (a).
(7) A person (the respondent)
is taken to have had a reasonable excuse for contravening a parenting order to
which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on
reasonable grounds that the action constituting the contravention was necessary
to protect the health or safety of a person (including the respondent or the
child); and
(b) the period during which, because
of that action, a person in whose favour the order was made was hindered in or
prevented from discharging responsibilities under the order was not for longer
than was necessary to protect the health or safety of the person referred to in
paragraph (a).
70NAF
Standard of proof
(1) Subject to subsection (3), the
standard of proof to be applied in determining matters in proceedings under
this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1),
that subsection applies to the determination of whether a person who
contravened an order under this Act affecting children had a reasonable excuse
for the contravention.
(3) The court may only make an order under:
(a) paragraph 70NFB(2)(a), (d) or (e);
or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the
grounds for making the order exist.
Subdivision B—Court’s power to vary parenting order
70NBA
Variation of parenting order
(1) A court having jurisdiction under this
Act may make an order varying a primary order if:
(a) proceedings in relation to the
primary order are brought before a court having jurisdiction under this Act;
and
(b) it is alleged in those proceedings
that a person committed a contravention of the primary order and either:
(i) the court does not
find that the person committed a contravention of the primary order; or
(ii) the court finds that
the person committed a contravention of the primary order.
(2) If
Subdivision F applies to the contravention, when making an order under
subsection (1) varying a primary order, the court, in addition to regarding,
under section 60CA, the best interests of the child as the paramount
consideration, must, if any of the following considerations is relevant, take
that consideration into account:
(a) the person who contravened the
primary order did so after having attended, after having refused or failed to
attend, or after having been found to be unsuitable to take any further part
in, a post‑separation parenting program or a part of such a program;
(b) there was no post‑separation
parenting program that the person who contravened the primary order could
attend;
(c) because of the behaviour of the
person who contravened the primary order, it was not appropriate, in the
court’s opinion, for the person to attend a post‑separation parenting
program, or a part of such a program;
(d) the primary order was a
compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c)
after the person had contravened a previous order under this Act affecting
children.
(3) This section does not limit the
circumstances in which a court having jurisdiction under this Act may vary a
primary order.
70NBB
Effect of parenting plan
(1) This section applies if:
(a) a parenting order has been made in
relation to a child (whether before or after the commencement of this section);
and
(b) after the parenting order was
made, the parents of the child made a parenting plan that dealt with a matter
(the relevant matter) that was dealt with in the parenting order.
(2) If:
(a) section 70NBA applies to
proceedings brought in relation to the parenting order in relation to the
relevant matter; and
(b) the parenting plan was in force
when the contravention of the parenting order:
(i) is alleged to have
been committed; or
(ii) occurred;
the court must, in exercising its powers under section 70NBA:
(c) have regard to the terms of the
parenting plan; and
(d) consider whether to exercise its
powers under section 70NBA to make an order varying the parenting order to
include (with or without modification) some or all of the provisions of the
parenting plan.
Note: An action that would otherwise contravene a
parenting order may not be a contravention because of a subsequent inconsistent
parenting plan. Whether this is the case or not depends on the terms of the
parenting order (see section 64D).
Subdivision C—Contravention alleged but not established
70NCA
Application of Subdivision
This Subdivision applies if:
(a) a primary order has been made,
whether before or after the commencement of this Subdivision; and
(b) proceedings in relation to the
primary order are brought before a court having jurisdiction under this Act;
and
(c) it is alleged in those proceedings
that a person (the respondent) committed a contravention of the
primary order; and
(d) the court does not find that the
respondent committed a contravention of the primary order.
Note: The court may also vary the primary order
under Subdivision B.
70NCB
Costs
(1) The court may make an order that the
person who brought the proceedings (the applicant) pay some or
all of the costs of another party, or other parties, to the proceedings.
(2) The court must consider making an order
under subsection (1) if:
(a) the applicant has previously
brought proceedings in relation to the primary order or another primary order
in which the applicant alleged that the respondent committed a contravention of
the primary order or that other primary order; and
(b) on the most recent occasion on
which the applicant brought proceedings of the kind referred to in
paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that
the respondent had committed a contravention of the primary order or that other
primary order; or
(ii) was satisfied that the
respondent had committed a contravention of the primary order or that other
primary order but did not make an order under section 70NBA, 70NDB, 70NDC,
70NEB or 70NFB in relation to the contravention.
Subdivision D—Contravention established but reasonable excuse for
contravention
70NDA
Application of Subdivision
This
Subdivision applies if:
(a) a primary order has been made,
whether before or after the commencement of this Subdivision; and
(b) a court having jurisdiction under
this Act is satisfied that a person (the respondent) has, whether
before or after the commencement, committed a contravention (the current
contravention) of the primary order; and
(c) the respondent proves that he or
she had a reasonable excuse for the current contravention.
Note: The court may also vary the primary order
under Subdivision B.
70NDB Order
compensating person for time lost
(1) If:
(a) the primary order is a parenting
order in relation to a child; and
(b) the current contravention resulted
in a person not spending time with the child (or the child not living with a
person for a particular period);
the court:
(c) may make a further parenting order
that compensates the person for time the person did not spend with the child
(or the time the child did not live with the person) as a result of the current
contravention; and
(d) must consider making that kind of
order.
Note: If the person does not have a reasonable
excuse for a contravention, the court has the power to make an order
compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).
(2) The court must not make an order under
paragraph (1)(c) if it would not be in the best interests of the child for
the court to do so.
70NDC
Costs
(1) If the court does not make an order under
section 70NDB in relation to the current contravention, the court may make
an order that the person who brought the proceedings (the applicant)
pay some or all of the costs of another party, or other parties, to the
proceedings.
(2) The court must consider making an order
under subsection (1) if:
(a) the applicant has previously
brought proceedings in relation to the primary order or another primary order
in which the applicant alleged that the respondent committed a contravention of
the primary order or that other primary order; and
(b) on the most recent occasion on
which the applicant brought proceedings of the kind referred to in
paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that
the respondent had committed a contravention of the primary order or that other
primary order; or
(ii) was satisfied that the
respondent had committed a contravention of the primary order or that other
primary order but did not make an order under section 70NBA, 70NDB, 70NEB
or 70NFB in relation to the contravention.
Subdivision E—Contravention without reasonable excuse (less serious
contravention)
70NEA
Application of Subdivision
(1) Subject to
subsection (4), this Subdivision applies if:
(a) a primary order has been made,
whether before or after the commencement of this Division; and
(b) a court having jurisdiction under
this Act is satisfied that a person has, whether before or after that
commencement, committed a contravention (the current contravention)
of the primary order; and
(c) the person does not prove that he
or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3)
applies;
and, if the primary order is an order for the maintenance
of a child, this Subdivision applies irrespective of the period since the
current contravention occurred.
(2) For the purposes of
paragraph (1)(d), this subsection applies if no court has previously:
(a) made an order imposing a sanction
or taking an action in respect of a contravention by the person of the primary
order; or
(b) under paragraph 70NEB(1)(c),
adjourned proceedings in respect of a contravention by the person of the
primary order.
(3) For the purposes of
paragraph (1)(d), this subsection applies if:
(a) a court has previously:
(i) made an order imposing
a sanction or taking an action in respect of a contravention by the person of
the primary order; or
(ii) under paragraph
70NEB(1)(c), adjourned proceedings in respect of a contravention by the person
of the primary order; and
(b) the court, in dealing with the
current contravention, is satisfied that it is more appropriate for that
contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in
circumstances mentioned in subsection (2), the court dealing with the
current contravention is satisfied that the person who contravened the primary
order has behaved in a way that showed a serious disregard for his or her
obligations under the primary order.
70NEB
Powers of court
(1) If this Subdivision applies, the court
may do any or all of the following:
(a) make an order directing:
(i) the person who
committed the current contravention; or
(ii) that person and
another specified person;
to attend a post‑separation
parenting program;
(b) if the current contravention is a
contravention of a parenting order in relation to a child—make a further
parenting order that compensates a person for time the person did not spend
with the child (or time the child did not live with the person) as a result of
the current contravention;
(c) adjourn the proceedings to allow
either or both of the parties to the primary order to apply for a further
parenting order under Division 6 of Part VII that discharges, varies
or suspends the primary order or revives some or all of an earlier parenting
order;
(d) make an order requiring the person
who committed the current contravention to enter into a bond in accordance with
section 70NEC;
(e) if:
(i) the current
contravention is a contravention of a parenting order in relation to a child;
and
(ii) the current
contravention resulted in a person not spending time with the child (or the
child not living with a person for a particular period); and
(iii) the person referred to
in subparagraph (ii) reasonably incurs expenses as a result of the
contravention;
make an order requiring the
person who committed the current contravention to compensate the person
referred to in subparagraph (ii) for some or all of the expenses referred
to in subparagraph (iii);
(f) make an order that the person who
committed the current contravention pay some or all of the costs of another
party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders
in relation to the current contravention—order that the person who brought the
proceedings in relation to the current contravention pay some or all of the
costs of the person who committed the current contravention.
Note 1: The court may also vary the primary order under
Subdivision B.
Note 2: Paragraph (1)(a)—before making an order
under this paragraph, the court must consider seeking the advice of a family
consultant about the services appropriate to the person’s needs (see
section 11E).
(2) The court must not make an order under
paragraph (1)(a) directed to a person other than the person who committed
the current contravention unless:
(a) the person brought the proceedings
before the court in relation to the current contravention or is otherwise a
party to those proceedings; and
(b) the court is satisfied that it is
appropriate to direct the order to the person because of the connection between
the current contravention and the carrying out by the person of his or her
parental responsibilities in relation to the child or children to whom the
primary order relates.
(3) If the court makes an order under
paragraph (1)(a), the principal executive officer of the court must ensure
that the provider of the program concerned is notified of the making of the
order.
(4) If:
(a) the current contravention is a
contravention of a parenting order in relation to a child; and
(b) the contravention resulted in a
person not spending time with the child (or the child not living with a person
for a particular period);
the court must consider making an order under
paragraph (1)(b) to compensate the person for the time the person did not
spend with the child (or the time the child did not live with the person) as a
result of the contravention.
(5) The court must not make an order under
paragraph (1)(b) if it would not be in the best interests of the child for
the court to do so.
(6) In deciding whether to adjourn the
proceedings as mentioned in paragraph (1)(c), the court must have regard
to the following:
(a) whether the primary order was made
by consent;
(b) whether either or both of the
parties to the proceedings in which the primary order was made were represented
in those proceedings by a legal practitioner;
(c) the length of the period between
the making of the primary order and the occurrence of the current
contravention;
(d) any other matters that the court
thinks relevant.
(7) The court must consider making an order
under paragraph (1)(g) if:
(a) the person (the applicant)
who brought the proceedings in relation to the current contravention has
previously brought proceedings in relation to the primary order or another
primary order in which the applicant alleged that the person (the respondent)
who committed the current contravention committed a contravention of the
primary order or that other primary order; and
(b) on the most recent occasion on
which the applicant brought proceedings of the kind referred to in
paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that
the respondent had committed a contravention of the primary order or that other
primary order; or
(ii) was satisfied that the
respondent had committed a contravention of the primary order or that other
primary order but did not make an order under section 70NDB, 70NDC, 70NEB,
70NFB or 70NBA in relation to the contravention.
70NEC
Bonds
(1) This section provides for bonds that a
court may require a person to enter into under paragraph 70NEB(1)(d).
(2) A bond is to be for a specified period of
up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a
person by a bond include (without limitation) conditions that require the
person:
(a) to attend an appointment (or a
series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute
resolution; or
(d) to be of good behaviour.
(5) If a court proposes to require a person
to enter into a bond, it must, before making the requirement, explain to the
person, in language likely to be readily understood by the person:
(a) the purpose and effect of the
proposed requirement; and
(b) the consequences that may follow
if the person:
(i) fails to enter into
the bond; or
(ii) having entered into
the bond—fails to act in accordance with the bond.
70NED
Duties of provider of post‑separation parenting program
The provider of a post‑separation
parenting program must inform the court if:
(a) the provider considers that a
person ordered to attend the program under paragraph 70NEB(1)(a) is unsuitable
to attend the program, or to continue attending the program; or
(b) a person ordered to attend the
program under paragraph 70NEB(1)(a) fails to attend the program, or a part of
it.
70NEF
Evidence
(1) Evidence of anything said, or of any
admission made, by a person attending a post‑separation parenting program
is not admissible:
(a) in any court (whether exercising
federal jurisdiction or not); or
(b) in any proceedings before a person
authorised by a law of the Commonwealth, of a State or of a Territory, or by
the consent of the parties, to hear evidence.
(2) Subsection (1) does not apply to the
following:
(a) an admission by an adult that
indicates that a child under 18 has been abused or is at risk of abuse;
(b) a disclosure by a child under 18
that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient
evidence of the admission or disclosure available to the court from other
sources.
70NEG
Court may make further orders in relation to attendance at program
The court may make such orders as it
considers appropriate, other than the orders referred to in subsection
70NFB(2), in respect of a person, if:
(a) it appears to the court that the
person has not attended a post‑separation parenting program that the
person was ordered to attend; or
(b) the person was assessed as
unsuitable to attend a program.
Subdivision F—Contravention without reasonable excuse (more serious
contravention)
70NFA
Application of Subdivision
(1) Subject to subsection (2), this
Subdivision applies if:
(a) a primary order has been made, whether
before or after the commencement of this Division; and
(b) a court having jurisdiction under
this Act is satisfied that a person has, whether before or after that
commencement, committed a contravention (the current contravention)
of the primary order; and
(c) the person does not prove that he
or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3)
applies.
Note: For the standard of proof to be applied in
determining whether a contravention of the primary order has been committed,
see section 70NAF.
(2) For the purposes of
paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i) made an order imposing
a sanction or taking an action in respect of a contravention by the person of
the primary order; or
(ii) under paragraph
70NEB(1)(c), adjourned proceedings in respect of a contravention by the person
of the primary order; and
(b) the court dealing with the current
contravention is satisfied that the person has behaved in a way that showed a
serious disregard of his or her obligations under the primary order.
(3) For the purposes of
paragraph (1)(d), this subsection applies if a court has previously:
(a) made an order imposing a sanction
or taking an action in respect of a contravention by the person of the primary
order; or
(b) under paragraph 70NEB(1)(c),
adjourned proceedings in respect of a contravention by the person of the
primary order.
(4) This Subdivision does not apply if the
court dealing with the current contravention is satisfied that it is more
appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the
primary order was made, and whether the current contravention occurred, before
or after the commencement of this Division.
70NFB
Powers of court
(1) If this Subdivision applies, the court
must, in relation to the person who committed the current contravention:
(a) make an order under
paragraph (2)(g), unless the court is satisfied that it would not be in
the best interests of the child concerned to make that order; and
(b) if the court makes an order under
paragraph (2)(g)—consider making another order (or other orders) under
subsection (2) that the court considers to be the most appropriate of the
orders under subsection (2) in the circumstances; and
(c) if the court does not make an
order under paragraph (2)(g)—make at least one order under
subsection (2), being the order (or orders) that the court considers to be
the most appropriate of the orders under subsection (2) in the
circumstances.
(2) The orders that are available to be made
by the court are:
(a) if the court is empowered under
section 70NFC to make a community service order—to make such an order; or
(b) to make an order requiring the
person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a
contravention of a parenting order in relation to a child—to make a further
parenting order that compensates a person for time the person did not spend
with the child (or the time the child did not live with the person) as a result
of the current contravention, unless it would not be in the best interests of
the child concerned to make that order; or
(d) to fine the person not more than
60 penalty units; or
(e) subject to subsection (7), to
impose a sentence of imprisonment on the person in accordance with
section 70NFG; or
(f) if:
(i) the current
contravention is a contravention of a parenting order in relation to a child;
and
(ii) the current
contravention resulted in a person not spending time with the child (or the
child not living with a person for a particular period); and
(iii) the person referred to
in subparagraph (ii) reasonably incurs expenses as a result of the
contravention;
to make an order requiring the
person who committed the current contravention to compensate the person
referred to in subparagraph (ii) for some or all of the expenses referred
to in subparagraph (iii); or
(g) to make an order that the person
who committed the current contravention pay all of the costs of another party,
or other parties, to the proceedings under this Division; or
(h) to make an order that the person
who committed the current contravention pay some of the costs of another party,
or other parties, to the proceedings under this Division.
Note: The court may also vary the primary order
under Subdivision B.
(3) If a court varies or discharges under
section 70NFD a community service order made under paragraph (2)(a),
the court may give any directions as to the effect of the variation or
discharge that the court considers appropriate.
(4) The court must not make an order imposing
a sentence of imprisonment on a person under this section in respect of a
contravention of a child maintenance order made under this Act unless the court
is satisfied that the contravention was intentional or fraudulent.
(5) The court must not make an order imposing
a sentence of imprisonment on a person under this section in respect of:
(a) a contravention of an
administrative assessment of child support made under the Child Support
(Assessment) Act 1989; or
(b) a breach of a child support
agreement made under that Act; or
(c) a
contravention of an order made by a court under Division 4 of Part 7
of that Act for a departure from such an assessment (including such an order
that contains matters mentioned in section 141 of that Act).
(6) An order under this section may be
expressed to take effect immediately, at the end of a specified period or on
the occurrence of a specified event.
(7) When a court makes an order under this
section, the court may make any other orders that the court considers necessary
to ensure compliance with the order that was contravened.
70NFC
When court is empowered to make a community service order
(1) Subject to this section, if, under the
law of a participating State or a participating Territory, a court is empowered
(whether generally or in particular cases) to make a community service order in
respect of a person convicted of an offence against the law of the State or
Territory, a court exercising jurisdiction in the State or Territory may, under
paragraph 70NFB(2)(a) make a community service order.
(2) A community service order made under
paragraph 70NFB(2)(a):
(a) is to be such that the total
number of hours during which the order regulates the conduct of the person in
respect of whom it is made does not exceed the maximum period in relation to
the State or Territory in which the order is made; and
(b) ceases to have effect 2 years
after it was made, or after such lesser period as is specified in the order.
(3) A community service order may be an order
of any of the following kinds:
(a) an order known as:
(i) a community service
order; or
(ii) a work order; or
(iii) an attendance centre
order; or
(iv) an attendance order; or
(v) a community based
order;
(b) an order that is similar to an
order referred to in paragraph (a);
(c) an order prescribed for the
purposes of this paragraph.
(4) If a court exercising jurisdiction under
section 70NFB in a particular State or Territory makes a community service
order under paragraph 70NFB(2)(a), the provisions of the laws of the State or
Territory with respect to a community service order that is made under those
laws are, to the extent provided by the regulations and subject to such
modifications as are specified in the regulations, to apply in relation to the
order.
(5) If a court proposes to make a community
service order under paragraph 70NFB(2)(a), it must, before doing so, explain to
the person in respect of whom it is made, in language likely to be readily
understood by the person:
(a) the purpose and effect of the
proposed order; and
(b) the consequences that may follow
if the person fails to comply with the proposed order or with any requirements
made in relation to the order by or under the applied provisions; and
(c) if the proposed order may be
revoked or varied under the applied provisions—that the proposed order may be
so revoked or varied.
(6) In this section:
maximum period, in relation to a State or
Territory, means 500 hours or such lesser period as is prescribed in relation
to the State or Territory.
participating State means a State in relation
to which an agreement under section 70NFI is in force.
participating Territory means a Territory in
relation to which an agreement under section 70NFI is in force.
70NFD
Variation and discharge of community service orders
A community service order made under
paragraph 70NFB(2)(a) may be varied or discharged:
(a) if the court that made the order
is the Family Court or the Federal Magistrates Court—by either of those Courts;
or
(b) otherwise—by the court that made
the order or the Family Court.
70NFE
Bonds
(1) This section provides for bonds that a
court may require a person to enter into under paragraph 70NFB(2)(b).
(2) A bond is to be for a specified period of
up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a
person by a bond include (without limitation) conditions that require the
person:
(a) to attend an appointment (or a
series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute
resolution; or
(d) to be of good behaviour.
Note: Before imposing a condition under this
subsection, the court must consider seeking the advice of a family consultant
about the services appropriate to the person’s needs (see section 11E).
(5) If a court proposes to require a person
to enter into a bond, it must, before making the requirement, explain to the
person, in language likely to be readily understood by the person:
(a) the purpose and effect of the
proposed requirement; and
(b) the consequences that may follow
if the person:
(i) fails to enter into
the bond; or
(ii) having entered into
the bond—fails to act in accordance with the bond.
70NFF
Procedure for enforcing community service orders or bonds
(1) If a court makes a community service
order under paragraph 70NFB(2)(a) in respect of a person, or an order under
paragraph 70NFB(2)(b) requiring a person to enter into a bond in accordance
with section 70NFE, the following provisions have effect.
(2) If the court (whether or not constituted
by the judge or magistrate who made the community service order or required the
bond to be entered into in accordance with section 70NFE) is satisfied
that the person has, without reasonable excuse, failed to comply with the order
or bond, the court may take action under subsection (3).
(3) The court
may:
(a) without prejudice to the
continuance of the community service order or the bond entered into in
accordance with section 70NFE, impose a fine not exceeding 10 penalty
units on the person; or
(b) revoke the community service order
or the bond entered into in accordance with section 70NFE and, subject to
subsection (4), deal with the person, for the contravention in respect of
which the community service order was made or the bond was entered into, in any
manner in which the person could have been dealt with for the contravention if:
(i) the community service
order had not been made or the bond had not been entered into; and
(ii) the person was before
the court under section 70NFB in respect of the contravention.
(4) In dealing with the person as mentioned
in paragraph (3)(b), the court must, in addition to any other matters that
it considers should be taken into account, take into account:
(a) the fact that the community
service order was made or the bond was entered into; and
(b) anything done under the community
service order or pursuant to the bond; and
(c) any fine imposed, and any other
order made, for or in respect of the contravention.
70NFG
Sentences of imprisonment
(1) A sentence of imprisonment imposed on a
person under paragraph 70NFB(2)(e) is to be expressed to be:
(a) for a specified period of 12
months or less; or
(b) for a period ending when the
person:
(i) complies with the
order concerned; or
(ii) has been imprisoned
under the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
(2) A court must not sentence a person to
imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in
all the circumstances of the case, it would not be appropriate for the court to
deal with the contravention under any of the other paragraphs of subsection
70NFB(2).
(3) If a court
sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:
(a) state the reasons why it is
satisfied as mentioned in subsection (2); and
(b) cause those reasons to be entered
in the records of the court.
(4) The failure of a court to comply with
subsection (3) does not invalidate a sentence.
(5) A court that sentences a person to
imprisonment under paragraph 70NFB(2)(e) may:
(a) suspend the sentence upon the
terms and conditions determined by the court; and
(b) terminate a suspension made under
paragraph (a).
(6) A court, when sentencing a person to
imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate
to do so, direct that the person be released upon the person entering into a
bond described in subsection (7) after he or she has served a specified
part of the term of imprisonment.
(7) A bond for the purposes of
subsection (6) is a bond (with or without surety or security) that the
person will be of good behaviour for a specified period of up to 2 years.
(8) A court that has sentenced a person to
imprisonment for a period expressed as provided by paragraph (1)(b) may
order the release of the person if it is satisfied that the person will, if he
or she is released, comply with the order concerned.
(9) To avoid doubt, the serving by a person
of a period of imprisonment under a sentence imposed on the person under
paragraph 70NFB(2)(e) for failure to make a payment under a child maintenance
order does not affect the person’s liability to make the payment.
70NFH
Relationship between Subdivision and other laws
(1) This section applies where an act or
omission by a person:
(a) constitutes a contravention of an
order under this Act affecting children; and
(b) is also an offence against any
law.
(2) If the person is prosecuted in respect of
the offence, a court in which proceedings have been brought under
section 70NFB in respect of the contravention of the order must:
(a) adjourn those proceedings until
the prosecution has been completed; or
(b) dismiss those proceedings.
(3) The person may be prosecuted for, and
convicted of, the offence.
(4) Nothing in this section renders the
person liable to be punished twice in respect of the same act or omission.
70NFI
Arrangements with States and Territories for carrying out of sentences and
orders
An arrangement made under
section 112AN for or in relation to the carrying out of sentences imposed,
or orders made, under Division 2 of Part XIIIA is taken to extend to
the carrying out of sentences imposed, or orders made, under this Subdivision.
70NFJ
Subdivision does not limit operation of section 105
Nothing in this Subdivision is intended
to limit the operation of section 105.
7 Subsection 117(1)
After “subsection (2)”, insert “, subsection 70NFB(1)”.
Part 2—Application of amendments and savings
8 Definitions
In this Part:
commencement means the commencement of this
Schedule.
new Act means the Family Law Act 1975 as in
force after commencement.
old Act means the Family Law Act 1975 as in
force immediately before commencement.
9 Application
The amendments made by this Schedule apply to a contravention or
alleged contravention of a parenting order, if the contravention occurs, or the
alleged contravention is alleged to occur, on or after commencement.
10 Saving of regulations
Despite the repeal of a provision of the old Act specified in the
following table, regulations that:
(a) were made for the purposes of that
provision of the old Act; and
(b) were in force immediately before
commencement;
continue to have effect on and after commencement as if those
regulations had been made for the purposes of the corresponding provision of
the new Act that is specified in the table in relation to that provision of the
old Act:
|
Saving regulations made
under provisions of old Act
|
|
Item
|
Provision of old Act
|
Corresponding provision
of new Act
|
|
1
|
paragraph 70NK(2A)(c)
|
paragraph 70NFC(3)(c)
|
|
2
|
subsection 70NK(3)
|
subsection 70NFC(4)
|
|
3
|
definition of maximum period in subsection
70NK(5)
|
definition of maximum period in subsection
70NFC(6)
|
Schedule 3—Amendments relating to the conduct of child‑related
proceedings
Part 1—Amendments
Evidence Act 1995
1 At the end of subsection 190(1)
Add:
Note: Matters related to evidence in child‑related
proceedings (within the meaning of section 69ZM of the Family Law Act
1975) are dealt with by that Act.
Family Law Act 1975
2 Subsection 4(1)
Insert:
child‑related proceedings has the
meaning given by section 69ZM.
3 Section 60C (after table item 12)
Insert:
|
12A
|
Division 12A—Principles for conducting child‑related
proceedings
principles for conducting proceedings under this Part and
certain other incidental proceedings
duties and powers of the court related to giving effect to
the principles
|
4 After Division 12 of Part VII
Insert:
Division 12A—Principles for conducting child‑related proceedings
Subdivision A—Proceedings to which this Division applies
69ZM
Proceedings to which this Division applies
(1) This Division applies to proceedings that
are wholly under this Part.
(2) This Division also applies to proceedings
that are partly under this Part:
(a) to the extent that they are
proceedings under this Part; and
(b) if the parties to the proceedings
consent—to the extent that they are not proceedings under this Part.
(3) This Division also applies to any other
proceedings between the parties that involve the court exercising jurisdiction
under this Act and that arise from the breakdown of the parties’ marital relationship,
if the parties to the proceedings consent.
(4) Proceedings to which this Division
applies are child‑related proceedings.
(5) Consent given for the purposes of
paragraph (2)(b) or subsection (3) must be:
(a) free from coercion; and
(b) given in the form prescribed by
the applicable Rules of Court.
(6) A party to proceedings may, with the
leave of the court, revoke a consent given for the purposes of
paragraph (2)(b) or subsection (3).
Subdivision B—Principles for conducting child‑related proceedings
69ZN
Principles for conducting child‑related proceedings
Application of the principles
(1) The court must give effect to the
principles in this section:
(a) in performing duties and
exercising powers (whether under this Division or otherwise) in relation to
child‑related proceedings; and
(b) in making other decisions about
the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or
any order made in them.
(2) Regard is to be had to the principles in
interpreting this Division.
Principle 1
(3) The first principle is that the court is
to consider the needs of the child concerned and the impact that the conduct of
the proceedings may have on the child in determining the conduct of the
proceedings.
Principle 2
(4) The second principle is that the court is
to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the
proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family
violence, child abuse and child neglect; and
(b) the parties to the proceedings
against family violence.
Principle 4
(6) The fourth principle is that the
proceedings are, as far as possible, to be conducted in a way that will promote
cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the
proceedings are to be conducted without undue delay and with as little
formality, and legal technicality and form, as possible.
69ZO
This Division also applies to proceedings in Chambers
A judge, Judicial Registrar, Registrar,
Federal Magistrate or magistrate, who is hearing child‑related
proceedings in Chambers, has all of the duties and powers that a court has
under this Division.
Note: An order made in Chambers has the same effect
as an order made in open court.
69ZP
Powers under this Division may be exercised on court’s own initiative
The court may exercise a power under
this Division:
(a) on the court’s own initiative; or
(b) at the request of one or more of
the parties to the proceedings.
Subdivision C—Duties and powers related to giving effect to the principles
69ZQ
General duties
(1) In giving effect to the principles in
section 69ZN, the court must:
(a) decide which of the issues in the
proceedings require full investigation and hearing and which may be disposed of
summarily; and
(b) decide the order in which the
issues are to be decided; and
(c) give directions or make orders
about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular
step is to be taken—consider whether the likely benefits of taking the step
justify the costs of taking it; and
(e) make appropriate use of
technology; and
(f) if the court considers it
appropriate—encourage the parties to use family dispute resolution or family
counselling; and
(g) deal with as many aspects of the
matter as it can on a single occasion; and
(h) deal with the matter, where
appropriate, without requiring the parties’ physical attendance at court.
(2) Subsection (1) does not limit
subsection 69ZN(1).
(3) A failure to comply with
subsection (1) does not invalidate an order.
69ZR
Power to make determinations, findings and orders at any stage of proceedings
(1) If, at any time after the commencement of
child‑related proceedings and before making final orders, the court
considers that it may assist in the determination of the dispute between the
parties, the court may do any or all of the following:
(a) make a finding of fact in relation
to the proceedings;
(b) determine a matter arising out of
the proceedings;
(c) make an order in relation to an
issue arising out of the proceedings.
Note: For example, the court may choose to use this
power if the court considers that making a finding of fact at a particular
point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the
court doing something mentioned in paragraph (1)(a), (b) or (c) at the
same time as making final orders.
(3) To avoid doubt, a judge, Judicial
Registrar, Registrar, Federal Magistrate or magistrate who exercises a power
under subsection (1) in relation to proceedings is not, merely because of
having exercised the power, required to disqualify himself or herself from a
further hearing of the proceedings.
69ZS
Use of family consultants
At any time during child‑related
proceedings, the court may designate a family consultant as the family
consultant in relation to the proceedings.
Note 1: Family consultants have the functions described
in section 11A. These include assisting and advising people involved in
proceedings, and this assistance and advice may involve helping people to
better understand the effect of things on the child concerned. Family
consultants can also inform people about other services available to help them.
Note 2: The court may also order parties to proceedings
to attend appointments with a family consultant. See section 11F.
Subdivision D—Matters relating to evidence
69ZT
Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act
1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of
Part 2.1 (which deal with general rules about giving evidence, examination
in chief, re‑examination and cross‑examination), other than sections 26,
30, 36 and 41;
Note: Section 26 is about the court’s control over
questioning of witnesses. Section 30 is about interpreters.
Section 36 relates to examination of a person without subpoena or other
process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal
with documents and other evidence including demonstrations, experiments and
inspections);
(c) Parts 3.2 to 3.8 (which deal
with hearsay, opinion, admissions, evidence of judgments and convictions,
tendency and coincidence, credibility and character).
(2) The court may give such weight (if any)
as it thinks fit to evidence admitted as a consequence of a provision of the Evidence
Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court
may decide to apply one or more of the provisions of a Division or Part
mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the
circumstances are exceptional; and
(b) the court has taken into account
(in addition to any other matters the court thinks relevant):
(i) the importance of the
evidence in the proceedings; and
(ii) the nature of the
subject matter of the proceedings; and
(iii) the probative value of
the evidence; and
(iv) the powers of the court
(if any) to adjourn the hearing, to make another order or to give a direction
in relation to the evidence.
(4) If the court decides to apply a provision
of a Division or Part mentioned in subsection (1) to an issue in the
proceedings, the court may give such weight (if any) as it thinks fit to
evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the
operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been
prevented from operating because of a provision of a Division or Part mentioned
in that subsection.
69ZU
Evidence of family consultants
The court must not, without the consent
of the parties to the proceedings, take into account an opinion expressed by a
family consultant, unless the consultant gave the opinion as sworn evidence.
69ZV
Evidence of children
(1) This section applies if the court applies
the law against hearsay under subsection 69ZT(2) to child‑related
proceedings.
(2) Evidence of a representation made by a
child about a matter that is relevant to the welfare of the child or another
child, which would not otherwise be admissible as evidence because of the law
against hearsay, is not inadmissible in the proceedings solely because of the
law against hearsay.
(3) The court may give such weight (if any)
as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other
Act or rule of law.
(5) In this section:
child means a person under 18.
representation includes an express or implied
representation, whether oral or in writing, and a representation inferred from
conduct.
69ZW
Evidence relating to child abuse or family violence
(1) The court may make an order in child‑related
proceedings requiring a prescribed State or Territory agency to provide the
court with the documents or information specified in the order.
(2) The documents or information specified in
the order must be documents recording, or information about, one or more of
these:
(a) any notifications to the agency of
suspected abuse of a child to whom the proceedings relate or of suspected
family violence affecting the child;
(b) any assessments by the agency of
investigations into a notification of that kind or the findings or outcomes of
those investigations;
(c) any reports commissioned by the
agency in the course of investigating a notification.
(3) Nothing in the order is to be taken to
require the agency to provide the court with:
(a) documents or information not in
the possession or control of the agency; or
(b) documents or information that
include the identity of the person who made a notification.
(4) A law of a State or Territory has no
effect to the extent that it would, apart from this subsection, hinder or
prevent an agency complying with the order.
(5) The court must admit into evidence any
documents or information, provided in response to the order, on which the court
intends to rely.
(6) Despite subsection (5), the court
must not disclose the identity of the person who made a notification, or
information that could identify that person, unless:
(a) the person consents to the
disclosure; or
(b) the court is satisfied that the
identity or information is critically important to the proceedings and that
failure to make the disclosure would prejudice the proper administration of
justice.
(7) Before making a disclosure for the
reasons in paragraph (6)(b), the court must ensure that the agency that
provided the identity or information:
(a) is notified about the intended disclosure;
and
(b) is given an opportunity to
respond.
69ZX
Court’s general duties and powers relating to evidence
(1) In giving effect to the principles in
section 69ZN, the court may:
(a) give directions or make orders
about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders
about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders
about how particular evidence is to be given; and
(d) if the court considers that expert
evidence is required—give directions or make orders about:
(i) the matters in
relation to which an expert is to provide evidence; and
(ii) the number of experts
who may provide evidence in relation to a matter; and
(iii) how an expert is to
provide the expert’s evidence; and
(e) ask questions of, and seek
evidence or the production of documents or other things from, parties,
witnesses and experts on matters relevant to the proceedings.
(2) Without limiting subsection (1) or
section 69ZR, the court may give directions or make orders:
(a) about the use of written
submissions; or
(b) about the length of written
submissions; or
(c) limiting the time for oral
argument; or
(d) limiting the time for the giving
of evidence; or
(e) that particular evidence is to be
given orally; or
(f) that particular evidence is to be
given by affidavit; or
(g) that evidence in relation to a
particular matter not be presented by a party; or
(h) that evidence of a particular kind
not be presented by a party; or
(i) limiting, or not allowing, cross‑examination
of a particular witness; or
(j) limiting the number of witnesses
who are to give evidence in the proceedings.
(3) The court may, in child‑related
proceedings:
(a) receive into evidence the
transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact
from that transcript that it thinks proper; and
(b) adopt any recommendation, finding,
decision or judgment of any court, person or body of a kind mentioned in any of
subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant
for Aboriginal or Torres Strait Islander children.
5 Section 100A
Repeal the section.
6 At the end of section 102A
Add:
Note: Section 69ZV is relevant to evidence of a
representation by a child, if the admissibility of the evidence would otherwise
be affected by the law against hearsay.
7 Part XI (heading)
Repeal the heading, substitute:
Part XI—Procedure and evidence
Note: Division 12A of Part VII has
provisions about procedure and evidence that apply to child‑related
proceedings (within the meaning of Part VII).
Part 2—Application of amendments
8 Application of amendments
The amendments made by Part 1 of this Schedule apply:
(a) to proceedings commenced by an
application filed on or after 1 July 2006; and
(b) to proceedings commenced by an
application filed before 1 July 2006, if the parties to the proceedings
consent and the court grants leave.
Schedule 4—Changes to dispute resolution
Part 1—Changes to approval of organisations
Family Law Act 1975
1 Subsection 4(1) (definition of voluntary organization)
Repeal the definition.
2 Subsection 13A(1)
Repeal the subsection.
3 Subsection 13A(2)
Omit “the organisation” (first occurring), substitute “an
organisation”.
4 Paragraph 13A2(b)
Repeal the paragraph, substitute:
(b) the organisation’s activities
include, or will include, family and child counselling.
5 Subsection 13B(1)
Repeal the subsection.
6 Subsection 13B(2)
Omit “the organisation” (first occurring), substitute “an
organisation”.
7 Paragraph 13B(2)(b)
Repeal the paragraph, substitute:
(b) the organisation’s activities
include, or will include, family and child mediation.
Part 2—Protection of names
Family Law Act 1975
8 After Part I
Insert:
Part IA—Protection of names
9A Use
of protected names and symbols
(1) A person must not, without the Minister’s
written consent:
(a) use in relation to a business,
trade, profession or occupation; or
(b) use as the name, or as part of the
name, of any firm, body corporate, institution, premises, vehicle, ship,
aircraft or other craft; or
(c) apply, as a trade mark or
otherwise, to goods imported, manufactured, produced, sold, offered for sale or
let for hire; or
(d) use in relation to:
(i) goods or services; or
(ii) the promotion, by any
means, of the supply or use of goods or services:
either:
(e) a protected name, or a name so
closely resembling a protected name as to be likely to be mistaken for it; or
(f) a protected symbol, or a symbol
so closely resembling a protected symbol as to be likely to be mistaken for it.
Penalty: 30 penalty units.
(2) Subsection (1), so far as it applies
in relation to a particular protected name or protected symbol, does not affect
rights conferred by law on a person in relation to:
(a) a trade mark that is a registered
trade mark for the purposes of the Trade Marks Act 1995; or
(b) a design registered under the Designs
Act 2003;
that was so registered, or was registered under the Designs
Act 1906, at the protection time in relation to the name or symbol.
(3) This section, so far as it applies in
relation to a particular protected name or protected symbol, does not affect
the use, or rights conferred by law relating to the use, of a name or symbol
(the relevant name or symbol) by a person in a particular manner
if, at the protection time in relation to the protected name or protected
symbol, the person:
(a) was using the relevant name or
symbol in good faith in that manner; or
(b) would have been entitled to
prevent another person from passing off, by means of the use of the relevant
name or symbol or a similar name or symbol, goods or services as the goods or
services of the first‑mentioned person.
(4) In this section:
protected name means a name prescribed for
the purposes of this definition.
protected symbol means a symbol whose design
is set out in the regulations.
protection time means:
(a) in relation to a protected
name—the time immediately before the commencement of the regulation prescribing
the name; or
(b) in relation to a protected
symbol—the time immediately before the commencement of the regulation setting
out the design of the symbol.
Part 3—Changes to dispute resolution
Family Law Act 1975
9 Subsection 4(1)
Insert:
abuse, in relation to a child, means:
(a) an assault, including a sexual
assault, of the child which is an offence under a law, written or unwritten, in
force in the State or Territory in which the act constituting the assault occurs;
or
(b) a person involving the child in a
sexual activity with that person or another person in which the child is used,
directly or indirectly, as a sexual object by the first‑mentioned person
or the other person, and where there is unequal power in the relationship
between the child and the first‑mentioned person.
10 Subsection 4(1)
Insert:
Accreditation Rules means regulations made
under section 10A.
11 Subsection 4(1) (definition of approved counselling
organisation)
Repeal the definition.
12 Subsection 4(1) (definition of approved mediation
organisation)
Repeal the definition.
13 Subsection 4(1)
Insert:
arbitration has the meaning given by
section 10L.
14 Subsection 4(1) (definition of arbitrator)
Repeal the definition, substitute:
arbitrator has the meaning given by
section 10M.
15 Subsection 4(1) (definition of child counselling)
Repeal the definition.
16 Subsection 4(1) (definition of community mediator)
Repeal the definition.
17 Subsection 4(1) (definition of court counsellor)
Repeal the definition.
18 Subsection 4(1) (definition of court mediator)
Repeal the definition.
19 Subsection 4(1) (definition of family and child
counselling)
Repeal the definition.
20 Subsection 4(1) (definition of family and child
counsellor)
Repeal the definition.
21 Subsection 4(1) (definition of family and child
mediation)
Repeal the definition.
22 Subsection 4(1) (definition of family and child
mediator)
Repeal the definition.
23 Subsection 4(1)
Insert:
family consultant has the meaning given by
section 11B.
24 Subsection 4(1)
Insert:
family counselling has the meaning given by
section 10B.
25 Subsection 4(1)
Insert:
family counsellor has the meaning given by
section 10C.
26 Subsection 4(1)
Insert:
family dispute resolution has the meaning
given by section 10F.
27 Subsection 4(1)
Insert:
family dispute resolution practitioner has
the meaning given by section 10G.
28 Subsection 4(1) (definition of marriage counselling)
Repeal the definition.
29 Subsection 4(1)
Insert:
post‑separation parenting program means
a program:
(a) that is designed to help people to
resolve problems that adversely affect the carrying out of their parenting
responsibilities (including by providing counselling services or by teaching
techniques to resolve disputes); and
(b) that consists of lectures,
discussions (including group discussions) or other activities; and
(c) that is provided by an
organisation that meets the conditions in section 65LB.
30 Subsection 4(1) (definition of private arbitration)
Repeal the definition.
31 Subsection 4(1) (definition of private mediator)
Repeal the definition.
32 Subsection 4(1)
Insert:
relevant property or financial arbitration
has the meaning given by subsection 10L(2).
33 Subsection 4(1)
Insert:
section 13E arbitration has the meaning
given by subsection 10L(2).
34 Subsection 4(1) (definition of welfare officer)
Repeal the definition.
35 After subsection 4(1)
Insert:
(1AA) A reference in this Act to a person or people
involved in proceedings is a reference to:
(a) any of the parties to the
proceedings; and
(b) any child whose interests are
considered in, or affected by, the proceedings; and
(c) any person whose conduct is having
an effect on the proceedings.
36 Parts II and III
Repeal the Parts, substitute:
Part II—Non‑court based family services
Division 1—Accreditation of family counsellors, family dispute
resolution practitioners and other family service providers
10A
Accreditation Rules
(1) The regulations may prescribe
Accreditation Rules. These are rules relating to:
(a) the accreditation of persons as
family counsellors; and
(b) the accreditation of persons as
family dispute resolution practitioners; and
(c) the accreditation of persons to
perform other roles prescribed by regulations made for the purposes of this
paragraph.
(2) Examples of matters that the
Accreditation Rules may deal with are:
(a) the standards that are to be met
by persons who seek to be accredited; and
(b) who is responsible for determining
whether a person meets the Accreditation Rules; and
(c) how accreditation is to be
recognised (for example, by establishment of a register or other method); and
(d) the standards and other
obligations that accredited persons must continue to meet to remain accredited;
and
(e) who is responsible for monitoring
compliance with ongoing requirements in the Rules; and
(f) the consequences of accredited
persons failing to comply with the provisions of this Act and the Rules; and
(g) the obligations of accredited
persons in relation to the monitoring of their compliance; and
(h) how and by whom an accredited
person may have his or her accreditation (or recognition of that accreditation)
suspended or cancelled; and
(i) review of decisions to refuse,
suspend or cancel accreditation (or recognition of accreditation); and
(j) the process for handling
complaints involving accredited persons; and
(k) who may deliver recognised
training to accredited persons, and
(l) dealing with individuals or other
persons who make false or misleading representations about a person’s status as
an accredited person.
Division 2—Family counselling
10B
Definition of family counselling
Family counselling is a
process in which a family counsellor helps:
(a) one or more persons to deal with
personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including
children) who are affected, or likely to be affected, by separation or divorce
to deal with either or both of the following:
(i) personal and
interpersonal issues;
(ii) issues relating to the
care of children.
10C
Definition of family counsellor
(1) A family counsellor is:
(a) a person who is accredited as a
family counsellor under the Accreditation Rules; or
(b) a person who is authorised to act
on behalf of an organisation designated by the Minister for the purposes of
this paragraph; or
(c) a person who is authorised to act
under section 38BD, or engaged under subsection 38R(1A), as a family
counsellor; or
(d) a person who is authorised to act
under section 93D of the Federal Magistrates Act 1999, or engaged
under subsection 115(1A) of that Act, as a family counsellor; or
(e) a person who is authorised by a
Family Court of a State to act as a family counsellor.
(2) The Minister must publish, at least
annually, a list of organisations designated for the purposes of
paragraph (b) of the definition of family counsellor.
(3) An instrument under this section is not a
legislative instrument.
10D
Confidentiality of communications in family counselling
(1) A family counsellor must not disclose a
communication made to the counsellor while the counsellor is conducting family
counselling, unless the disclosure is required or authorised by this section.
(2) A family counsellor must disclose a
communication if the counsellor reasonably believes the disclosure is necessary
for the purpose of complying with a law of the Commonwealth, a State or a
Territory.
(3) A family counsellor may disclose a
communication if consent to the disclosure is given by:
(a) if the person who made the
communication is 18 or over—that person; or
(b) if the person who made the
communication is a child under 18:
(i) each person who has
parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family counsellor may disclose a
communication if the counsellor reasonably believes that the disclosure is
necessary for the purpose of:
(a) protecting a child from the risk
of harm (whether physical or psychological); or
(b) preventing or lessening a serious
and imminent threat to the life or health of a person; or
(c) reporting the commission, or
preventing the likely commission, of an offence involving violence or a threat
of violence to a person; or
(d) preventing or lessening a serious
and imminent threat to the property of a person; or
(e) reporting the commission, or
preventing the likely commission, of an offence involving intentional damage to
property of a person or a threat of damage to property; or
(f) if a lawyer independently
represents a child’s interests under an order under section 68L—assisting
the lawyer to do so properly.
(5) A family counsellor may disclose a
communication in order to provide information (other than personal information
within the meaning of section 6 of the Privacy Act 1988) for
research relevant to families.
(6) Evidence that would be inadmissible
because of section 10E is not admissible merely because this section
requires or authorises its disclosure.
Note: This means that the counsellor’s evidence is
inadmissible in court, even if subsection (2), (3), (4) or (5) allows the
counsellor to disclose it in other circumstances.
(7) Nothing in this section prevents a family
counsellor from disclosing information necessary for the counsellor to give a
certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act
1961.
(8) In this section:
communication includes admission.
10E
Admissibility of communications in family counselling and in referrals from
family counselling
(1) Evidence of anything said, or any
admission made, by or in the company of:
(a) a family counsellor conducting
family counselling; or
(b) a person (the professional)
to whom a family counsellor refers a person for medical or other professional
consultation, while the professional is carrying out professional services for
the person;
is not admissible:
(c) in any court (whether or not
exercising federal jurisdiction); or
(d) in any proceedings before a person
authorised to hear evidence (whether the person is authorised by a law of the
Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that
indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18
that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient
evidence of the admission or disclosure available to the court from other
sources.
(3) Nothing in this section prevents a family
counsellor from disclosing information necessary for the counsellor to give a
certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act
1961.
(4) A family counsellor who refers a person
to a professional (within the meaning of paragraph (1)(b)) must inform the
professional of the effect of this section.
Division 3—Family dispute resolution
10F
Definition of family dispute resolution
Family dispute resolution
is a process (other than a judicial process):
(a) in which a family dispute
resolution practitioner helps people affected, or likely to be affected, by
separation or divorce to resolve some or all of their disputes with each other;
and
(b) in which the practitioner is
independent of all of the parties involved in the process.
10G
Definition of family dispute resolution practitioner
A family dispute resolution
practitioner is:
(a) a person who is accredited as a
family dispute resolution practitioner under the Accreditation Rules; or
(b) a person who is authorised to act
on behalf of an organisation designated by the Minister for the purposes of
this paragraph; or
(c) a person who is authorised to act
under section 38BD, or engaged under subsection 38R(1A), as a family
dispute resolution practitioner; or
(d) a person who is authorised to act
under section 93D of the Federal Magistrates Act 1999, or engaged
under subsection 115(1A) of that Act, as a family dispute resolution
practitioner; or
(e) a person who is authorised by a
Family Court of a State to act as a family dispute resolution practitioner.
(2) The Minister must publish, at least
annually, a list of organisations designated for the purposes of
paragraph (b) of the definition of family dispute resolution
practitioner.
(3) An instrument under this section is not a
legislative instrument.
10H
Confidentiality of communications in family dispute resolution
(1) A family dispute resolution practitioner
must not disclose a communication made to the practitioner while the
practitioner is conducting family dispute resolution, unless the disclosure is
required or authorised by this section.
(2) A family dispute resolution practitioner
must disclose a communication if the practitioner reasonably believes the
disclosure is necessary for the purpose of complying with a law of the
Commonwealth, a State or a Territory.
(3) A family dispute resolution practitioner
may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the
communication is 18 or over—that person; or
(b) if the person who made the
communication is a child under 18:
(i) each person who has
parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family dispute resolution practitioner
may disclose a communication if the practitioner reasonably believes that the
disclosure is necessary for the purpose of:
(a) protecting a child from the risk
of harm (whether physical or psychological); or
(b) preventing or lessening a serious
and imminent threat to the life or health of a person; or
(c) reporting the commission, or
preventing the likely commission, of an offence involving violence or a threat
of violence to a person; or
(d) preventing or lessening a serious
and imminent threat to the property of a person; or
(e) reporting the commission, or
preventing the likely commission, of an offence involving intentional damage to
property of a person or a threat of damage to property; or
(f) if a lawyer independently
represents a child’s interests under an order under section 68L—assisting
the lawyer to do so properly.
(5) A family dispute resolution practitioner
may disclose a communication in order to provide information (other than
personal information within the meaning of section 6 of the Privacy Act
1988) for research relevant to families.
(6) A family dispute resolution practitioner
may disclose information necessary for the practitioner to give a certificate
under subsection 60I(8).
(7) Evidence that would be inadmissible
because of section 10J is not admissible merely because this section
requires or authorises its disclosure.
Note: This means that the practitioner’s evidence is
inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows
the practitioner to disclose it in other circumstances.
(8) In this section:
communication includes admission.
10J
Admissibility of communications in family dispute resolution and in referrals
from family dispute resolution
(1) Evidence of anything said, or any
admission made, by or in the company of:
(a) a family dispute resolution
practitioner conducting family dispute resolution; or
(b) a person (the professional)
to whom a family dispute resolution practitioner refers a person for medical or
other professional consultation, while the professional is carrying out
professional services for the person;
is not admissible:
(c) in any court (whether or not
exercising federal jurisdiction); or
(d) in any proceedings before a person
authorised to hear evidence (whether the person is authorised by a law of the
Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that
indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18
that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient
evidence of the admission or disclosure available to the court from other
sources.
(3) Subsection (1) does not apply to
information necessary for the practitioner to give a certificate under subsection
60I(8).
(4) A family dispute resolution practitioner
who refers a person to a professional (within the meaning of
paragraph (1)(b)) must inform the professional of the effect of this
section.
10K
Family dispute resolution practitioners must comply with regulations
(1) The regulations may prescribe
requirements to be complied with by family dispute resolution practitioners in
relation to the family dispute resolution services they provide.
(2) The regulations may prescribe penalties
not exceeding 10 penalty units in respect of offences against regulations made
for the purposes of subsection (1).
Division 4—Arbitration
10L
Definition of arbitration
(1) Arbitration is a process
(other than the judicial process) in which parties to a dispute present
arguments and evidence to an arbitrator, who makes a determination to resolve
the dispute.
(2) Arbitration may be either:
(a) section 13E arbitration—which
is arbitration of Part VIII proceedings carried out as a result of an
order made under section 13E; or
(b) relevant property or
financial arbitration—which is arbitration (other than section 13E
arbitration) of:
(i) Part VIII
proceedings, Part VIIIA proceedings, Part VIIIB proceedings or
section 106A proceedings; or
(ii) any part of such
proceedings; or
(iii) any matter arising in
such proceedings; or
(iv) a dispute about a
matter with respect to which such proceedings could be instituted.
10M
Definition of arbitrator
An arbitrator is a person
who meets the requirements prescribed in the regulations to be an arbitrator.
10N
Arbitrators may charge fees for their services
(1) An arbitrator conducting arbitration may
charge the parties to the arbitration fees for conducting it.
(2) The arbitrator must give written
information about those fees to the parties before the arbitration starts.
Note: There may be Rules of Court or regulations
relating to the costs of arbitration and how they are assessed or taxed (see
paragraphs 123(1)(se) and 125(1)(bc)).
10P
Immunity of arbitrators
An arbitrator has, in performing his or
her functions as an arbitrator, the same protection and immunity as a Judge of
the Family Court has in performing the functions of a Judge.
Note: Communications with arbitrators are not
confidential, and may be admissible in court.
Part III—Family consultants
Division 1—About family consultants
11A
Functions of family consultants
The functions of family consultants are
to provide services in relation to proceedings under this Act, including:
(a) assisting and advising people involved
in the proceedings; and
(b) assisting and advising courts, and
giving evidence, in relation to the proceedings; and
(c) helping people involved in the
proceedings to resolve disputes that are the subject of the proceedings; and
(d) reporting to the court under
sections 55A and 62G; and
(e) advising the court about
appropriate family counsellors, family dispute resolution practitioners and
courses, programs and services to which the court can refer the parties to the
proceedings.
Note: See subsection 4(1AA) for people who are taken
to be involved in proceedings.
11B
Definition of family consultant
A family consultant is a person who is:
(a) appointed as a family consultant
under section 38N; or
(b) appointed as a family consultant
in relation to the Federal Magistrates Court under the Federal Magistrates
Act 1999; or
(c) appointed as a family consultant
under the regulations; or
(d) appointed under a law of a State
as a family consultant in relation to a Family Court of that State.
Note: The Chief Executive Officers of the Family
Court and the Federal Magistrates Court have all of the functions and powers of
family consultants, and may direct consultants in the performance of their
functions. See Division 1A of Part IVA of this Act and Division 1A
of Part 7 of the Federal Magistrates Act 1999.
11C
Admissibility of communications with family consultants and referrals from
family consultants
(1) Evidence of anything said, or any
admission made, by or in the company of:
(a) a family consultant performing the
functions of a family consultant; or
(b) a person (the professional)
to whom a family consultant refers a person for medical or other professional
consultation, while the professional is carrying out professional services for
the person;
is admissible in proceedings under this Act.
Note 1: Communications with family consultants are not
confidential (except in the special circumstances set out in subsection 38BD(3)
in relation to consultants having several roles).
Note 2: Subsection (1) does not prevent things
said or admissions made by or in the company of family consultants from being
admissible in proceedings other than proceedings under this Act.
(2) Subsection (1) does not apply to a
thing said or an admission made by a person who, at the time of saying the
thing or making the admission, had not been informed of the effect of
subsection (1).
(3) Despite subsection (2), a thing said
or admission made is admissible even if the person who said the thing or made
the admission had not been informed of the effect of subsection (1), if:
(a) it is an admission by an adult
that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) it is a disclosure by a child
under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient
evidence of the admission or disclosure available to the court from other
sources.
11D
Immunity of family consultants
A family consultant has, in performing
his or her functions as a family consultant, the same protection and immunity
as a Judge of the Family Court has in performing the functions of a Judge.
Division 2—Courts’ use of family consultants
11E
Courts to consider seeking advice from family consultants
(1) If, under this Act, a court has the power
to:
(a) order a person to attend family
counselling or family dispute resolution; or
(b) order a person to participate in a
course, program or other service (other than arbitration); or
(c) order a person to attend appointments
with a family consultant; or
(d) advise or inform a person about
family counselling, family dispute resolution or other courses, programs or
services;
the court:
(e) may, before exercising the power,
seek the advice of:
(i) if the court is the
Family Court or the Federal Magistrates Court—a family consultant nominated by
the Chief Executive Officer of that court; or
(ii) if the court is the
Family Court of a State—a family consultant of that court; or
(iii) if the court is not
mentioned in subparagraph (i) or (ii)—an appropriately qualified person
(whether or not an officer of the court);
as to the services appropriate
to the needs of the person and the most appropriate provider of those services;
and
(f) must, before exercising the
power, consider seeking that advice.
(2) If the court seeks advice under
subsection (1), the court must inform the person in relation to whom the
advice is sought:
(a) whom the court is seeking advice
from; and
(b) the nature of the advice the court
is seeking.
11F
Court may order parties to attend appointments with a family consultant
(1) A court exercising jurisdiction in
proceedings under this Act may order one or more parties to the proceedings to
attend an appointment (or a series of appointments) with a family consultant.
Note: Before exercising this power, the court must
consider seeking the advice of a family consultant about the services
appropriate to the parties’ needs (see section 11E).
(2) When making an order under
subsection (1), the court must inform the parties of the effect of
section 11G (consequences of failure to comply with order).
(3) The court may make orders under this
section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the
proceedings; or
(ii) a lawyer independently
representing a child’s interests under an order made under section 68L.
11G
Consequences of failure to comply with order under section 11F
(1) If a person who is ordered to attend an
appointment with a family consultant under section 11F fails to comply
with:
(a) the order made by the court; or
(b) any instruction the consultant
gives to the person;
the consultant must report the failure to the court.
(2) On receiving the report, the court may
make any further orders it considers appropriate.
(3) The court may make orders under
subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the
proceedings; or
(ii) a lawyer independently
representing a child’s interests under an order made under section 68L.
Part IIIA—Obligations to inform people about non‑court based
family services and about court’s processes and services
Division 1—Introduction
12A
Objects of this Part
(1) The objects of this Part are:
(a) to ensure that married couples
considering separation or divorce are informed about the services available to
help with a possible reconciliation, in situations where a reconciliation
between the couple seems a reasonable possibility; and
(b) to ensure that people affected, or
likely to be affected, by separation or divorce are informed about the services
available to help them adjust to:
(i) separation or divorce;
and
(ii) orders made under this
Act; and
(c) to ensure that people affected, or
likely to be affected, by separation or divorce are informed about ways of
resolving disputes other than by applying for orders under this Act.
Division 2—Kind of information to be provided
12B
Prescribed information about non‑court based family services and court’s
processes and services
(1) The regulations may prescribe information
that is to be included in documents provided to persons under this Part,
relating to non‑court based family services and court’s processes and
services.
(2) Without limitation, information
prescribed under this section must include information about:
(a) the legal and possible social
effects of the proposed proceedings (including the consequences for children
whose care, welfare or development is likely to be affected by the
proceedings); and
(b) the services provided by family
counsellors and family dispute resolution practitioners to help people affected
by separation or divorce; and
(c) the steps involved in the proposed
proceedings; and
(d) the role of family consultants;
and
(e) the arbitration facilities
available to arbitrate disputes in relation to separation and divorce.
12C
Prescribed information about reconciliation
The regulations may prescribe
information that is to be included in documents provided to persons under this
Part, relating to services available to help with a reconciliation between the
parties to a marriage.
12D
Prescribed information about Part VII proceedings
(1) The regulations may prescribe information
that is to be included in documents provided under this Part to persons
involved in proceedings under Part VII.
(2) Without limitation, the information must
include information about the family counselling services available to assist
the parties, and the child or children concerned, to adjust to the consequences
of orders under that Part.
Division 3—Who must provide information, and when
12E
Obligations on legal practitioners
(1) A legal practitioner who is consulted by
a person considering instituting proceedings under this Act must give the
person documents containing the information prescribed under section 12B
(about non‑court based family services and court’s processes and
services).
(2) A legal practitioner who is consulted by,
or who is representing, a married person who is a party to:
(a) proceedings for a divorce order in
relation to the marriage; or
(b) financial or Part VII
proceedings in relation to the marriage;
must give the person documents containing the information
prescribed under section 12C (about reconciliation).
(3) A legal practitioner representing a party
in proceedings under Part VII must give the party documents containing the
information prescribed under section 12D (about Part VII
proceedings).
Note: Section 63DA also imposes information‑giving
obligations on legal practitioners dealing with people involved in
Part VII proceedings.
(4) A legal practitioner does not have to
comply with subsection (1), (2) or (3) if the practitioner has reasonable
grounds to believe that the person has already been given documents containing
the prescribed information mentioned in that subsection.
(5) A legal practitioner does not have to
comply with subsection (2) if the practitioner considers that there is no
reasonable possibility of a reconciliation between the parties to the marriage.
12F
Obligations on principal executive officers of courts
Obligation to give prescribed information
(1) The principal executive officer of a
court that has jurisdiction under this Act must ensure that any person who is
considering instituting proceedings under this Act is, on the first occasion
the person deals with a registry of the court, given documents containing the
information prescribed under:
(a) section 12B (about non‑court
based family services and court’s processes and services); and
(b) section 12C (about
reconciliation).
Obligation to respond to requests for information
(2) The principal executive officer of a
court that has jurisdiction under this Act must ensure that, if a person
involved in proceedings under this Act requests an officer or staff member of
the court for information about family counselling services or family dispute
resolution services, the person is given documents containing information about
those services.
Note: See subsection 4(1AA) for people who are taken
to be involved in proceedings.
12G
Obligations on family counsellors, family dispute resolution practitioners and
arbitrators
(1) A family counsellor, family dispute
resolution practitioner or arbitrator who deals with a married person
considering instituting:
(a) proceedings for a divorce order in
relation to the marriage; or
(b) financial or Part VII
proceedings in relation to the marriage;
must give the married person (and in appropriate cases,
that person’s spouse) documents containing the information prescribed under 12C
(about reconciliation).
Note: Section 63DA also imposes information‑giving
obligations on family counsellors and family dispute resolution practitioners
(not arbitrators) dealing with people involved in Part VII proceedings.
(2) A family counsellor, family dispute
resolution practitioner or arbitrator does not have to comply with
subsection (1), if he or she:
(a) has reasonable grounds to believe
that the person has already been given documents containing the prescribed
information or
(b) considers that there is no
reasonable possibility of a reconciliation between the parties to the marriage.
Part IIIB—Court’s powers in relation to court and non‑court
based family services
Division 1—Introduction
13A
Objects of this Part
(1) The objects of this Part are:
(a) to facilitate access to family
counselling:
(i) to help married
couples considering separation or divorce to reconcile; and
(ii) to help people adjust
to separation or divorce; and
(iii) to help people adjust
to court orders under this Act; and
(b) to encourage people to use dispute
resolution mechanisms (other than judicial ones) to resolve matters in which a
court order might otherwise be made under this Act, provided the mechanisms are
appropriate in the circumstances and proper procedures are followed; and
(c) to encourage people to use, in
appropriate circumstances, arbitration to resolve matters in which a court
order might otherwise be made, and to provide ways of facilitating that use;
and
(d) to give the court the power to
require parties to proceedings under this Act to make use of court or non‑court
based family services appropriate to the needs of the parties.
(2) The object mentioned in
paragraph (1)(b) also lies behind the general requirement in
section 60I for family dispute resolution services to be used before applications
for orders under Part VII are made.
Division 2—Help with reconciliation
13B
Court to accommodate possible reconciliations
(1) A court exercising jurisdiction in:
(a) proceedings for a divorce order;
or
(b) financial or part VII proceedings
instituted by a party to a subsisting marriage;
must consider, from time to time, the possibility of a
reconciliation between the parties to the marriage.
(2) If, during the proceedings, the court
considers, from the evidence in the proceedings or the attitude of the parties
to the marriage, that there is a reasonable possibility of a reconciliation
between the parties, the court may adjourn the proceedings to give the parties
the opportunity to consider a reconciliation.
(3) If the court adjourns the proceedings
under subsection (2), the court must advise the parties to attend family
counselling, or use the services of another appropriate person or organisation.
Note: Before advising the parties, the court must
consider seeking the advice of a family consultant about the services
appropriate to the parties’ needs (see section 11E).
(4) If, after an adjournment under
subsection (2), either of the parties requests that the proceedings
resume, the court must resume the proceedings as soon as practicable.
Division 3—Referrals to family counselling, family dispute resolution
and other family services
13C
Court may refer parties to family counselling, family dispute resolution and
other family services
(1) A court exercising jurisdiction in
proceedings under this Act may, at any stage in the proceedings, make one or
more of the following orders:
(a) that one or more of the parties to
the proceedings attend family counselling;
(b) that the parties to the
proceedings attend family dispute resolution;
(c) that one or more of the parties to
the proceedings participate in an appropriate course, program or other service.
Note 1: Before making an order under this section, the
court must consider seeking the advice of a family consultant about the
services appropriate to the parties’ needs (see section 11E).
Note 2: The court can also order parties to attend
appointments with a family consultant (see section 11F).
(2) The court may suggest a particular
purpose for the attendance or participation.
(3) The order may require the party or
parties to encourage the participation of specified other persons who are
likely to be affected by the proceedings.
Note: For example, the participation of children,
grandparents or other relatives may be encouraged.
(4) The court may make any other orders it
considers reasonably necessary or appropriate in relation to the order.
(5) The court may make orders under this
section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the
proceedings; or
(ii) a lawyer independently
representing a child’s interests under an order made under section 68L.
13D
Consequences of failure to comply with order under section 13C
(1) If a party fails to comply with an order
of a court under section 13C, the family counsellor, family dispute
resolution practitioner or provider of the course, program or other service
must report the failure to the court.
(2) On receiving the report, the court may
make any further orders it considers appropriate.
(3) The court may make orders under
subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the
proceedings; or
(ii) a lawyer independently
representing a child’s interests under an order made under section 68L.
Division 4—Court’s role in relation to arbitration of disputes
13E
Court may refer Part VIII proceedings to arbitration
(1) With the consent of all of the parties to
the proceedings, a court exercising jurisdiction in Part VIII proceedings
may make an order referring the proceedings, or any part of them, or any matter
arising in them, to an arbitrator for arbitration.
(2) If the court makes an order under
subsection (1), it may, if necessary, adjourn the proceedings and may make
any additional orders as it thinks appropriate to facilitate the effective
conduct of the arbitration.
13F
Court may make orders to facilitate arbitration of certain disputes
A court that has jurisdiction under this
Act may, on application by a party to relevant property or financial
arbitration, make orders the court thinks appropriate to facilitate the
effective conduct of the arbitration.
13G
Family Court and Federal Magistrates Court may determine questions of law
referred by arbitrator
(1) An arbitrator of section 13E
arbitration or relevant property or financial arbitration may, at any time
before making an award in the arbitration, refer a question of law arising in
relation to the arbitration for determination by:
(a) a single judge of the Family
Court; or
(b) a single judge of the Family Court
of a State; or
(c) the Federal Magistrates Court.
(2) The arbitrator may do so:
(a) on his or her own initiative; or
(b) at the request of one or more of
the parties to the arbitration if the arbitrator considers it appropriate to do
so.
(3) The arbitrator must not make an award in
the arbitration before the judge or Federal Magistrates Court has either:
(a) determined the question of law; or
(b) remitted the matter to the
arbitrator having found that no question of law arises.
13H
Awards made in arbitration may be registered in court
(1) A party to an award made in
section 13E arbitration or in relevant property or financial arbitration
may register the award:
(a) in the case of section 13E
arbitration—in the court that ordered the arbitration; or
(b) otherwise—in a court that has
jurisdiction under this Act.
(2) An award registered under
subsection (1) has effect as if it were a decree made by that court.
13J
Family Court or Federal Magistrates Court can review registered awards
(1) A party to a registered award made in
section 13E arbitration or relevant property or financial arbitration may
apply for review of the award, on questions of law, by:
(a) a single judge of the Family
Court; or
(b) a single judge of the Family Court
of a State; or
(c) the Federal Magistrates Court.
Note: There may be Rules of Court providing for
when, and how, an application for review of the award can be made (see
paragraph 123(1)(sf)).
(2) On a review of an award under this
section, the judge or Federal Magistrates Court may:
(a) determine all questions of law
arising in relation to the arbitration; and
(b) make such decrees as the judge or
Federal Magistrates Court thinks appropriate, including a decree affirming,
reversing or varying the award.
13K
Family Court and Federal Magistrates Court may set aside registered awards
(1) If an award made in section 13E
arbitration or relevant property or financial arbitration, or an agreement made
as a result of such arbitration, is registered in:
(a) the Family Court; or
(b) the Federal Magistrates Court; or
(c) a Family Court of a State;
the court in which the award is registered may make a
decree affirming, reversing or varying the award or agreement.
(2) The court may only make a decree under
subsection (1) if the court is satisfied that:
(a) the award or agreement was
obtained by fraud (including non‑disclosure of a material matter); or
(b) the award or agreement is void,
voidable or unenforceable; or
(c) in the circumstances that have
arisen since the award or agreement was made it is impracticable for some or
all of it to be carried out; or
(d) the arbitration was affected by
bias, or there was a lack of procedural fairness in the way in which the
arbitration process, as agreed between the parties and the arbitrator, was
conducted.
37 Subsection 26B(1)
Omit “19G”, substitute “13K”.
38 Subsection 37(2)
Omit “(other than the court counsellors)”.
39 At the end of section 37
Add:
(3) Despite subsection (2), the
Principal Registrar must not give directions that relate to an officer’s
functions as a family consultant, family counsellor or family dispute
resolution practitioner.
40 Paragraph 37A(1)(e)
Repeal the paragraph, substitute:
(e) the power to make orders under:
(i) sections 11F and
11G; and
(ii) sections 13C and 13D;
and
(iii) subsection 65LA(1);
and
(iv) paragraph 70NEB(1)(a);
(ea) the power to direct a family
consultant to give a report under section 62G;
41 Paragraph 37A(2)(e)
Omit “19G”, substitute “13K”.
42 After Division 1 of Part IVA
Insert:
Division 1A—Administration of Court’s family services
38BA
Chief Executive Officer has functions of family consultants
(1) The Chief Executive Officer has all of
the functions conferred on family consultants by section 11A, and any
associated powers and duties.
(2) Without limiting subsection (1),
sections 11C (admissibility of communications with family consultants) and
11D (immunity of family consultants) apply to the Chief Executive Officer while
the Chief Executive Officer is performing those functions.
(3) The Chief Executive Officer is
responsible for administering the functions of family consultants.
38BB
Chief Executive Officer may delegate powers and functions that relate to family
consultants
(1) The Chief Executive Officer may, in
writing, delegate to a family consultant any of the Chief Executive Officer’s
powers, functions and duties in relation to the functions of family consultants
mentioned in section 11A.
(2) A delegate is, in the exercise of a
delegated power, function or duty, subject to the directions of the Chief
Executive Officer.
38BC
Chief Executive Officer may give directions that relate to family services
functions
The Chief Executive Officer may give
directions that relate to:
(a) a Court officer’s functions as a
family consultant; or
(b) a Court officer’s or staff
member’s functions as a family counsellor or family dispute resolution
practitioner.
38BD
Chief Executive Officer may authorise officer or staff member to act as family
counsellor or family dispute resolution practitioner
(1) The Chief Executive Officer may authorise
an officer or staff member of the Family Court to provide family counselling
under this Act.
(2) The Chief Executive Officer may authorise
an officer or staff member of the Family Court to provide family dispute
resolution under this Act.
(3) If an officer who is a family consultant
also becomes a family counsellor, or family dispute resolution practitioner,
because of an authorisation under this section:
(a) section 11C (admissibility of
communications with family consultants) does not apply to the officer at any
time while the officer is acting as a family counsellor or family dispute
resolution practitioner; and
(b) the officer must not perform the
functions of a family consultant in relation to particular proceedings, if the
officer has conducted family counselling or family dispute resolution with a
person involved in those proceedings.
43 Paragraphs 38N(1)(d), (da), (daa) and (db)
Repeal the paragraphs, substitute:
(d) such family consultants as are
necessary;
44 After subsection 38R(1)
Insert:
(1A) The Chief Executive Officer may engage
persons to perform:
(a) family counselling services under
this Act; or
(b) family dispute resolution services
under this Act.
45 Subsection 38R(2)
After “subsection (1)”, insert “or (1A)”.
46 Paragraph 41(4)(c)
Omit “counselling facilities”, substitute “appropriate family
counselling and family dispute resolution services, and family consultants,”.
47 Paragraph 44(1B)(a)
Repeal the paragraph, substitute:
(a) stating that the parties to the
marriage have considered a reconciliation with the assistance of a specified
person, who is:
(i) a family counsellor;
or
(ii) if the court is the
Family Court, the Federal Magistrates Court or the Family Court of a State—an
individual or an organisation nominated for the parties by a family consultant;
or
(iii) if the court is not
the Family Court, the Federal Magistrates Court or the Family Court of a
State—an individual or an organisation nominated for the parties by an appropriately
qualified officer of the court; and
48 Subsection 55A(2)
Omit “a family and child counsellor or welfare officer”,
substitute “a family consultant”.
49 Section 60C (table item 3)
Repeal the table item, substitute:
|
3
|
Division 3—Reports relating to children under 18
preparation of reports for use in proceedings relating to
children under 18
|
50 Division 3 of Part VII (heading)
Repeal the heading, substitute:
Division 3—Reports relating to children under 18
51 Section 62A
Repeal the section, substitute:
62A
What this Division does
This Division deals with the preparation
of reports for use in proceedings relating to children who are under 18.
52 Sections 62B, 62C, 62CA, 62D, 62E and 62F
Repeal the sections, substitute:
62B
Court’s obligation to inform people to whom Part VII orders apply about
family counselling, family dispute resolution and other family services
If a court makes an order in proceedings
under this Part, the court must inform the parties to the proceedings about the
family counselling services, family dispute resolution services and other
courses, programs and services available to help the parties adjust to the
consequences of that order.
Note: Before informing the parties, the court must
consider seeking the advice of a family consultant about the services
appropriate to the parties’ needs (see section 11E).
53 Subsection 62G(2)
Omit “a family and child counsellor or welfare officer”,
substitute “a family consultant”.
Note: The heading to section 62G is altered by
omitting “family and child counsellors and welfare officers” and
substituting “family consultants”.
54 Subsections 62G(4) and (5)
Repeal the subsections, substitute:
(4) The family consultant may include in the
report, in addition to the matters required to be included in it, any other
matters that relate to the care, welfare or development of the child.
(5) For the purposes of the preparation of
the report, the court may make any other orders, or give any other directions,
that the court considers appropriate (including orders or directions that a
party to proceedings, or the child, attend an appointment or a series of
appointments with a family consultant).
Note: Before making orders under this section, the
court must consider seeking the advice of a family consultant about the
services appropriate to the parties’ needs (see section 11E).
55 Subsection 62G(6)
Omit “counsellor or welfare officer”, substitute “family
consultant”.
56 Section 62H
Repeal the section.
57 Subsection 65F(1)
Repeal the subsection.
58 Paragraph 65F(2)(a)
Omit “a conference with a family and child counsellor or a
welfare officer”, substitute “family counselling”.
59 Paragraph 65L(1)(a)
Omit “a family and child counsellor or a welfare officer”,
substitute “a family consultant”.
Note: The heading to section 65L is altered by
omitting “Counsellors” and substituting “Family consultants”.
60 Paragraph 65L(1)(b)
Omit “a family and child counsellor or a welfare officer”,
substitute “a family consultant”.
61 Subsection 65LA(1)
Repeal the subsection, substitute:
(1) In proceedings for a parenting order, the
court may make an order directing a party to the proceedings to attend a post‑separation
parenting program.
Note: Before making an order under this section, the
court must consider seeking the advice of a family consultant about the
services appropriate to the party’s needs (see section 11E).
62 Subsection 65LA(3) (definition of post‑separation
parenting program or program)
Repeal the definition.
63 Subsection 65LA(3) (definition of post‑separation
parenting program provider or provider)
Repeal the definition.
64 After section 65LA
Insert:
65LB
Conditions for providers of post‑separation parenting programs
(1) An organisation meets the conditions in
this section if:
(a) it is a recipient organisation
(see subsection (2)); or
(b) there is a recipient organisation
in relation to the organisation (see subsection (3)).
(2) An organisation is a recipient
organisation for the purposes of paragraph (1)(a) if it receives, or has
been approved to receive, funding under a program or a part of a program
designated by the Minister under subsection (4) in order to provide
services that include post‑separation parenting programs.
(3) An organisation is a recipient
organisation in relation to another organisation for the purposes of
paragraph (1)(b) if:
(a) both:
(i) the other organisation
is a member of the organisation; and
(ii) the organisation
receives, or has been approved to receive, funding under a program or a part of
a program designated by the Minister under subsection (4) in order that
the organisation’s members may provide services that include post‑separation
parenting programs; or
(b) both:
(i) the organisation acts
on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation
receives, or has been approved to receive, funding under a program or a part of
a program designated by the Minister under subsection (4) in order that
the organisations on whose behalf it acts may provide services that include
post‑separation parenting programs.
(4) The Minister may, in writing, designate
for the purposes of this section:
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth
Government under which money appropriated by the Parliament is provided to
organisations for the purposes of making post‑separation parenting
programs available.
(5) An instrument under this section is not a
legislative instrument.
65 Subsection 67ZA(1)
Repeal the subsection, substitute:
(1) This section applies to a person in the
course of performing duties or functions, or exercising powers, as:
(a) the Registrar or a Deputy
Registrar of a Registry of the Family Court of Australia; or
(b) the Registrar or a Deputy
Registrar of the Family Court of Western Australia; or
(c) a Registrar of the Federal
Magistrates Court; or
(d) a family consultant; or
(e) a family counsellor; or
(f) a family dispute resolution
practitioner; or
(g) an arbitrator; or
(h) a lawyer independently
representing a child’s interests.
Note: The heading to section 67ZA is altered by
omitting “counsellor, mediator” and substituting “family counsellor,
family dispute resolution practitioner”.
66 Subsection 102A(5) (paragraph (b) of the definition
of examined)
Omit “family and child counsellor or welfare officer”, substitute
“family counsellor or family consultant”.
67 Before subsection 111CV(1)
Insert:
(1A) This section covers:
(a) a court; and
(b) the Registrar or a Deputy
Registrar of a Registry of the Family Court of Australia; and
(c) the Registrar or a Deputy
Registrar of a Registry of the Family Court of a State; and
(d) a Registrar of the Federal
Magistrates Court; and
(e) a family consultant; and
(f) a family counsellor; and
(g) a family dispute resolution
practitioner; and
(h) an arbitrator; and
(i) the provider of a course, program
or service which a person is ordered to participate in under this Act.
68 Subsection 111CV(1)
Omit “A court must inform a competent authority of another
country about any information the court”, substitute “A court or person covered
by this section must inform a competent authority of another country about any
information the court or person”.
69 Subsection 111CV(5)
Repeal the subsection.
70 Subsection 115(2)
Omit “representatives of organisations that provide family and
child counselling”, substitute “family counsellors, family dispute resolution
practitioners”.
71 Paragraph 123(1)(j)
Repeal the paragraph, substitute:
(j) authorising an officer making an
investigation mentioned in paragraph (h) to:
(i) take evidence on oath
or affirmation; and
(ii) receive in evidence a
report from a family consultant under section 55A or 62G; and
(iii) receive in evidence a
report from a person who has had dealings with a party to the matter under
investigation under section 65F, 65L, 65LA, 70NEB or 70NEG; and
(ja) enabling the summoning of
witnesses before an officer making an investigation mentioned in
paragraph (h) for the purposes of giving evidence or producing books or
documents; and
72 Paragraph 123(1)(s)
Repeal the paragraph, substitute:
(s) providing for and in relation to:
(i) the attendance at
family counselling by parties to proceedings under this Act; and
(ii) the attendance at
family dispute resolution by parties to proceedings under this Act; and
(iii) the giving of advice
and assistance by family consultants to people involved in proceedings under
this Act; and
(iv) the participation by
parties to proceedings under this Act in courses, programs and other services
(other than those mentioned in subparagraph (i), (ii) or (iii)) that the
parties are ordered by the court to participate in; and
(v) the use, for the
purposes of proceedings under this Act, by courts exercising jurisdiction under
this Act and officers of such courts, of reports about the future conduct of
the proceedings that have been prepared by persons who dealt with the parties
in accordance with Rules of Court made under subparagraphs (i), (ii),
(iii) or (iv); and
73 Paragraph 123(1)(sa)
Omit “court mediators”, substitute “family consultants”.
74 Paragraph 123(1)(sb)
Omit “mediation or”.
75 Paragraph 123(1)(sb)
Omit “section 19E”, substitute “sections 13E and 13F”.
76 Paragraph 123(1)(sc)
Omit “mediated or”.
77 After paragraph 123(1)(sc)
Insert:
(sca) prescribing the disputes,
proceedings or matters in relation to which family consultants may, or must
not, perform their functions; and
78 Paragraph 123(1)(sd)
Repeal the paragraph, substitute:
(sd) providing for and in relation to:
(i) the functions to be
performed by family consultants; and
(ii) the procedures to be
followed in performing those functions; and
(iii) the procedures to be
followed by persons involved in proceedings in relation to which a family
consultant is performing functions; and
(iv) the procedures to be
followed when a family consultant ceases performing functions in relation to a
dispute, proceeding or matter; and
(sda) providing for and in relation to:
(i) the procedures to be
followed by a family counsellor authorised under subsection 38BD(1) or engaged
under subsection 38R(1A); and
(ii) the procedures to be
followed by persons attending family counselling with such a counsellor; and
(iii) the procedures to be
followed when family counselling with such a counsellor ends; and
(sdb) providing for and in relation to:
(i) the procedures to be
followed by a family dispute resolution practitioner authorised under
subsection 38BD(2) or engaged under subsection 38R(1A); and
(ii) the procedures to be
followed by persons attending family dispute resolution with such a
practitioner; and
(iii) the procedures to be
followed when family dispute resolution with such a practitioner ends; and
(sdc) providing for and in relation to:
(i) the procedures to be
followed by an arbitrator in relation to a dispute, proceeding or matter under
this Act; and
(ii) the attendance by
persons at conferences conducted by arbitrators for the purpose of arbitrating
a dispute, proceeding or matter under this Act; and
(iii) the procedure to be
followed when arbitration ends, both where it has resulted in an agreement or
award and where it has not; and
79 Paragraph 123(1)(se)
Repeal the paragraph, substitute:
(se) prescribing matters relating to
the costs of arbitration by arbitrators, and the assessment or taxation of
those costs; and
(sea) prescribing matters relating to the
costs of family counselling by family counsellors authorised under subsection
38BD(1) or engaged under subsection 38R(1A); and
(seb) prescribing matters relating to the
costs of family dispute resolution by family dispute resolution practitioners
authorised under subsection 38BD(2) or engaged under subsection 38R(1A); and
80 Subparagraph 123(1)(sf)(i)
Omit “19D or 19E”, substitute “13H”.
81 Subparagraph 123(1)(sf)(ii)
Omit “19F”, substitute “13J”.
82 Subparagraph 123(1)(sf)(ii)
Omit “19G”, substitute “13K”.
83 Paragraph 125(1)(ba)
Repeal the paragraph, substitute:
(ba) providing for and in relation to
the authorisation of:
(i) officers or staff
members of the Family Court as family counsellors under subsection 38BD(1); and
(ii) officers or staff
members of the Family Court as family dispute resolution practitioners under
subsection 38BD(2); and
84 After paragraph 125(1)(bb)
Insert:
(bba) the registration of awards made in
section 13E arbitration and relevant property or financial arbitration;
and
85 Paragraph 125(1)(bc)
Omit “(sc), (sd) or (se)”, substitute “(sc), (sca), (sd), (sda),
(sdb), (sdc), (se), (sea) or (seb)”.
86 Paragraph 125(1)(ca)
Repeal the paragraph, substitute:
(ca) prescribing fees payable for
services provided by the Family Court in circumstances other than where a court
orders or directs the provision of the services; and
Federal Magistrates Act 1999
87 Section 4
Omit “promote the use of primary dispute resolution”, substitute
“promote the use of dispute resolution”.
88 Section 5
Insert:
Accreditation Rules means regulations made
under section 10A of the Family Law Act 1975.
89 Section 5 (definition of Family and child
counsellor)
Repeal the definition.
90 Section 5
Insert:
family consultant means a family consultant
within the meaning of the Family Law Act 1975.
91 Section 5 (definition of Welfare officer)
Repeal the definition.
92 Part 4 (heading)
Repeal the heading, substitute:
Part 4—Dispute resolution
for proceedings other than proceedings under the Family Law Act 1975
93 Before section 21
Insert:
20A
This Part does not apply to proceedings under the Family Law Act 1975
This Part applies to proceedings in the
Federal Magistrates Court other than proceedings under the Family Law Act
1975.
Note 1: For proceedings under the Family Law Act
1975, see in particular Parts II, III, IIIA and IIIB of that Act, which
contain provisions dealing with family counselling, family dispute resolution
and other processes that apply to the Federal Magistrates Court in relation to
proceedings under that Act.
Note 2: This Part (other than Division 2: see
section 33) applies to proceedings under the Child Support (Assessment)
Act 1989 and the Child Support (Registration and Collection) Act 1988.
94 Section 21 (definition of primary dispute
resolution processes)
Repeal the definition.
95 Section 21
Insert:
dispute resolution processes means procedures
and services for the resolution of disputes otherwise than by way of the
exercise of the judicial power of the Commonwealth, and includes:
(a) counselling; and
(b) mediation; and
(c) arbitration; and
(d) neutral evaluation; and
(e) case appraisal; and
(f) conciliation.
Note: The heading to section 21 is altered by
omitting “Primary dispute” and substituting “Dispute”.
96 Section 22
Omit “primary”.
Note: The heading to section 22 is altered by
omitting “primary”.
97 Section 23 (including the note)
Omit “primary” (wherever occurring).
Note: The heading to section 23 is altered by
omitting “primary”.
98 Section 24
Omit “primary”.
Note: The heading to section 24 is altered by
omitting “primary”.
99 Subsection 25(1)
Omit “primary”.
Note: The heading to section 25 is altered by
omitting “primary”.
100 Subsection 27(1)
Omit “primary” (wherever occurring).
Note: The heading to section 27 is altered by
omitting “primary”.
101 Subsections 27(2), 28(1) and (2) and 29(1)
Omit “primary”.
Note: The headings to sections 28 and 29 are
altered by omitting “primary”.
102 Paragraph 29(2)(a)
Omit “primary”.
103 Subparagraphs 29(2)(b)(i) and (ii)
Omit “primary”.
104 Paragraph 29(2)(c)
Omit “primary”.
105 Section 30
Omit “primary” (wherever occurring).
Note: The headings to sections 30 and 31 are
altered by omitting “primary”.
106 After Division 1 of Part 7
Insert:
Division 1A—Administration of Federal Magistrates Court’s family services
93A
Chief Executive Officer has functions of family consultants
(1) The Chief Executive Officer has all of
the functions conferred on family consultants by section 11A of the Family
Law Act 1975, and any associated powers and duties.
(2) Without limiting subsection (1),
sections 11C (admissibility of communications with family consultants) and
11D (immunity of family consultants) of that Act apply to the Chief Executive
Officer while the Chief Executive Officer is performing the functions of a
family consultant.
(3) The Chief Executive Officer is
responsible for administering the functions of family consultants appointed by
the Chief Executive Officer.
93B
Chief Executive Officer may delegate powers and functions that relate to family
consultants
(1) The Chief Executive Officer may, in
writing, delegate to a family consultant any of the Chief Executive Officer’s
powers, functions and duties in relation to the functions of family consultants
mentioned in section 11A of the Family Law Act 1975.
(2) A delegate is, in the exercise of a
delegated power, function or duty, subject to the directions of the Chief
Executive Officer.
93C
Chief Executive Officer may give directions that relate to family services
functions
The Chief Executive Officer may give
directions that relate to:
(a) a Court officer’s functions as a
family consultant; or
(b) a Court officer’s or staff
member’s functions as a family counsellor or family dispute resolution
practitioner.
93D
Chief Executive Officer may authorise officer or staff member to act as family
counsellor or family dispute resolution practitioner
(1) The Chief Executive Officer may authorise
an officer or staff member of the Family Court to provide family counselling
under Family Law Act 1975.
(2) The Chief Executive Officer may authorise
an officer or staff member of the Federal Magistrates Court to provide family
dispute resolution under the Family Law Act 1975.
(3) If an officer who is a family consultant
also becomes a family counsellor, or family dispute resolution practitioner,
because of an authorisation under this section:
(a) section 11C of the Family
Law Act 1975 (admissibility of communications with family consultants) does
not apply to the officer at any time while the officer is acting as a family
counsellor or family dispute resolution practitioner; and
(b) the officer must not perform the
functions of a family consultant in relation to particular proceedings, if the
officer has conducted family counselling or family dispute resolution with a
party to those proceedings.
107 Paragraph 87(1)(f)
Repeal the paragraph, substitute:
(f) authorising an officer making an
investigation mentioned in paragraph (e) to:
(i) take evidence on oath
or affirmation; and
(ii) receive in evidence a
report from a family consultant under section 55A or 62G of the Family
Law Act 1975; and
(iii) receive in evidence a
report from a person who has had dealings with a party to a matter under
investigation under section 65F, 65L, 65LA, 70NEB or 70NEG of the Family
Law Act 1975; and
(fa) enabling the summoning of
witnesses before an officer making an investigation mentioned in
paragraph (e) for the purposes of giving evidence or producing books or
documents; and
108 Subsection 87(2)
Repeal the subsection, substitute:
(2) The Rules of Court may make provision for
or in relation to:
(a) attendance at family counselling
by parties to proceedings under the Family Law Act 1975; and
(b) attendance at family dispute
resolution by parties to proceedings under the Family Law Act 1975; and
(c) the giving of advice and
assistance by family consultants to people involved in proceedings under the Family
Law Act 1975; and
(d) the participation by parties to
proceedings under the Family Law Act 1975 in courses, programs and other
services that the parties are ordered by the court to participate in; and
(e) the use, for the purposes of
proceedings under the Family Law Act 1975, by the Federal Magistrates
Court and officers of the Court in family law and child support proceedings, of
reports about the future conduct of the proceedings that have been prepared by
persons who dealt with the parties in accordance with Rules of Court made under
paragraphs (a), (b), (c) or (d).
109 At the end of subsection 99(1)
Add:
; (f) such family consultants as are
necessary.
110 Paragraph 102(2)(k)
Repeal the paragraph, substitute:
(k) the power to make orders under the
following provisions of the Family Law Act 1975:
(i) sections 11F and
11G;
(ii) sections 13C and
13D;
(iii) subsection 65LA(1);
(iv) paragraph 70NEB(1)(a);
(ka) the power to direct a family
consultant to give a report under section 62G of the Family Law Act
1975;
111 After section 111
Insert:
111A
Family consultants
Family consultants who are officers of
the Federal Magistrates Court are to be persons engaged under the Public
Service Act 1999.
Note: Family consultants who are not officers of the
Federal Magistrates Court may be appointed under regulations made under the Family
Law Act 1975. See paragraph 11B(b) of the Family Law Act 1975.
112 After subsection 115(1)
Insert:
(1A) The Chief Executive Officer may engage
persons to perform:
(a) family counselling services under
the Family Law Act 1975; or
(b) family dispute resolution services
under the Family Law Act 1975.
113 Subsection 115(2)
After “subsection (1)”, insert “or (1A)”.
Income Tax Assessment Act 1997
113A Subsection 30‑70(1) (table item 8.1.1)
Repeal the item, substitute:
|
8.1.1
|
a public fund established and maintained by a *non‑profit
company solely for the purpose of providing money to be used in giving or
providing marriage education under the Marriage Act 1961 to
individuals in Australia
|
see section 30‑75
|
|
8.1.2
|
a public fund:
(a) that is established and maintained by a *non‑profit
company which receives funding from the Commonwealth to provide family
counselling or family dispute resolution within the meaning of the Family
Law Act 1975; and
(b) that is established and maintained solely for the purpose
of providing money to be used in providing family counselling or family
dispute resolution within the meaning of the Family Law Act 1975 to
individuals in Australia
|
none
|
|
113B Section 30‑75
Repeal the section, substitute:
30‑75
Marriage education organisations must be approved
You can deduct a gift that you make to a
public fund covered by item 8.1.1 of the table in subsection 30‑70(1)
only if the company has been approved by the Minister under section 9C of
the Marriage Act 1961.
Marriage Act 1961
114 Section 9D
Repeal the section.
115 Paragraph 16(2A)(a)
Omit “and child” (wherever occurring).
116 Paragraph 16(2A)(b)
Omit “and child”.
117 Subsection 16(7)
Omit “and child”.
Part 4—Transitional matters relating to family counselling and
family dispute resolution
118 Definitions
(1) Terms used in this Part that are defined in the Family
Law Act 1975 have the same meaning in this Part as they have in that Act.
(2) In this Part:
approved family counselling organisation means:
(a) an organisation in respect of
which an approval is in force under item 120; or
(b) an organisation that is taken to
be an approved family counselling organisation because of item 123.
approved family dispute resolution organisation means:
(a) an organisation in respect of
which an approval is in force under item 125; or
(b) an organisation that is taken to
be an approved family dispute resolution organisation because of item 128.
commencement means the time at which Part 3 of
this Schedule commences.
transition period means the period:
(a) commencing at commencement; and
(b) ending on the day prescribed by
regulations made for the purposes of this definition.
119 Persons who are taken to be family counsellors during
the transition period
During the transition period, a person who is authorised by an
approved family counselling organisation to offer family counselling on behalf
of the organisation is taken to be a family counsellor within the
meaning of section 10C of the Family Law Act 1975.
120 Approval of family counselling organisations
(1) During the transition period, the Minister may, by
notice in writing to an organisation, approve the organisation as a family
counselling organisation if, and only if, the Minister is satisfied that:
(a) the organisation is a recipient
organisation (see subitem (2)); or
(b) there is a recipient organisation
in relation to the organisation (see subitem (3)).
Note: If an organisation meets the requirements for
approval under both this item and item 125, the Minister may approve the
organisation as both a family counselling organisation and a family dispute
resolution organisation.
(2) An organisation is a recipient organisation for the
purposes of paragraph (1)(a) if it receives, or has been approved to
receive, funding under a program or a part of a program designated by the
Minister under subitem (4) in order to provide services that include
family counselling.
(3) An organisation is a recipient organisation in
relation to another organisation for the purposes of paragraph (1)(b) if:
(a) both:
(i) the other organisation
is a member of the organisation; and
(ii) the organisation
receives, or has been approved to receive, funding under a program or a part of
a program designated by the Minister under subitem (4) in order that the
organisation’s members may provide services that include family counselling; or
(b) both:
(i) the organisation acts
on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation
receives, or has been approved to receive, funding under a program or a part of
a program designated by the Minister under subitem (4) in order that the
organisations on whose behalf it acts may provide services that include family
counselling.
(4) The Minister may, in writing, designate for the
purposes of subitem (1):
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth Government under
which money appropriated by the Parliament is provided to organisations for the
purposes of making family counselling and family dispute resolution services
available.
(5) An instrument under this item is not a legislative
instrument.
121 Termination and revocation of approvals
(1) An organisation ceases to be approved under
item 120 if:
(a) the organisation; or
(b) if the organisation is not the
recipient organisation within the meaning of subitem 120(2)—the recipient
organisation in relation to the organisation within the meaning of subitem
120(3);
either:
(c) ceases to receive; or
(d) ceases to be approved to receive;
funding under a program or part of a program designated by the
Minister under subitem 120(4).
(2) The Minister must revoke the approval of an
organisation under item 120 if the organisation requests the revocation.
(3) The Minister’s power to revoke an approval must be
exercised by notice in writing to the organisation concerned.
122 Minister to publish lists of approved family counselling
organisations
The Minister must publish annually, in such manner as the
Minister thinks appropriate, a list of all approved family counselling
organisations.
123 Approved counselling organisations become approved
family counselling organisations
(1) If, immediately before commencement, there is in
force in respect of an organisation an approval under section 13A of the Family
Law Act 1975, the organisation is, during the transition period, taken to
be approved as a family counselling organisation under item 120 of this
Schedule.
Note: An organisation may be approved before
commencement under both section 13A and section 13B of the Family
Law Act 1975. If that is the case, then both this item and item 128
will apply to the organisation.
(2) Subitem (1) does not prevent:
(a) the organisation’s approval from
being terminated; or
(b) the Minister from revoking the
organisation’s approval;
under item 121.
124 Persons who are taken to be family dispute resolution
practitioners during the transition period
During the transition period, these persons are taken to be family
dispute resolution practitioners within the meaning of section 10G
of the Family Law Act 1975:
(a) a person who is authorised by an
approved family dispute resolution organisation to offer family dispute
resolution on behalf of the organisation;
(b) a person, other than a person
mentioned in paragraph (a), who:
(i) on commencement; or
(ii) by the end of the
period of 12 months starting on commencement;
meets the requirements specified
in regulations made for the purposes of this paragraph.
125 Approval of family dispute resolution organisations
(1) During the transition period, the Minister may, by
notice in writing to an organisation, approve the organisation as a family
dispute resolution organisation if, and only if, the Minister is satisfied
that:
(a) the organisation is a recipient
organisation (see subitem (2)); or
(b) there is a recipient organisation
in relation to the organisation (see subitem (3)).
Note: If an organisation meets the requirements for
approval under both this item and item 120, the Minister may approve the
organisation as both a family counselling organisation and a family dispute
resolution organisation.
(2) An organisation is a recipient organisation for the
purposes of paragraph (1)(a) if it receives, or has been approved to receive,
funding under a program or a part of a program designated by the Minister under
subitem (4) in order to provide services that include family dispute
resolution.
(3) An organisation is a recipient organisation in
relation to another organisation for the purposes of paragraph (1)(b) if:
(a) both:
(i) the other organisation
is a member of the organisation; and
(ii) the organisation
receives, or has been approved to receive, funding under a program or a part of
a program designated by the Minister under subsection (4) in order that
the organisation’s members may provide services that include family dispute
resolution; or
(b) both:
(i) the organisation acts
on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation
receives, or has been approved to receive, funding under a program or a part of
a program designated by the Minister under subsection (4) in order that
the organisations on whose behalf it acts may provide services that include
family dispute resolution.
(4) The Minister may, in writing, designate for the
purposes of subitem (1):
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth Government under
which money appropriated by the Parliament is provided to organisations for the
purposes of making family counselling and family dispute resolution services
available.
(5) An instrument under this item is not a legislative
instrument.
126 Termination and revocation of approvals
(1) An organisation ceases to be approved under
item 125 if:
(a) the organisation; or
(b) if the organisation is not the
recipient organisation within the meaning of subitem 125(2)—the recipient
organisation in relation to the organisation within the meaning of subitem
125(3);
either:
(c) ceases to receive; or
(d) ceases to be approved to receive;
funding under a program or part of a program designated by the
Minister under subitem 125(4).
(2) The Minister must revoke the approval of an
organisation under item 125 if the organisation requests the revocation.
(3) The Minister’s power to revoke an approval must be
exercised by notice in writing to the organisation concerned.
127 Minister to publish lists of approved family dispute
resolution organisations
The Minister must publish annually, in such manner as the
Minister thinks appropriate, a list of all approved family dispute resolution
organisations.
128 Approved mediation organisations become approved family
dispute resolution organisations
(1) If, immediately before commencement, there is in
force in respect of an organisation an approval under section 13B of the Family
Law Act 1975, the organisation is, on and from commencement, taken to be
approved as a family dispute resolution organisation under item 125.
Note: An organisation may be approved before
commencement under both section 13A and section 13B of the Family
Law Act 1975. If that is the case, then both this item and item 123
will apply to the organisation.
(2) Subitem (1) does not prevent:
(a) the organisation’s approval from
being terminated; or
(b) the Minister from revoking the
organisation’s approval;
under item 126.
Part 5—Application and transitional provisions relating to other
changes to dispute resolution
129 Definition of commencement
In this Part:
commencement means the time at which Part 3 of
this Schedule commences.
130 Notices filed under section 15
If, at commencement, a notice filed under section 15 of the Family
Law Act 1975 as in force at any time before commencement has not been acted
on, an appropriate officer of the court in which the notice is filed must
arrange for the parties to the marriage to which the notice relates to be
interviewed by a family counsellor for the purpose of assisting the parties to
reconcile or to improve their relationship with each other or any of their
children.
131 Arbitration awards registered under section 19D or
19E are taken to be registered under section 13H
If:
(a) at any time before commencement,
an award in an arbitration had been registered under section 19D or 19E of
the Family Law Act 1975; and
(b) the award is still registered
immediately before commencement;
the registration of the award continues to have effect after
commencement as if it had been done under section 13H of that Act.
132 Powers under Division 4 of Part IIIB of the Family
Law Act 1975 may be exercised in relation to section 19D arbitration
and private arbitration
For the purposes of section 13G, 13H, 13J and 13K:
(a) a reference to section 13E
arbitration includes a reference to section 19D arbitration (within the
meaning of the Family Law Act 1975 as in force immediately before
commencement); and
(b) a reference to relevant property
or financial arbitration includes a reference to private arbitration of a
dispute (within the meaning of the Family Law Act 1975 as in force
immediately before commencement).
133 Subsection 44(1B) certificates
A certificate in relation to the parties to a marriage, signed
before commencement by a person mentioned in subparagraph 44(1B)(a)(i) or (ii)
of the Family Law Act 1975 (as in force immediately before
commencement), may be filed in relation to an application for a divorce order
in relation to the marriage in satisfaction of the requirement in subsection
44(1B) of that Act as amended by this Schedule.
134 Request for counselling under section 62C or 62CA
If, at commencement, a notice filed under section 62C or
62CA of the Family Law Act 1975 has not been acted on, an appropriate
officer of the court in which the notice is filed must arrange for the parties
to the proceedings to which the notice relates (and the child and any other
persons the officer thinks appropriate) to be interviewed by a family
counsellor to assess whether counselling is appropriate in all the
circumstances, and, if it is:
(a) to discuss the care, welfare and
development of the child; and
(b) if there are differences between
the parties in relation to matters affecting the care, welfare and development
of the child, to try to resolve those differences.
135 Order under subsection 62F(2)
If, at commencement, an order under subsection 62F(2) of the Family
Law Act 1975 has not yet been complied with, the order is taken to have
been complied with if the parties to which the order relate attend a conference
with a family counsellor (within the meaning of the Family Law Act 1975 as
amended by this Schedule).
136 Reports under section 62G
If, at commencement, a family and child counsellor or welfare
officer (within the meaning of the Family Law Act 1975 as in force
immediately before commencement) has been directed to give a report under
subsection 62G(2) of that Act and has not yet given that report:
(a) the person must still provide the
report; and
(b) references in section 62G of
that Act (as amended by this Schedule) to a family consultant are taken to be
references to the person who provides the report.
137 Pre‑parenting order counselling for the purposes
of section 65F
If, before commencement, parties to proceedings attended a
conference with a family and child counsellor or a welfare officer to discuss
the matter to which the proceedings relate, the attendance at that conference
is taken to satisfy the requirement in subsection 65F(2) of the Family Law
Act 1975 (as amended by this Schedule) to attend a conference with a family
counsellor.
138 Supervision etc. of parenting orders
If:
(a) under a court order made before
commencement under section 65L of the Family Law Act 1975, a person
is required to do either or both of the following:
(i) supervise compliance
with a parenting order;
(ii) give any party to the
parenting order such assistance as is reasonably requested by that party in
relation to compliance with, and the carrying out of, the parenting order; and
(b) immediately after commencement,
the person is not a family consultant within the meaning of the Family Law
Act 1975 as amended by this Schedule;
then the court may make another order substituting a family
consultant for the person.
138A Application of amendments of the Income Tax
Assessment Act 1997
The amendments made by items 113A and 113B of this Schedule
apply to gifts made on or after commencement.
139 Regulations may prescribe matters relating to this
Schedule
(1) The Governor‑General may make regulations
prescribing matters of a transitional nature (including prescribing any saving
or application provisions) relating to the amendments or repeals made by this
Schedule.
(2) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this
Schedule to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Schedule.
Schedule 5—Representation of child’s interests by independent
children’s lawyer
Part 1—Amendments
Family Law Act 1975
1 Subsection 4(1) (definition of child representative)
Repeal the definition.
2 Subsection 4(1)
Insert:
independent children’s lawyer for a child
means a lawyer who represents the child’s interests in proceedings under an
appointment made under a court order under subsection 68L(2).
3 Subsection 4(1)
Insert:
lawyer means a person enrolled as a legal
practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or
Territory.
4 Section 60C (table item 10)
Repeal the item, substitute:
|
10
|
Division 10—The representation of the child’s
interests
the representation of a child’s interests in proceedings
by an independent children’s lawyer
|
5 Division 10 of Part VII
Repeal the Division, substitute:
Division 10—Independent representation of child’s interests
68L
Court order for independent representation of child’s interests
(1) This section applies to proceedings under
this Act in which a child’s best interests are, or a child’s welfare is, the
paramount, or a relevant, consideration.
(2) If it appears to the court that the
child’s interests in the proceedings ought to be independently represented by a
lawyer, the court:
(a) may order that the child’s
interests in the proceedings are to be independently represented by a lawyer;
and
(b) may make such other orders as it
considers necessary to secure that independent representation of the child’s
interests.
(3) However, if the proceedings arise under
regulations made for the purposes of section 111B, the court:
(a) may order that the child’s
interests in the proceedings be independently represented by a lawyer only if
the court considers there are exceptional circumstances that justify doing so;
and
(b) must specify those circumstances
in making the order.
Note: Section 111B is about the Convention on
the Civil Aspects of International Child Abduction.
(4) A court may make an order for the
independent representation of the child’s interests in the proceedings by a
lawyer:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation
concerned with the welfare of children; or
(iii) any other person.
(5) Without limiting paragraph (2)(b),
the court may make an order under that paragraph for the purpose of allowing
the lawyer who is to represent the child’s interests to find out what the
child’s views are on the matters to which the proceedings relate.
Note: A person cannot require a child to express his
or her views in relation to any matter, see section 60CE.
(6) Subsection (5) does not apply if
complying with that subsection would be inappropriate because of:
(a) the child’s age or maturity; or
(b) some other special circumstance.
68LA
Role of independent children’s lawyer
When section applies
(1) This section applies if an independent
children’s lawyer is appointed for a child in relation to proceedings under
this Act.
General nature of role of independent children’s lawyer
(2) The independent children’s lawyer must:
(a) form an independent view, based on
the evidence available to the independent children’s lawyer, of what is in the
best interests of the child; and
(b) act in relation to the proceedings
in what the independent children’s lawyer believes to be the best interests of
the child.
(3) The independent children’s lawyer must,
if satisfied that the adoption of a particular course of action is in the best
interests of the child, make a submission to the court suggesting the adoption
of that course of action.
(4) The independent children’s lawyer:
(a) is not the child’s legal
representative; and
(b) is not obliged to act on the
child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with
the parties to the proceedings; and
(b) ensure that any views expressed by
the child in relation to the matters to which the proceedings relate are fully
put before the court; and
(c) if a report or other document that
relates to the child is to be used in the proceedings:
(i) analyse the report or
other document to identify those matters in the report or other document that
the independent children’s lawyer considers to be the most significant ones for
determining what is in the best interests of the child; and
(ii) ensure that those
matters are properly drawn to the court’s attention; and
(d) endeavour to minimise the trauma
to the child associated with the proceedings; and
(e) facilitate an agreed resolution of
matters at issue in the proceedings to the extent to which doing so is in the
best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the
independent children’s lawyer:
(a) is not under an obligation to
disclose to the court;
(b) cannot be required to disclose to
the court;
any information that the child communicates to the
independent children’s lawyer.
(7) The independent children’s lawyer may
disclose to the court any information that the child communicates to the
independent children’s lawyer if the independent children’s lawyer considers
the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the
disclosure is made against the wishes of the child.
68M
Order that child be made available for examination
(1) This section applies if an independent
children’s lawyer is appointed to independently represent a child’s interests
in relation to proceedings under this Act.
(2) The court may, on application by the
independent children’s lawyer, order a person mentioned in subsection (3)
to make the child available, as specified in the order, for an examination to
be made for the purpose of preparing a report about the child for use by the
independent children’s lawyer in connection with the proceedings.
(3) The order may be directed to:
(a) a parent of the child; or
(b) a person with whom the child is to
live under a parenting order; or
(c) a person with whom the child is to
spend time under a parenting order; or
(d) a person with whom the child is to
communicate under a parenting order; or
(e) a person who has parental
responsibility for the child.
6 Subparagraph 69W(2)(b)(ii)
Omit “a person representing the child”, substitute “an
independent children’s lawyer representing the child’s interests”.
7 Subparagraph 69ZC(3)(b)(ii)
Omit “a person representing the relevant child”, substitute “an
independent children’s lawyer representing the relevant child’s interests”.
8 Subsection 117(3)
Omit “a child representative”, substitute “an independent
children’s lawyer for a child”.
9 Subsection 117(3)
Omit “the child representative”, substitute “the independent
children’s lawyer”.
10 Subsection 117(4)
Omit “a child representative”, substitute “an independent
children’s lawyer for a child”.
11 Subsection 117(4)
Omit “the child representative”, substitute “the independent
children’s lawyer” (wherever occurring).
12 Subsection 117(5)
Omit “a child representative”, substitute “an independent
children’s lawyer”.
13 Subsection 117(5)
Omit “the child representative”, substitute “the independent
children’s lawyer”.
Part 2—Application of amendments and saving of appointments
14 Definitions
In this Part:
commencement means the commencement of this
Schedule.
new Act means the Family Law Act 1975 as in
force after commencement.
old Act means the Family Law Act 1975 as in
force immediately before commencement.
15 Application of amendments
The amendments made by this Schedule apply to
proceedings initiated under Part VII before, on or after the day on which
this Schedule commences.
16 Saving of appointments
(1) This item applies if:
(a) a court made an order under
section 68L of the old Act for separate representation of a child; and
(b) immediately before commencement,
the proceedings in which the order was made have not been concluded.
(2) The person who was appointed as the child’s
representative under section 68L of the old Act is taken to be appointed
as the independent children’s lawyer under section 68L of the new Act.
(3) The order under section 68L of the old Act for
separate representation of the child is taken to be an order under
section 68L of the new Act for independent representation of the child’s
interests.
Schedule 6—Family violence
Part 1—Amendments
Family Law Act 1975
1 Division 11 of Part VII
Repeal the Division, substitute:
Division 11—Family violence
68N
Purposes of this Division
The purposes of this Division are:
(a) to resolve inconsistencies
between:
(i) family violence
orders; and
(ii) certain orders,
injunctions and arrangements made under this Act that provide for a child to
spend time with a person or require or authorise a person to spend time with a
child; and
(aa) to ensure that orders, injunctions
and arrangements of the kind referred to in subparagraph (a)(ii) do not
expose people to family violence; and
(b) to achieve the objects and
principles in section 60B.
Note: Other provisions dealing with family violence
and family violence orders are section 4 (definitions), paragraphs
60B(1)(b) and 60CC(2)(i) and (j), sections 60CF and 60CG, subsection
60I(9), section 60K, subsection 61DA(2), paragraph 65F(2)(b) and
section 65P.
68P
Obligations of court making an order or granting an injunction under this Act
that is inconsistent with an existing family violence order
(1) This section applies if:
(a) a court:
(i) makes a parenting
order that provides for a child to spend time with a person, or expressly or
impliedly requires or authorises a person to spend time with a child; or
(ii) makes a recovery order
(as defined in section 67Q) or any other order under this Act that
expressly or impliedly requires or authorises a person to spend time with a
child; or
(iii) grants an injunction
under section 68B or 114 that expressly or impliedly requires or
authorises a person to spend time with a child; and
(b) the order made or injunction
granted is inconsistent with an existing family violence order.
(2) The court must, to the extent to which
the order or injunction provides for the child to spend time with a person, or
expressly or impliedly requires or authorises a person to spend time with the
child:
(a) specify in the order or injunction
that it is inconsistent with an existing family violence order; and
(b) give a detailed explanation in the
order or injunction of how the contact that it provides for is to take place;
and
(c) explain (or arrange for someone
else to explain) the order or injunction to:
(i) the applicant and
respondent in the proceedings for the order or injunction; and
(ii) the person against
whom the family violence order is directed (if that person is not the applicant
or respondent); and
(iii) the person protected
by the family violence order (if that person is not the applicant or
respondent); and
(d) include (or arrange to be
included) in the explanation, in language those persons are likely to readily
understand:
(i) the purpose of the
order or injunction; and
(ii) the obligations created
by the order or injunction, including how the contact that it provides for is
to take place; and
(iii) the consequences that
may follow if a person fails to comply with the order or injunction; and
(iv) the court’s reasons for
making an order or granting an injunction that is inconsistent with a family
violence order; and
(v) the circumstances in
which a person may apply for variation or revocation of the order or
injunction.
(3) As soon as practicable after making the
order or granting the injunction (and no later than 14 days after making or
granting it), the court must give a copy to:
(a) the applicant and respondent in
the proceedings for the order or injunction; and
(b) the person against whom the family
violence order is directed (if that person is not the applicant or respondent);
and
(c) the person protected by the family
violence order (if that person is not the applicant or respondent); and
(d) the Registrar, Principal Officer
or other appropriate officer of the court that last made or varied the family
violence order; and
(e) the Commissioner or head (however
described) of the police force of the State or Territory in which the person
protected by the family violence order resides; and
(f) a child welfare officer in
relation to the State or Territory in which the person protected by the family
violence order resides.
(4) Failure to comply with this section does
not affect the validity of the order or injunction.
68Q
Relationship of order or injunction made under this Act with existing
inconsistent family violence order
(1) To the extent to which:
(a) an order or injunction mentioned
in paragraph 68P(1)(a) is made or granted that provides for a child to spend
time with a person, or expressly or impliedly requires or authorises a person
to spend time with a child; and
(b) the order or injunction is
inconsistent with an existing family violence order;
the family violence order is invalid.
(2) An application for a declaration that the
order or injunction is inconsistent with the family violence order may be made,
to a court that has jurisdiction under this Part, by:
(a) the applicant or respondent in the
proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or
(b) the person against whom the family
violence order is directed (if that person is not the applicant or respondent);
or
(c) the person protected by the family
violence order (if that person is not the applicant or respondent).
(3) The court must hear and determine the
application and make such declarations as it considers appropriate.
68R
Power of court making a family violence order to revive, vary, discharge or
suspend an existing order, injunction or arrangement under this Act
Power
(1) In proceedings to make or vary a family
violence order, a court of a State or Territory that has jurisdiction in
relation to this Part may revive, vary, discharge or suspend:
(a) a parenting order, to the extent
to which it provides for a child to spend time with a person, or expressly or
impliedly requires or authorises a person to spend time with the child; or
(b) a recovery order (as defined in
section 67Q) or any other order under this Act, to the extent to which it
expressly or impliedly requires or authorises a person to spend time with a
child; or
(c) an injunction granted under
section 68B or 114, to the extent to which it expressly or impliedly
requires or authorises a person to spend time with a child; or
(d) to the extent to which it
expressly or impliedly requires or authorises a person to spend time with a
child:
(i) an undertaking given
to, and accepted by, a court exercising jurisdiction under this Act; or
(ii) a registered parenting
plan within the meaning of subsection 63C(6); or
(iii) a recognisance entered
into under an order under this Act.
(2) The court may do so:
(a) on its own initiative; or
(b) on application by any person.
Limits on power
(3) The court must not do so unless:
(a) it also makes or varies a family
violence order in the proceedings (whether or not by interim order); and
(b) if the court proposes to revive,
vary, discharge or suspend an order or injunction mentioned in
paragraph (1)(a), (b) or (c)—the court has before it material that was not
before the court that made that order or injunction.
(4) The court must not exercise its power
under subsection (1) to discharge an order, injunction or arrangement in
proceedings to make an interim family violence order or an interim variation of
a family violence order.
Relevant considerations
(5) In exercising its power under subsection (1),
the court must:
(a) have regard to the purposes of
this Division (stated in section 68N); and
(b) have regard to whether contact
with both parents is in the best interests of the child concerned; and
(c) if varying, discharging or
suspending an order or injunction mentioned in paragraph (1)(a), (b) or
(c) that, when made or granted, was inconsistent with an existing family
violence order—be satisfied that it is appropriate to do so because a person
has been exposed, or is likely to be exposed, to family violence as a result of
the operation of that order or injunction.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
Registration of revival, variation, discharge or
suspension of orders and other arrangements
(6) The regulations may require a copy of the
court’s decision to revive, vary, discharge or suspend an order, injunction or
arrangement to be registered in accordance with the regulations. Failure to
comply with the requirement does not affect the validity of the court’s
decision.
68S
Application of Act and Rules when exercising section 68R power
(1) The following provisions do not apply to
a court exercising the power under section 68R:
(a) section 65C (who may apply
for a parenting order);
(b) subsection 65F(2) (parenting order
not to be made unless parties attend family counselling);
(c) section 60CG (court to
consider risk of family violence);
(d) section 69N (requirement to
transfer certain proceedings);
(e) any provisions (for example, section 60CA)
that would otherwise make the best interests of the child the paramount
consideration;
Note: Even though the best interests of the child are
not paramount, they must still be taken into account under paragraph 68R(5)(b).
(f) any provisions of this Act or the
applicable Rules of Court specified in the regulations.
(2) If a court is exercising the power under
section 68R in proceedings to make an interim family violence order or an
interim variation of a family violence order:
(a) the court has a discretion about
whether to apply paragraph 60CC(3)(a) (about taking into account a child’s
views etc.); and
(b) any provisions of this Act or the
applicable Rules of Court specified in the regulations do not apply.
(3) A court exercising the power under
section 68R may, as it thinks appropriate, dispense with any otherwise
applicable Rules of Court.
68T
Special provisions relating to proceedings to make an interim (or interim
variation of) family violence order
(1) If, in proceedings to make an interim
family violence order or an interim variation of a family violence order, the
court revives, varies or suspends an order, injunction or arrangement under
section 68R, that revival, variation or suspension ceases to have effect
at the earlier of:
(a) the time the interim order stops
being in force; and
(b) the end of the period of 21 days
starting when the interim order was made.
(2) No appeal lies in relation to the
revival, variation or suspension.
Part 2—Application of amendments and savings
2 Definitions
In this Part:
commencement means the commencement of this
Schedule.
new Act means the Family Law Act 1975 as in
force after commencement.
old Act means the Family Law Act 1975 as in
force immediately before commencement.
3 Application of amendments
The amendments made by Part 1 of this Schedule apply to
orders made after commencement, whether the application for the order was made
before or after that time.
4 Saving of regulations
Despite the repeal of a provision of the old Act specified in the
following table, regulations that:
(a) were made for the purposes of that
provision of the old Act; and
(b) were in force immediately before
commencement;
continue to have effect on and after commencement as if those
regulations had been made for the purposes of the corresponding provision of
the new Act that is specified in the table in relation to that provision of the
old Act:
|
Saving regulations made
under provisions of old Act
|
|
Item
|
provision of old Act
|
corresponding provision
of new Act
|
|
1
|
subparagraph 68T(3)(a)(iii)
|
paragraph 68S(1)(f)
|
|
2
|
subparagraph 68T(3)(b)(ii)
|
paragraph 68S(2)(b)
|
|
3
|
subsection 68T(6)
|
subsection 68R(6)
|
Schedule 7—Jurisdiction of courts
Part 1—Amendment
Family Law Act 1975
1 Section 45A
Repeal the section.
Part 2—Application of amendment
2 Application of amendment
The amendment made by item 1 of this Schedule
applies to proceedings instituted before or after the commencement of that
item.
Schedule 8—Removal of references to residence and contact
Part 1—Amendments
Australian Citizenship Act 1948
1 Paragraphs 5(2)(b) and (c)
Repeal the paragraphs, substitute:
(b) under a parenting order the child
is to live with the person (whether or not the person is a parent of the
child); or
(c) under a parenting order the person
has parental responsibility for the child’s long‑term or day‑to‑day
care, welfare and development (whether or not the person is a parent of the
child); or
Australian Citizenship Act 2006
2 Paragraphs 6(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) under a parenting order the child
is to live with the person (whether or not the person is a parent of the
child); or
(c) under a parenting order the person
has parental responsibility for the child’s long‑term or day‑to‑day
care, welfare and development (whether or not the person is a parent of the
child); or
Australian Passports Act 2005
3 Paragraphs 11(5)(b) and (c)
Repeal the paragraphs, substitute:
(b) under a parenting order:
(i) the child is to live
with the person; or
(ii) the child is to spend
time with the person; or
(iii) the person is
responsible for the child’s long‑term or day‑to‑day care,
welfare and development; or
4 Subsection 11(6)
Repeal the subsection.
Child Support (Assessment) Act 1989
5 Section 5
Insert:
major care has the meaning given by
subsections 8(3) and 8A(5).
6 Section 5 (definition of major contact)
Repeal the definition.
7 Section 5 (subparagraph (a)(ii) of the
definition of relevant dependent child)
Omit “contact with”, substitute “care of”.
8 Section 5
Insert:
substantial care has the meaning given by
subsections 8(3) and 8A(4).
9 Section 5 (definition of substantial contact)
Repeal the definition.
10 Paragraph 7B(1)(b)
Omit “contact with”, substitute “care of”.
11 Paragraph 7B(1)(d)
Omit “contact with”, substitute “care of”.
12 Paragraph 7B(2)(a)
Omit “provides care for a child, shares care of a child or has
contact with”, substitute “cares for”.
13 Paragraph 7B(2)(c)
Omit “providing or sharing such care, or having such contact”,
substitute “caring for the child”.
14 Subsection 7B(2)
Omit “provide or share such care or have such contact”,
substitute “care for the child”.
15 Subsection 7B(3)
Omit “provide care for, share care of or have contact with,”,
substitute “care for”.
16 Subparagraph 8(3)(b)(ii)
Omit “contact with”, substitute “care of”.
Note: The heading to section 8 is altered by
omitting “contact” and substituting “care”.
17 Paragraph 8(3)(c)
Omit “contact with”, substitute “care
of”.
18 Paragraph 8(3)(d)
Omit “contact with”, substitute “care
of”.
19 Paragraph 8A(1)(a)
Omit “the contact between a child and”, substitute “the time a
child is to spend with”.
Note: The heading to section 8A is altered by
omitting “/contact”.
20 Paragraph 8A(1)(d)
Repeal the paragraph, substitute:
(d) as a result of the contravention:
(i) a person (the first
person) has more care of the child than the first person would have if
the order or parenting plan were not being contravened; and
(ii) another person (the second
person) has less care of the child than the second person would have if
the order or parenting plan were not being contravened.
21 Paragraphs 8A(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) the first person is taken to have
care of the child only to the extent (if any) to which the first person would
have care of the child if the court order or parenting plan (as the case may
be) were being complied with; and
(b) the amount of care that the second
person has of the child is to be worked out on the basis of the care (if any)
that the person actually has of the child; and
22 Subsection 8A(4)
Omit “contact with”, substitute “care
of”.
23 Subsection 8A(5)
Omit “contact with”, substitute “care
of”.
24 Subsection 8A(6)
Omit “contact with”, substitute “care of”.
25 Paragraph 48(1)(da)
Omit “with whom the parent has substantial contact”, substitute
“of whom the parent has substantial care”.
26 Paragraph 48(1)(e)
Omit “with whom a parent has major contact taken to be 0.65, the
number attributed to each child with whom a parent has substantial contact”, substitute
“of whom a parent has major care taken to be 0.65, the number attributed to
each child of whom a parent has substantial care”.
27 Paragraph 54(1)(b) (definition of number of children
in carer’s care)
Omit “with whom a carer has major contact taken to be 0.65, the
number attributed to each child with whom a carer has substantial contact”,
substitute “of whom a carer has major care taken to be 0.65, the number
attributed to each child of whom a carer has substantial care”.
28 Section 54 (example 2)
Omit “substantial contact”, substitute “substantial care”.
29 Paragraph 54A(1)(a)
Omit “and contact”.
30 Subparagraph 54A(1)(b)(ii)
Omit “contact with”, substitute “care of”.
31 Paragraph 54B(1)(e)
Omit “with whom the parent has substantial contact”, substitute
“of whom the parent has substantial care”.
32 Subparagraph 54B(1)(f)(i)
Omit “with whom the carer has major contact”, substitute “of whom
the carer has major care”.
33 Subparagraph 54B(1)(f)(ii)
Omit “with whom the carer has substantial contact”, substitute
“of whom the carer has substantial care”.
34 Paragraph 98C(2)(b)
Omit “sub‑subparagraph 117(2)(b)(i)(C)”, substitute
“subparagraph 117(2)(b)(ib)”.
35 Subparagraph 117(2)(a)(iv)
Repeal the subparagraph, substitute:
(iv) high costs involved in
enabling a parent to care for any other child or another person that the parent
has a duty to maintain;
36 Subparagraph 117(2)(b)(i)
Repeal the subparagraph, substitute:
(i) because of high costs
involved in enabling a parent to care for the child; or
(ia) because of special
needs of the child; or
(ib) because of high child
care costs in relation to the child; or
37 Subsection 117(3)
Omit “have contact with”, substitute “care for”.
38 Subsection 117(3)
Omit “sub-subparagraph (2)(b)(i)(A)”, substitute
“(2)(b)(i)”.
39 Subsections 117(3A) and (3B)
Omit “sub-subparagraph (2)(b)(i)(C)”, substitute
“subparagraph (2)(b)(ib)”.
Family Law Act 1975
40 Subsection 4(1) (definition of contact order)
Repeal the definition.
41 Subsection 4(1) (definition of has)
Repeal the definition.
42 Subsection 4(1) (definition of made in favour)
Repeal the definition, substitute:
made in favour, in relation to a parenting
order (other than a child maintenance order), has the meaning given by
subsection 64B(6).
43 Subsection 4(1)
Insert:
overseas child order means:
(a) an order made by a court of a
prescribed overseas jurisdiction that:
(i) however it is
expressed, has the effect of determining the person or persons with whom a
child who is under 18 is to live, or that provides for a person or persons to
have custody of a child who is under 18; or
(ii) however it is
expressed, has the effect of providing for a person or persons to spend time
with a child who is under 18; or
(iii) however it is
expressed, has the effect of providing for contact between a child who is under
18 and another person or persons, or that provides for a person or persons to
have access to a child who is under 18; or
(iv) varies or discharges an
order of the kind referred to in subparagraph (i), (ii) or (iii),
including an order of that kind made under this Act; or
(b) an order made for the purposes of
the Convention referred to in section 111B by a judicial or administrative
authority of a convention country (within the meaning of the regulations made
for the purposes of that section).
44 Subsection 4(1) (definition of residence order)
Repeal the definition.
45 Subsection 4(1) (definition of specific issues order)
Repeal the definition.
46 Subsection 4(1)
Insert:
State child order means an order made under
the law of a State:
(a) that (however it is expressed) has
the effect of determining the person or persons with whom a child who is under
18 is to live, or that provides for a person or persons to have custody of a
child who is under 18; or
(b) that (however it is expressed) has
the effect of providing for a person or persons to spend time with a child who
is under 18; or
(c) that (however it is expressed) has
the effect of providing for contact between a child who is under 18 and another
person or persons, or that provides for a person or persons to have access to a
child who is under 18.
47 Subsection 4(1)
Insert:
Subdivision C parenting order, when used in
Division 13 of Part VII, means a parenting order to the extent to
which it deals with:
(a) whom a child is to live with; or
(b) whom a child is to spend time
with; or
(c) who is to be responsible for a
child’s day‑to‑day care, welfare and development.
48 Subsection 26B(1A)
Repeal the subsection, substitute:
(1A) An excluded child order is:
(a) a parenting order to the extent to
which it provides that:
(i) a child is to live
with a person; or
(ii) a child is to spend
time with a person; or
(iii) a child is to
communicate with a person; or
(iv) a person is to have
parental responsibility for a child; or
(b) an order in relation to the
welfare of a child;
other than:
(c) a parenting order made under
paragraph 70NEB(1)(b) or an order made under paragraph 70NFB(2)(c) that has the
same effect as such a parenting order; or
(d) an order until further order; or
(e) an order made in undefended
proceedings; or
(f) an order made with the consent of
all the parties to the proceedings.
49 Subsection 37A(2A)
Repeal the subsection, substitute:
(2A) An excluded child order is:
(a) a parenting order to the extent to
which it provides that:
(i) a child is to live
with a person; or
(ii) a child is to spend
time with a person; or
(iii) a child is to
communicate with a person; or
(iv) a person is to have
parental responsibility for a child; or
(b) an order in relation to the
welfare of a child;
other than:
(c) an order until further order; or
(d) an order made in undefended
proceedings; or
(e) an order made with the consent of
all the parties to the proceedings.
50 Section 60C (table item 6)
Omit “, other than child maintenance orders” (first occurring),
substitute “(other than child maintenance orders) after attending, if
necessary, family dispute resolution (see section 60I)”.
51 Section 60C (table item 6)
Omit “residence orders, contact orders and specific issues
orders”, substitute “parenting orders, other than child maintenance orders”.
52 Section 60C (table item 11)
Omit “contact orders etc.”, substitute “parenting orders”.
53 Section 60C (table item 13A)
Omit “for contact forgone”, substitute “a person for time that a
child did not spend with the person, or for time that a child did not live with
the person,”.
54 Subsection 63C(4)
Repeal the subsection, substitute:
(4) Provisions of a parenting plan that deal
with matters other than the maintenance of a child are child welfare
provisions.
55 Subsection 63C(5)
Omit “(c)”, substitute “(f)”.
56 Subsection 63F(3)
Repeal the subsection, substitute:
(3) The child welfare provisions have effect,
subject to subsections (5) and (6), as if they were provisions of a
parenting order.
Note: Provisions of this Act relevant to the child
welfare provisions having effect as provided in this subsection include:
(a) Subdivisions C, D and E of Division 6 of
this Part (dealing with obligations created by parenting orders (other than
child maintenance orders)); and
(b) Division 13A of this Part and
Part XIII (dealing generally with enforcement of orders and sanctions for
contravening orders); and
(c) subsection 65D(2) (providing for discharge,
variation, suspension and revival of parenting orders other than child
maintenance orders); and
(d) other provisions of this Act (including
subsection 64B(6)) that refer to parenting orders.
57 Paragraph 65A(b)
Repeal the paragraph, substitute:
(b) the general obligations created by
parenting orders, other than child maintenance orders (Subdivision C); and
58 Subsection 65G(1)
Repeal the subsection, substitute:
(1) This section applies if:
(a) a court proposes to make a
parenting order that deals with whom a child is to live with; and
(b) under the order, the child would
not live with a parent, grandparent or other relative of the child; and
(c) the court proposes to make that
order with the consent of all the parties to the proceedings.
(1A) This section also applies if:
(a) a court proposes to make a
parenting order that deals with the allocation of parental responsibility for a
child; and
(b) under the order, no parent,
grandparent or other relative of the child would be allocated parental
responsibility for the child; and
(c) the court proposes to make that
order with the consent of all the parties to the proceedings.
Note: The heading to section 65G is altered by
omitting “residence order or specific issues order” and substituting “parenting
order about whom a child lives with or the allocation of parental
responsibility”.
59 Paragraph 65K(1)(a)
Repeal the paragraph, substitute:
(a) a parenting order is in force that
provides that a child is to live with one of the child’s parents; and
Note: The heading to section 65K is altered by
omitting “that is or includes residence order” and substituting “that
deals with whom a child lives with”.
60 Subsection 65K(3)
Repeal the subsection, substitute:
(3) The surviving parent, or another person
(subject to section 65C), may apply for a parenting order that deals with
the person or persons with whom the child is to live.
61 Subdivision C of Division 6 of Part VII
(heading)
Repeal the heading, substitute:
Subdivision C—General obligations created by certain parenting orders
62 Subsection 65M(1)
Repeal the subsection, substitute:
(1) This section applies to a parenting order
that is in force in relation to a child to the extent to which the order deals
with whom the child is to live with.
Note: The heading to section 65M is altered by
omitting “residence order” and substituting “parenting order that
deals with whom a child lives with”.
63 Sections 65N and 65P
Repeal the sections, substitute:
65N
General obligations created by parenting order that deals with whom a child
spends time with
(1) This section applies to a parenting order
that is in force in relation to a child to the extent to which the order deals
with whom the child is to spend time with.
(2) A person must not:
(a) hinder or prevent a person and the
child from spending time together in accordance with the order; or
(b) interfere with a person and the
child benefiting from spending time with each other under the order.
65NA
General obligations created by parenting order that deals with whom a child
communicates with
(1) This section applies to a parenting order
that is in force in relation to a child to the extent to which the order deals
with whom the child is to communicate with.
(2) A person must not:
(a) hinder or prevent a person and the
child from communicating with each other in accordance with the order; or
(b) interfere with the communication
that a person and the child are supposed to have with each other under the
order.
65P
General obligations created by parenting order that allocates parental
responsibility
(1) This section applies to a parenting order
that is in force in relation to a child to the extent to which the order
allocates parental responsibility for the child to a person (the carer).
(2) A person must not hinder the carer in, or
prevent the carer from, discharging that responsibility.
64 Paragraphs 65Q(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) a parenting order provides that:
(i) a child is to live
with a person; or
(ii) a child is to spend
time with a person; or
(iii) a child is to
communicate with a person; and
(b) a court having jurisdiction under
this Part is satisfied, on application by the person referred to in
paragraph (1)(a), that there are reasonable grounds for believing that a
person (the alleged offender) has contravened section 65M,
65N or 65NA in relation to the order; and
65 Subsection 65X(1)
Repeal the subsection, substitute:
(1) In this Subdivision:
parenting order to which this Subdivision applies
means a parenting order to the extent to which it provides, or would provide,
that:
(a) a child is to live with a person;
or
(b) a child is to spend time with a
person; or
(c) a child is to communicate with a
person; or
(d) a person is to have parental
responsibility for a child.
66 Subsection 65Y(1)
Omit “If a residence order, a contact order or a care order (the Part VII
order)”, substitute “If a parenting order to which this Subdivision
applies”.
Note: The heading to section 65Y is altered by
omitting “residence order, contact order or care order has” and
substituting “certain parenting orders have”.
67 Paragraph 65Y(2)(a)
Omit “Part VII order”, substitute “order referred to in
subsection (1)”.
68 Paragraph 65Y(2)(b)
Omit “Part VII order”, substitute “order referred to in
subsection (1)”.
69 Subsection 65Z(1)
Omit “a residence order, a contact order or a care order”,
substitute “a parenting order to which this Subdivision applies”.
Note: The heading to section 65Z is altered by
omitting “residence order, contact order or care order” and substituting
“certain parenting orders”.
70 Paragraph 65ZA(1)(a)
Repeal the paragraph, substitute:
(a) a parenting order to which this
Subdivision applies is in force; and
Note: The heading to section 65ZA is altered by
omitting “residence order, contact order or care order” and substituting
“certain parenting orders”.
71 Paragraph 65ZA(1)(b)
Omit “Part VII”.
72 Subsections 65ZA(3) and (4)
Omit “Part VII”.
73 Paragraph 65ZB(1)(a)
Omit “a residence order, a contact order or a care order”, substitute
“a parenting order to which this Subdivision applies”.
Note: The heading to section 65ZB is altered by
omitting “residence order, contact order or care order” and substituting
“certain parenting orders”.
74 Paragraphs 67K(1)(a) to (c)
Repeal the paragraphs, substitute:
(a) a person with whom the child is to
live under a parenting order; or
(b) a person with whom the child is to
spend time under a parenting order; or
(c) a person with whom the child is to
communicate under a parenting order; or
(caa) a person who has parental
responsibility for the child under a parenting order; or
75 Subparagraphs 67Q(a)(ii) and (iii)
Repeal the subparagraphs, substitute:
(ii) a person with whom the
child is to live under a parenting order; or
(iii) a person with whom the
child is to spend time under a parenting order; or
(iv) a person with whom the
child is to communicate under a parenting order; or
(v) a person who has
parental responsibility for the child;
76 Subparagraphs 67Q(d)(ii) to (iv)
Repeal the subparagraphs, substitute:
(ii) a person described in
subparagraph (a)(ii), (iii), (iv) or (v); or
(iii) some other person on
behalf of a person described in subparagraph (i) or (ii);
77 Paragraphs 67T(a) to (c)
Repeal the paragraphs, substitute:
(a) a person with whom the child is to
live under a parenting order; or
(b) a person with whom the child is to
spend time under a parenting order; or
(c) a person with whom the child is to
communicate under a parenting order; or
(caa) a person who has parental responsibility
for the child under a parenting order; or
78 Subparagraphs 68B(1)(b)(ii) and (iii)
Repeal the subparagraphs, substitute:
(ii) a person with whom the
child is to live under a parenting order; or
(iii) a person with whom the
child is to spend time under a parenting order; or
(iv) a person with whom the
child is to communicate under a parenting order; or
(v) a person who has
parental responsibility for the child; or
79 Paragraph 69Z(2)(c)
Repeal the paragraph, substitute:
(c) a person who, under a parenting
order, has responsibility for the child’s long‑term or day‑to‑day
care, welfare and development.
80 Paragraph 69ZA(1)(c)
Repeal the paragraph, substitute:
(c) a person who, under a parenting
order, has responsibility for the child’s long‑term or day‑to‑day
care, welfare and development.
81 Subparagraph 69ZH(3)(a)(ii)
Repeal the subparagraph, substitute:
(ii) whom the child lives
with, whom the child spends time with and other aspects of the care, welfare
and development of the child; and
82 Subsection 70J(1)
Omit “a residence order, a contact order or a care order”,
substitute “a Subdivision C parenting order”.
83 Paragraph 70J(1)(a)
Repeal the paragraph, substitute:
(a) each person:
(i) with whom the child is
supposed to live; or
(ii) who is to spend time
with the child; or
(iii) who is to have contact
with the child; or
(iv) who has rights of
custody or access in relation to the child;
under the overseas order
consents to the exercise of jurisdiction by the court in the proceedings; or
84 Subsection 70J(2)
Omit “a residence order, a contact order or a care order”
(wherever occurring), substitute “a Subdivision C parenting order”.
85 Paragraph 70J(2)(b)
Omit “the residence order, contact order or care order”,
substitute “the Subdivision C parenting order”.
86 Paragraph 70K(b)
Omit “a residence order, a contact order or a care order”,
substitute “a Subdivision C parenting order”.
Note: The heading to section 70K is altered by
omitting “residence order, contact order or care order” and substituting
“Subdivision C parenting order”.
87 Subsection 70L(1) (paragraph (a) of the definition
of Australian child order)
Repeal the paragraph, substitute:
(a) a Subdivision C parenting order;
or
88 Subsection 70L(1) (paragraph (a) of the definition
of responsible person)
Repeal the paragraph, substitute:
(a) with whom the child is supposed to
live under the order; or
(aa) whom the child is supposed to
spend time with under the order; or
(ab) whom the child is supposed to have
contact with under the order; or
89 Paragraph 70M(1)(a)
Repeal the paragraph, substitute:
(a) a court in Australia makes, in
relation to a child who is under 18:
(i) a parenting order,
other than a child maintenance order; or
(ii) a State child order;
and
90 Paragraph 70M(3)(a)
Repeal the paragraph, substitute:
(a) a person with whom the child is
supposed to live under the order; or
(aa) a person with whom the child is
supposed to spend time under the order; or
(ab) a person with whom the child is
supposed to have contact under the order; or
91 Subsection 70N(1)
Repeal the subsection, substitute:
(1) The regulations may make provision for
and in relation to the sending to a prescribed overseas jurisdiction of copies
of, and documents relating to:
(a) a parenting order, other than a
child maintenance order; or
(b) a State child order;
that relates to a child to whom an overseas child order
relates.
92 Paragraphs 79A(1AA)(b) and (c)
Repeal the paragraphs, substitute:
(b) a parenting order provides that:
(i) the child is to live
with the person; or
(ii) the person has
parental responsibility for the child.
93 Paragraphs 90K(2)(b) and (c)
Repeal the paragraphs, substitute:
(b) a parenting order provides that:
(i) the child is to live
with the person; or
(ii) the person has
parental responsibility for the child.
94 Subparagraph 91(1)(b)(i)
Repeal the subparagraph, substitute:
(i) a parenting order,
other than a child maintenance order; or
95 Paragraphs 92A(2)(ba) and (bb)
Repeal the paragraphs, substitute:
(ba) a person with whom the child is to
live under a parenting order;
(bb) a person who has parental
responsibility for the child under a parenting order;
96 Paragraph 111B(1A)(c)
Repeal the paragraph, substitute:
(c) relating to a Central Authority
within the meaning of the regulations applying on behalf of another person for
a parenting order that deals with the person or persons with whom a child is to
spend time or communicate if the outcome of the proceedings is that the child
is not to be returned under the Convention.
97 Paragraph 111B(4)(b)
Repeal the paragraph, substitute:
(b) subject to any order of a court
for the time being in force, a person:
(i) with whom a child is
to live under a parenting order; or
(ii) who has parental
responsibility for a child under a parenting order;
should be regarded as having
rights of custody in respect of the child; and
98 Paragraph 111B(4)(d)
Repeal the paragraph, substitute:
(d) subject to any order of a court
for the time being in force, a person:
(i) with whom a child is
to spend time under a parenting order; or
(ii) with whom a child is
to communicate under a parenting order;
should be regarded as having a
right of access to the child.
99 Subsection 111B(4) (note)
Repeal the note, substitute:
Note: The references in paragraphs (b) and (d)
to parenting orders also cover provisions of parenting agreements registered
under section 63E (see section 63F, in particular
subsection (3)).
100 Section 111CW
Repeal the section, substitute:
111CW
Court proceedings dealing with whom a child spends time with
(1) A court hearing proceedings under
Part VII (Children) or regulations made for the purposes of
section 111B dealing with:
(a) whom a child is to spend time
with; or
(b) whom a child is to communicate
with;
must admit into evidence and consider the findings (if
any) of a competent authority of a Convention country on the suitability of a
parent as a person for the child to spend time with or communicate with.
(2) The court may adjourn the proceedings
pending the outcome of a request by a parent of the child to a competent
authority of a Convention country for a finding on the suitability of the
parent as a person for the child to spend time with or communicate with.
(3) On the application of a parent who is an
Australian resident seeking to have, or to continue to have, a child spend time
with or communicate with the parent, a court may:
(a) admit evidence; and
(b) make a finding on the suitability
of that parent as a person for the child to spend time with or communicate
with; and
(c) specify conditions on which the
child is to spend time with or communicate with the person.
101 Paragraph 117A(1)(a)
Repeal the paragraph, substitute:
(a) a court has found, for the
purposes of Division 13A of Part VII, that a person has, by taking a
child away from another person or by refusing or failing to deliver a child to
another person, contravened a parenting order to the extent to which the order
provides that:
(i) a child is to live
with a person; or
(ii) a child is to spend
time with a person; or
(iii) a child is to
communicate with a person;
Migration Act 1958
102 Subsection 192(8)
Repeal the subsection, substitute:
(8) In paragraph (7)(b), guardian
includes a person who is responsible, under a parenting order (within the
meaning of the Family Law Act 1975), for the detainee’s long‑term
care, welfare and development.
Part 2—Savings
103 Definitions
In this Part:
commencement means the commencement of this item.
new Act means the Family Law Act 1975 as in
force after commencement.
old Act means the Family Law Act 1975 as in
force immediately before commencement.
104 Saving of regulations
Despite the repeal of a provision of the old Act specified in the
following table, regulations that:
(a) were made for the purposes of that
provision of the old Act; and
(b) were in force immediately before
commencement;
continue to have effect on and after commencement as if those
regulations had been made for the purposes of the corresponding provision of
the new Act that is specified in the table in relation to that provision of the
old Act:
|
Saving regulations made
under provisions of old Act
|
|
Item
|
Provision of old Act
|
Corresponding provision
of new Act
|
|
1
|
definition of overseas child order in
section 70F
|
definition of overseas child order in
subsection 4(1)
|
|
2
|
subsection 70N(1)
|
subsection 70N(1)
|
|
3
|
paragraph 111B(1A)(c)
|
paragraph 111B(1A)(c)
|
Schedule 9—Relocation of defined terms used in Part VII
Part 1—Amendments
Australian Passports Act 2005
2 Subsection 6(2)
Omit “of section 70F”.
Child Support (Registration and
Collection) Act 1988
4 Subsection 4(1) (definition of child of a marriage)
Omit “Part VII of”.
5 Subsection 4(1) (definition of step‑parent)
Omit “Part VII of”.
Family Law Act 1975
6 Subsection 4(1)
Insert:
adopted, in relation to a child, means
adopted under the law of any place (whether in or out of Australia) relating to
the adoption of children.
7 Subsection 4(1)
Insert:
alleged contravention, in Subdivision D of
Division 6 of Part VII, means the alleged contravention because of
which the alleged offender is arrested.
8 Subsection 4(1)
Insert:
alleged offender, in Subdivision D of
Division 6 of Part VII, means the person who is arrested.
9 Subsection 4(1)
Insert:
applied provisions, when used in
Division 13A of Part VII in relation to a community service order
made under paragraph 70NFB(2)(a), means the provisions of the laws of a State
or Territory (as modified by regulations made under subsection 70NFC(4)), that,
because of regulations made under that subsection, apply in relation to the
order.
10 Subsection 4(1)
Insert:
appropriate authority, when used in
Part VII in relation to a Commonwealth instrumentality, means a person:
(a) who in, or in relation to, the
instrumentality:
(i) is an SES employee or
acting SES employee; or
(ii) holds an office or
position that is at a level equivalent to that of an SES employee; or
(b) who is authorised in writing by
the principal officer of the instrumentality to provide information under
Commonwealth information orders.
11 Subsection 4(1)
Insert:
arresting person means the person who arrests
the alleged offender.
12 Subsection 4(1)
Insert:
artificial conception procedure includes:
(a) artificial insemination; and
(b) the implantation of an embryo in
the body of a woman.
13 Subsection 4(1)
Insert:
birth includes stillbirth.
14 Subsection 4(1)
Insert:
captain, in relation to an aircraft or
vessel, means the person in charge or command of the aircraft or vessel.
15 Subsection 4(1)
Insert:
child:
(a) in Part VII, includes an
adopted child and a stillborn child; and
(b) in Subdivision E of
Division 6 of that Part, means a person who is under 18 (including a
person who is an adopted child).
16 Subsection 4(1)
Insert:
childbirth maintenance period, in relation to
the birth of a child, means the period that begins on the day mentioned in
paragraph (a) or (b) and ends 3 months after the child’s birth:
(a) if the mother:
(i) works in paid
employment; and
(ii) is advised by a
medical practitioner to stop working for medical reasons related to her
pregnancy; and
(iii) stops working after
being so advised and more than 2 months before the child is due to be born;
the period begins on the day on
which she stops working; or
(b) in any other case—the period
begins on the day that is 2 months before the child is due to be born.
18 Subsection 4(1)
Insert:
child maintenance provisions, in relation to
a parenting plan, has the meaning given by subsection 63C(5).
19 Subsection 4(1)
Insert:
child welfare law means a law of a State or
Territory prescribed, or included in a class of laws of a State or Territory
prescribed, for the purposes of this definition.
20 Subsection 4(1)
Insert:
child welfare officer, in relation to a State
or Territory, means:
(a) a person who, because he or she
holds, or performs the duties of, a prescribed office of the State or
Territory, has responsibilities in relation to a child welfare law of the State
or Territory; or
(b) a person authorised in writing by
such a person for the purposes of Part VII.
21 Subsection 4(1)
Insert:
child welfare provisions, in relation to a
parenting plan, has the meaning given by subsection 63C(4).
22 Subsection 4(1)
Insert:
Commonwealth information order has the
meaning given by subsection 67J(2).
23 Subsection 4(1)
Insert:
community service order has the meaning given
by subsection 70NFC(3).
24 Subsection 4(1)
Insert:
contravened an order, in Division 13A of
Part VII, has the meaning given by section 70NAC.
25 Subsection 4(1)
Insert:
de facto relationship means the
relationship between a man and a woman who live with each other as spouses on a
genuine domestic basis although not legally married to each other.
26 Subsection 4(1)
Insert:
Department, in Subdivision C of
Division 8 of Part VII, means a Department of State of the
Commonwealth.
27 Subsection 4(1)
Insert:
education includes apprenticeship or
vocational training.
28 Subsection 4(1)
Insert:
excluded order means:
(a) an interim order; or
(b) an order made in favour of a
person where:
(i) the order was made on
the application of the person; and
(ii) notice of making the
application was not served on any other person; and
(iii) no other person
appeared at the hearing of the application.
29 Subsection 4(1)
Insert:
family violence order means an order
(including an interim order) made under a prescribed law of a State or
Territory to protect a person from family violence.
30 Subsection 4(1)
Insert:
guardian, when used in Part VII in
relation to a child, includes a person who has been granted (whether alone or
jointly with another person or other persons) guardianship of the child under
the law of the Commonwealth or of a State or Territory.
31 Subsection 4(1)
Insert:
information about the child’s location, in
the context of a location order made or to be made by a court in relation to a
child, means information about:
(a) where the child is; or
(b) where a person, who the court has
reasonable cause to believe has the child, is.
32 Subsection 4(1)
Insert:
interests, when used in Part VII in
relation to a child, includes matters related to the care, welfare or
development of the child.
33 Subsection 4(1)
Insert:
location order has the meaning given by
subsection 67J(1).
34 Subsection 4(1)
Insert:
medical expenses includes medical, surgical,
dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy
expenses.
35 Subsection 4(1)
Insert:
medical practitioner means a person
registered or licensed as a medical practitioner under a law of a State or
Territory that provides for the registration or licensing of medical
practitioners.
36 Subsection 4(1)
Insert:
member of the family, in relation to a
person, has, for the purposes of the definition of step‑parent,
paragraphs 60CC(3)(j) and (k) and section 60CF, the meaning given by
subsection (1AB) of this section.
37 Subsection 4(1)
Insert:
order under this Act affecting children, in
relation to a court, means:
(a) a parenting order; or
(b) an injunction granted by the
court:
(i) under
section 68B; or
(ii) under section 114
in so far as the injunction is for the protection of a child; or
(c) an undertaking given to, and
accepted by, the court:
(i) that relates to, or to
the making of, an order or injunction referred to in paragraph (a) or (b)
or a community service order referred to in paragraph (f); or
(ii) that relates to a bond
referred to in paragraph (g); or
(d) a subpoena issued under the
applicable Rules of Court:
(i) that relates to, or to
the making of, an order or injunction referred to in paragraph (a) or (b)
or a community service order referred to in paragraph (f); or
(ii) that relates to a bond
referred to in paragraph (g);
being a subpoena issued to a
party to the proceedings for the order, injunction or bond, as the case may be;
or
(e) a registered parenting plan within
the meaning of subsection 63C(6); or
(f) a community service order made
under paragraph 70NFB(2)(a); or
(g) a bond entered into:
(i) under a parenting
order; or
(ii) under paragraph
70NFB(2)(b); or
(iii) for the purposes of
subsection 70NFG(6);
and includes an order,
injunction, plan or bond that:
(h) is an order under this Act
affecting children made by another court because of paragraph (a), (b),
(e) or (g); and
(i) has been registered in the first‑mentioned
court.
38 Subsection 4(1)
Insert:
parent, when used in Part VII in
relation to a child who has been adopted, means an adoptive parent of the
child.
39 Subsection 4(1)
Insert:
parentage testing order has the meaning given
by subsection 69W(1).
40 Subsection 4(1)
Insert:
parentage testing procedure means a medical
procedure prescribed, or included in a class of medical procedures prescribed,
for the purposes of this definition.
41 Subsection 4(1)
Insert:
parental responsibility, in Part VII,
has the meaning given by section 61B.
43 Subsection 4(1)
Insert:
pending, in Subdivision E of Division 6
of Part VII, has a meaning affected by section 65X.
44 Subsection 4(1)
Insert:
prescribed adopting parent, in relation to a
child, means:
(a) a parent of the child; or
(b) the spouse of, or a person in a
de facto relationship with, a parent of the child; or
(c) a parent of the child and either
his or her spouse or a person in a de facto relationship with the parent.
45 Subsection 4(1)
Insert:
prescribed child welfare authority, in
relation to abuse of a child, means:
(a) if the child is the subject of
proceedings under Part VII in a State or Territory—an officer of the State
or Territory who is responsible for the administration of the child welfare
laws of the State or Territory, or some other prescribed person; or
(b) if the child is not the subject of
proceedings under Part VII—an officer of the State or Territory in which
the child is located or is believed to be located who is responsible for the
administration of the child welfare laws of the State or Territory, or some
other prescribed person.
46 Subsection 4(1)
Insert:
primary order means an order under this Act
affecting children and includes such order as varied.
47 Subsection 4(1)
Insert:
principal officer, when used in Subdivision C
of Division 8 of Part VII in relation to a Commonwealth
instrumentality, means:
(a) if the regulations declare an
office to be the principal office in respect of the instrumentality—the person
holding, or performing the duties of, that office; or
(b) the person who constitutes the
instrumentality or who is entitled to preside at any meeting of the
instrumentality, or of its governing body, at which the person is present.
48 Subsection 4(1)
Insert:
professional ethics includes:
(a) rules of professional conduct; and
(b) rules of professional etiquette;
and
(c) a code of ethics; and
(d) standards of professional conduct.
49 Subsection 4(1)
Insert:
reasonable excuse for contravening an order
includes the meanings given by section 70NAE.
50 Subsection 4(1)
Insert:
recovery order has the meaning given by
section 67Q.
51 Subsection 4(1) (definition of Registry Manager)
Repeal the definition, substitute:
Registry Manager:
(a) except in Subdivision C of
Division 8 of Part VII and section 67Z, means:
(i) in relation to the
Family Court—the Registry Manager of a Registry of the Court; and
(ii) in relation to a court
other than the Family Court—the principal officer of the court or any other
appropriate officer of the court; and
(b) in Subdivision C of
Division 8 of Part VII, means:
(i) in relation to the
Family Court—the Registry Manager of the Registry of the Court; and
(ii) in relation to the
Family Court of Western Australia—the Principal Registrar, a Registrar or a
Deputy Registrar, of the court; and
(iii) in relation to any
other court—the principal officer of the court.
52 Subsection 4(1)
Insert:
State, in Subdivision B of Division 13
of Part VII, includes a Territory.
53 Subsection 4(1)
Insert:
step‑parent, in relation to a child,
means a person who:
(a) is not a parent of the child; and
(b) is or has been married to a parent
of the child; and
(c) treats, or at any time during the
marriage treated, the child as a member of the family formed with the parent.
54 After subsection 4(1)
Insert:
(1AB) For the purposes of:
(a) the definitions of family
violence and step‑parent in subsection (1);
and
(b) paragraphs 60CC(3)(j) and (k); and
(c) section 60CF;
a person (the first person) is a member
of the family of another person (the second person) if:
(d) the first person is or has been
married to, or in a de facto relationship with, the second person; or
(e) the first person is or has been a
relative of the second person (as defined in subsection (1AC)); or
(f) an order under this Act described
in subparagraph (i) or (ii) is or was (at any time) in force:
(i) a parenting order
(other than a child maintenance order) that relates to a child who is either
the first person or the second person and that is in favour of the other of those
persons;
(ii) an order providing for
the first person or the second person to have custody or guardianship of, or a
right of access to, the other of those persons; or
(g) an order under a law of a State or
Territory described in subparagraph (i) or (ii) is or was (at any time) in
force:
(i) an order determining
that the first person or the second person is or was to live with the other of
those persons, or is or was to have custody or guardianship of the other of
those persons;
(ii) an order providing for
contact between the first person and the second person, or for the first person
or the second person to have a right of access to the other of those persons;
or
(h) the first person ordinarily or
regularly resides or resided with the second person, or with another member of
the family of the second person; or
(i) the first person is or has been a
member of the family of a child of the second person.
(1AC) For the purposes of subsection (1AB), a
relative of a person is:
(a) a father, mother, grandfather,
grandmother, step‑father or step‑mother of the person; or
(b) a son, daughter, grandson, grand‑daughter,
step‑son or step‑daughter of the person; or
(c) a brother, sister, half‑brother,
half‑sister, step‑brother or step‑sister of the person; or
(d) an uncle or aunt of the person; or
(e) a nephew or niece of the person;
or
(f) a cousin of the person; or
(g) if the person is or was married—in
addition to paragraphs (a) to (f), a person who is or was a relative, of
the kind described in any of those paragraphs, of the person’s spouse; or
(h) if the person is or was in a
de facto relationship with another person—in addition to
paragraphs (a) to (f), a person who would be a relative of a kind
described in any of those paragraphs if the persons in that de facto
relationship were or had been married to each other.
55 Section 60D
Repeal the section.
56 Subsection 65R(1)
Omit “(1)”.
57 Subsection 65R(2)
Repeal the subsection.
58 Section 67H
Repeal the section.
59 Section 70B
Repeal the section.
60 Section 70F
Repeal the section.
61 Subsection 70L(1) (paragraph (b) of the definition
of Australian child order)
Omit “as defined in section 70B”.
62 Subsection 92(1A)
Omit “(within the meaning of Part VII)”.
63 Paragraph 109A(1)(a)
Omit “(within the meaning of Division 13A of
Part VII)”.
64 Subsection 112AP(9) (definition of order under this
Act)
Omit “within the meaning of Division 13A of Part VII”.
Part 2—Savings
65 Definitions
In this Part:
commencement means the commencement of this
Schedule.
new Act means the Family Law Act 1975 as in
force after commencement.
old Act means the Family Law Act 1975 as in
force immediately before commencement.
66 Saving of regulations
Despite the repeal of a provision of the old Act specified in the
following table, regulations that:
(a) were made for the purposes of that
provision of the old Act; and
(b) were in force immediately before
commencement;
continue to have effect on and after commencement as if those
regulations had been made for the purposes of the corresponding provision of
the new Act that is specified in the table in relation to that provision of the
old Act:
|
Saving regulations made
under provisions of old Act
|
|
Item
|
Provision of old Act
|
Corresponding provision
of new Act
|
|
1
|
definition of child welfare law in
subsection 60D(1)
|
definition of child welfare law in
subsection 4(1)
|
|
2
|
definition of child welfare officer in
subsection 60D(1)
|
definition of child welfare officer in
subsection 4(1)
|
|
3
|
definition of family violence order in
subsection 60D(1)
|
definition of family violence order in
subsection 4(1)
|
|
4
|
definition of parentage testing procedure in
subsection 60D(1)
|
definition of parentage testing procedure in
subsection 4(1)
|
|
5
|
paragraph (a) or (b) of the definition of prescribed
child welfare authority in subsection 60D(1)
|
paragraph (a) or (b) of the definition of prescribed
child welfare authority in subsection 4(1)
|
|
6
|
definition of principal officer in
section 67H
|
definition of principal officer in
subsection 4(1)
|
Schedule 10—Orders of
non‑judicial officers of State courts of summary jurisdiction
Family Law Act 1975
1 At the end of subsection 39(6)
Add:
Note: Under section 39A of the Judiciary Act
1903, the jurisdiction conferred by this subsection on a State court of
summary jurisdiction may only be exercised by certain judicial officers of the
court.
2 At the end of subsection 69J(1)
Add:
Note: Under section 39A of the Judiciary Act
1903, the jurisdiction conferred by this subsection on a State court of
summary jurisdiction may only be exercised by certain judicial officers of the
court.
3 After Part XIVA
Insert:
Part XIVB—Orders of non‑judicial officers of State courts of
summary jurisdiction
114MG
Definitions
(1) In this Part:
federal family jurisdiction means
jurisdiction in relation to matters arising under this Act.
ineffective order has the meaning given by
section 114MH.
liability includes a duty or obligation.
non‑judicial officer of a court of
summary jurisdiction of a State means an officer of the court who is not a
magistrate, or arbitrator, of the kind referred to in paragraph 39(2)(d) of the
Judiciary Act 1903.
proceedings includes an initiating
application.
proceedings for the order in relation to an
ineffective order means the proceedings in or in relation to which the order
was purportedly made.
right includes an interest or status.
(2) A reference in this Part to an
ineffective order of a court of summary jurisdiction is a reference to an
ineffective order that a non‑judicial officer of that court purported to
make.
114MH
Meaning of ineffective order
(1) A reference in this Part to an ineffective
order is a reference to a purported order described in
subsection (2). This subsection has effect subject to subsection (3)
as it affects the meaning of a reference to an ineffective order in the context
of a particular case.
(2) An order that a non‑judicial
officer of a court of summary jurisdiction of a State has purported to make is
an ineffective order if:
(a) the officer purported to make the
order before the commencement of this Part; and
(b) the order was made in the
exercise, or purported exercise, of the court’s federal family jurisdiction.
(3) If a court, or a non‑judicial
officer of a court of summary jurisdiction of a State, has purported to affirm,
vary, revoke, set aside, reverse, revive or suspend an ineffective order, a
reference in this Part to the ineffective order is a reference to the order in
the form in which, and to the extent to which, it purports or purported to have
effect from time to time.
114MI Rights
and liabilities declared in certain cases
The rights and liabilities of all
persons are, by force of this section, declared to be, and always to have been,
the same as if each ineffective order of a court of summary jurisdiction had
been an order made by that court, in the exercise of its federal family
jurisdiction, in or in relation to the proceedings for the order.
114MJ
Effect of declared rights and liabilities
(1) A right or liability conferred, imposed
or affected by section 114MI in relation to an ineffective order of a
court of summary jurisdiction:
(a) is exercisable or enforceable; and
(b) is to be regarded as always having
been exercisable or enforceable;
as if it were a right or liability conferred, imposed or
affected by an order made by that court, in the exercise of its federal family
jurisdiction, in or in relation to the proceedings for the order.
(2) The rights and liabilities conferred,
imposed or affected by section 114MI include (but are not limited to) the
right of a person who was a party to the proceeding or purported proceeding in
which the ineffective order was made to appeal against that order.
(3) In this section:
enforceable includes able to be dealt with by
proceedings under:
(a) Division 13A of
Part VII; or
(b) Division 2 of
Part XIIIA;
relating to a contravention of an order.
114MK
Effect of things done or omitted to be done under or in relation to rights and
liabilities
(1) Any act or thing done or omitted to be
done before or after the commencement of this Part under or in relation to a
right or liability conferred, imposed or affected by section 114MI in
relation to an ineffective order of a court of summary jurisdiction:
(a) has the same effect, and gives
rise to the same consequences, for the purposes of any written or other law;
and
(b) is to be regarded as always having
had the same effect, and given rise to the same consequences, for the purposes
of any written or other law;
as if it were done or omitted to be done to give effect
to, or under the authority of, or in reliance on, an order made by that court,
in the exercise of its federal family jurisdiction, in or in relation to the
proceedings for the order.
(2) Subject to subsection (3), for the
purposes of an enforcement law (see subsection (4)), any act or thing done
or omitted to be done before or after the commencement of this Part:
(a) gives rise to the same
consequences; and
(b) is to be regarded as always having
given rise to the same consequences;
as if each ineffective order of a court of summary
jurisdiction were an order made by that court, in the exercise of its federal
family jurisdiction, in or in relation to the proceedings for the order.
(3) If, before the commencement of this Part,
a court purported to convict a person of an offence against an enforcement law
on the basis that an ineffective order was a valid order, nothing in this
section is to be taken to validate or confirm that conviction.
(4) In this section:
enforcement law means a provision of a law of
the Commonwealth, other than a law relating to contempt of court, that sets out
a consequence for a person if the person:
(a) contravenes; or
(b) 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 of courts).
114ML
Powers of courts in relation to declared rights and liabilities
(1) A court may vary, revoke, set aside,
revive or suspend a right or liability conferred, imposed or affected by
section 114MI in relation to an ineffective order of a court of summary
jurisdiction as if it were a right or liability conferred, imposed or affected
by an order made by that court of summary jurisdiction, in the exercise of its
federal family jurisdiction, in or in relation to the proceedings for the
order.
(2) In addition to its powers under
subsection (1), a court (the review court) also has power to
make an order achieving any other result that could have been achieved if:
(a) the ineffective order had been an
order made by a court of summary jurisdiction, in the exercise of its federal
family jurisdiction, in or in relation to the proceedings for the order; and
(b) the review court had been
considering whether:
(i) to vary, revoke, set
aside, revive or suspend that order; or
(ii) to extend the time for
the doing of anything in relation to the proceedings for the order; or
(iii) to grant a stay of the
proceedings for the order.
114MM
Proceedings for contempt
If (whether before, at or after the
commencement of this Part) a person has:
(a) interfered with a right conferred
or affected by section 114MI in relation to an ineffective order of a
court of summary jurisdiction; or
(b) failed to satisfy or comply with a
liability imposed or affected by section 114MI in relation to an
ineffective order of a court of summary jurisdiction;
the interference or failure is, and is taken always to
have been, a matter that can be dealt with in the same manner as if the
interference or failure had been in relation to a right conferred or affected,
or a liability imposed or affected, by a valid judgment of that court.
114MN
Evidence
The court record, or a copy of the court
record, of an ineffective order may be adduced in evidence to show the existence,
nature and extent of each right or liability conferred, imposed or affected by
section 114MI.
114MO
Part does not apply to certain orders
Nothing in this Part applies to an order
declared to be invalid by a court before the commencement of this Part.
114MP
Jurisdiction of courts
(1) Subject to subsection (3):
(a) jurisdiction is conferred on the
Family Court and the Federal Magistrates Court; and
(b) the Family Court of a State is
invested with federal jurisdiction;
with respect to matters arising under this Part.
(2) Subject to subsection (3), each
court of summary jurisdiction of each State is invested with federal
jurisdiction, and jurisdiction is conferred on each court of summary
jurisdiction of each Territory, with respect to matters arising under this
Part.
(3) A court has jurisdiction in respect of a
matter arising under this Part in relation to an ineffective order that relates
to a matter arising under this Act (the initial matter) only if
the court has jurisdiction in respect of the initial matter. The court’s
jurisdiction under this Part is subject to the same conditions and limitations
as would apply to it in dealing with the initial matter.