An Act relating to Marriage and to Divorce and Matrimonial
Causes and, in relation thereto and otherwise, Parental Responsibility for Children,
and to financial matters arising out of the breakdown of de facto
relationships and to certain other Matters
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Family
Law Act 1975.
2
Commencement [see
Note 1]
This Act shall come into operation on a
date to be fixed by Proclamation.
3
Repeal and saving
(1) The Matrimonial Causes Act 1959,
the Matrimonial Causes Act 1965 and the Matrimonial Causes Act 1966 are
repealed.
(2) Notwithstanding the repeal effected by subsection (1):
(a) the validity of a decree made
before the commencement of the Matrimonial Causes Act 1959 by virtue of
the Imperial Act entitled the Matrimonial Causes (War Marriages) Act, 1944 or
Part I of the Matrimonial Causes (War Marriages) Act 1947 of New Zealand
and in force immediately before the commencement of this Act shall continue to
be recognized in all courts in Australia;
(b) a decree of the Supreme Court of a
State or Territory made before the commencement of the Matrimonial Causes
Act 1959 in the exercise of jurisdiction invested or conferred by the Matrimonial
Causes Act 1945, or that Act as amended by the Matrimonial Causes Act
1955, and in force immediately before the commencement of this Act shall
continue to have effect throughout Australia; and
(c) a decree of the Supreme Court, or
of a court of summary jurisdiction, of a State or Territory:
(i) made before the
commencement of this Act in the exercise of jurisdiction invested or conferred
by the repealed Act, or in a matrimonial cause or proceedings for a separation
order instituted under the law of that State or Territory, being a decree that
was in force immediately before the commencement of this Act; or
(ii) made after the
commencement of this Act in proceedings to which subsection 9(1) applied;
shall have, or continue to have,
effect throughout Australia, and, except in the case of:
(iii) a decree of nullity of
marriage made on the ground that the marriage was voidable;
(iv) a decree of judicial
separation;
(v) a decree of restitution
of conjugal rights;
(vi) a decree of jactitation
of marriage; or
(vii) a separation order;
this Act applies to and in
relation to the decree as if the decree had been made under this Act.
(3) For the purposes of paragraph (2)(c),
a purported decree to which section 5 of the Matrimonial Causes Act
1971 applied made in a State shall be deemed to be a decree of the Supreme
Court of that State made in the exercise of jurisdiction invested by the
repealed Act.
4
Interpretation
(1) In this Act, the standard Rules of Court
and the related Federal Magistrates Rules, unless the contrary intention
appears:
Aboriginal child means a child who is a
descendant of the Aboriginal people of Australia.
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.
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.
Accreditation Rules means regulations made
under section 10A.
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.
alleged contravention, in Subdivision D of
Division 6 of Part VII, means the alleged contravention because of
which the alleged offender is arrested.
alleged offender, in Subdivision D of Division 6
of Part VII, means the person who is arrested.
appeal includes an application for a re‑hearing.
Appeal Division means the Appeal Division of
the Family Court.
applicable Rules of Court:
(a) in relation to the Federal
Magistrates Court—means the related Federal Magistrates Rules; and
(b) in relation to any other
court—means the standard Rules of Court.
applicant includes a cross‑applicant
and, in relation to proceedings for dissolution of marriage instituted before
the commencement of this Act, includes a petitioner or cross‑petitioner.
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.
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.
appropriate officer, when used in Division 5
of Part III in relation to the Family Court, means:
(a) the Chief Executive Officer of the
Family Court; or
(b) any other officer of the Family
Court specified in writing by the Chief Executive Officer for the purposes of
this definition.
arbitration has the meaning given by
section 10L.
arbitrator has the meaning given by
section 10M.
arresting person means the person who arrests
the alleged offender.
artificial conception procedure includes:
(a) artificial insemination; and
(b) the implantation of an embryo in
the body of a woman.
audio link means facilities (for example,
telephone facilities) that enable audio communication between persons in different
places.
Australia includes Norfolk Island.
bankruptcy trustee, in relation to a
bankrupt, means the trustee of the bankrupt’s estate.
birth includes stillbirth.
breakdown:
(a) in relation to a marriage, does
not include a breakdown of the marriage by reason of death; and
(b) in relation to a de facto
relationship, does not include a breakdown of the relationship by reason of
death.
captain, in relation to an aircraft or
vessel, means the person in charge or command of the aircraft or vessel.
Chief Executive Officer means the Chief
Executive Officer of the Family Court.
Note: The Chief Executive Officer is appointed under
section 38C. A person is appointed to act as the Chief Executive Officer
under section 38M.
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).
child: Subdivision D of Division 1 of
Part VII affects the situations in which a child is a child of a person or
is a child of a marriage or other relationship.
Note: In determining if a child is the child of a
person within the meaning of this Act, it is to be assumed that Part VII
extends to all States and Territories.
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.
child maintenance order has the meaning given
by subsection 64B(5).
child maintenance provisions, in relation to
a parenting plan, has the meaning given by subsection 63C(5).
child of a marriage includes a child who is,
under subsection 60F(1) or (2), a child of a marriage, but does not include a
child who has, under subsection 60F(3), ceased to be a child of a marriage.
child‑related proceedings has the
meaning given by section 69ZM.
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.
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.
child welfare provisions, in relation to a
parenting plan, has the meaning given by subsection 63C(4).
Commonwealth information order has the
meaning given by subsection 67J(2).
Commonwealth instrumentality means a body or
authority established for a public purpose by or under a law of the
Commonwealth.
community service order has the meaning given
by subsection 70NFC(3).
contravened an order, in Division 13A of
Part VII, has the meaning given by section 70NAC.
court, in relation to any proceedings, means
the court exercising jurisdiction in those proceedings by virtue of this Act.
debtor subject to a personal insolvency agreement
has the meaning given by section 5.
decree means decree, judgment or order and
includes:
(a) an order dismissing an
application; or
(b) a refusal to make a decree or
order.
de facto financial cause means:
(a) proceedings between the parties to
a de facto relationship with respect to the maintenance of one of them
after the breakdown of their de facto relationship; or
(b) proceedings between:
(i) a party to a
de facto relationship; and
(ii) the bankruptcy trustee
of a bankrupt party to the de facto relationship;
with respect to the maintenance
of the first‑mentioned party after the breakdown of the de facto
relationship; or
(c) proceedings between the parties to
a de facto relationship with respect to the distribution, after the
breakdown of the de facto relationship, of the property of the parties or
either of them; or
(d) proceedings between:
(i) a party to a
de facto relationship; and
(ii) the bankruptcy trustee
of a bankrupt party to the de facto relationship;
with respect to the
distribution, after the breakdown of the de facto relationship, of any
vested bankruptcy property in relation to the bankrupt party; or
(e) without limiting any of the
preceding paragraphs, proceedings with respect to a Part VIIIAB financial
agreement that are between any combination of:
(i) the parties to that
agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); or
(f) third party proceedings (as
defined in section 4B) to set aside a Part VIIIAB financial
agreement; or
(g) any other proceedings (including
proceedings with respect to the enforcement of a decree or the service of
process) in relation to concurrent, pending or completed proceedings of a kind
referred to in any of the preceding paragraphs.
de facto property settlement or maintenance
proceedings means proceedings with respect to:
(a) the distribution of the property
of the parties to a de facto relationship or of either of them; or
(b) the distribution of the vested
bankruptcy property in relation to a bankrupt party to a de facto
relationship; or
(c) the maintenance of a party to a
de facto relationship.
de facto relationship has the meaning
given by section 4AA.
Department, in Subdivision C of
Division 8 of Part VII, means a Department of State of the
Commonwealth.
distribute:
(a) in relation to:
(i) property, and
financial resources, of the parties to a de facto relationship or either
of them; or
(ii) vested bankruptcy
property in relation to a bankrupt party to a de facto relationship;
includes conferring rights or
obligations in relation to the property or financial resources; and
(b) in relation to a Part VIIIAB
financial agreement, has a meaning affected by subsection 90UI(3).
divorce means the termination of a marriage
otherwise than by the death of a party to the marriage.
Note: Annulment does not involve the termination of
a marriage but simply a declaration that a purported marriage is in fact void.
divorce or validity of
marriage proceedings means:
(a) proceedings between the parties to
a marriage, or by the parties to a marriage, for:
(i) a divorce order in
relation to the marriage; or
(ii) a decree of nullity of
marriage; or
(b) proceedings for a declaration as
to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise.
DPP means the Director of Public
Prosecutions.
education includes apprenticeship or
vocational training.
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.
family consultant has the meaning given by
section 11B.
family counselling has the meaning given by
section 10B.
family counsellor has the meaning given by
section 10C.
family dispute resolution has the meaning
given by section 10F.
family dispute resolution practitioner has
the meaning given by section 10G.
Family Law Magistrate of Western Australia
means a person who holds office concurrently:
(a) as a magistrate under the Magistrates
Court Act 2004 of Western Australia; and
(b) as the Principal Registrar, or as
a Registrar, of the Family Court of Western Australia.
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.
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.
financial agreement means an agreement that
is a financial agreement under section 90B, 90C or 90D, but does not
include an ante‑nuptial or post‑nuptial settlement to which section 85A
applies.
financial matters means:
(a) in relation to the parties to a
marriage—matters with respect to:
(i) the maintenance of one
of the parties; or
(ii) the property of those
parties or of either of them; or
(iii) the maintenance of
children of the marriage; or
(b) in relation to the parties to a
de facto relationship—any or all of the following matters:
(i) the maintenance of one
of the parties;
(ii) the distribution of
the property of the parties or of either of them;
(iii) the distribution of
any other financial resources of the parties or of either of them.
financial or Part VII proceedings means
proceedings (being, unless the context otherwise requires, proceedings under
this Act) of a kind referred to in any of paragraphs (c) to (eb) of the
definition of matrimonial cause in this subsection or proceedings
under Part VII.
forfeiture application means an application
for a forfeiture order under the Proceeds of Crime Act 2002.
forfeiture order means a forfeiture order
under the Proceeds of Crime Act 2002.
Full Court
means:
(a) 3 or more Judges of the Family
Court sitting together, where a majority of those Judges are members of the
Appeal Division; or
(b) in relation to particular
proceedings:
(i) 3 or more Judges of
the Family Court sitting together, where, at the commencement of the hearing of
the proceedings, a majority of those Judges were members of the Appeal
Division; or
(ii) 2 Judges of the Family
Court sitting together, where those Judges are permitted, by subsection 28(4),
to complete the hearing and determination, or the determination, of those
proceedings.
General Division means the General Division
of the Family Court.
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.
income tested pension, allowance or benefit
means a pension, allowance or benefit prescribed, or included in a class of
pensions, allowances or benefits prescribed, for the purposes of this
definition.
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).
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.
interests, when used in Part VII in
relation to a child, includes matters related to the care, welfare or
development of the child.
lawyer means a person enrolled as a legal
practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or
Territory.
location order has the meaning given by
subsection 67J(1).
made, in relation to a decree, being a
judgment, means given.
made in favour, in relation to a parenting
order (other than a child maintenance order), has the meaning given by
subsection 64B(6).
maintenance agreement means an agreement in
writing made, whether before or after the commencement of this Act and whether
within or outside Australia, between the parties to a marriage, being an
agreement that makes provision with respect to financial matters, whether or
not there are other parties to the agreement and whether or not it also makes
provision with respect to other matters, and includes such an agreement that
varies an earlier maintenance agreement.
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.
matrimonial cause means:
(a) proceedings between the parties to
a marriage, or by the parties to a marriage, for:
(i) a divorce order in
relation to the marriage; or
(ii) a decree of nullity of
marriage; or
(b) proceedings for a declaration as
to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a
marriage;
by decree or otherwise; or
(c) proceedings between the parties to
a marriage with respect to the maintenance of one of the parties to the
marriage; or
(caa) proceedings between:
(i) a party to a marriage;
and
(ii) the bankruptcy trustee
of a bankrupt party to the marriage;
with respect to the maintenance
of the first‑mentioned party; or
(ca) proceedings between the parties to
a marriage with respect to the property of the parties to the marriage or
either of them, being proceedings:
(i) arising out of the
marital relationship;
(ii) in relation to
concurrent, pending or completed divorce or validity of marriage proceedings
between those parties; or
(iii) in relation to the
divorce of the parties to that marriage, the annulment of that marriage or the
legal separation of the parties to that marriage, being a divorce, annulment or
legal separation effected in accordance with the law of an overseas
jurisdiction, where that divorce, annulment or legal separation is recognised
as valid in Australia under section 104; or
(cb) proceedings between:
(i) a party to a marriage;
and
(ii) the bankruptcy trustee
of a bankrupt party to the marriage;
with respect to any vested
bankruptcy property in relation to the bankrupt party, being proceedings:
(iii) arising out of the
marital relationship; or
(iv) in relation to
concurrent, pending or completed divorce or validity of marriage proceedings
between the parties to the marriage; or
(v) in relation to the
divorce of the parties to the marriage, the annulment of the marriage or the
legal separation of the parties to the marriage, being a divorce, annulment or
legal separation effected in accordance with the law of an overseas
jurisdiction, where that divorce, annulment or legal separation is recognised
as valid in Australia under section 104; or
(d) proceedings between the parties to
a marriage for the approval by a court of a maintenance agreement or for the
revocation of such an approval or for the registration of a maintenance
agreement; or
(e) proceedings
between the parties to a marriage for an order or injunction in circumstances
arising out of the marital relationship (other than proceedings under a law of
a State or Territory prescribed for the purposes of section 114AB); or
(ea) proceedings between:
(i) the parties to a
marriage; or
(ii) if one of the parties
to a marriage has died—the other party to the marriage and the legal personal
representative of the deceased party to the marriage;
being proceedings:
(iii) for the enforcement
of, or otherwise in relation to, a maintenance agreement that has been approved
under section 87 and the approval of which has not been revoked;
(iv) in relation to a
maintenance agreement the approval of which under section 87 has been
revoked; or
(v) with
respect to the enforcement under this Act or the applicable Rules of Court of a
maintenance agreement that is registered in a court under section 86 or an
overseas maintenance agreement that is registered in a court under regulations
made pursuant to section 89; or
(eaa) without limiting any of the
preceding paragraphs, proceedings with respect to a financial agreement that
are between any combination of:
(i) the parties to that
agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); or
(eab) third party proceedings (as defined
in section 4A) to set aside a financial agreement; or
(eb) proceedings with respect to the
enforcement of a decree made under the law of an overseas jurisdiction in
proceedings of a kind referred to in paragraph (c); or
(f) any other proceedings (including
proceedings with respect to the enforcement of a decree or the service of
process) in relation to concurrent, pending or completed proceedings of a kind
referred to in any of paragraphs (a) to (eb), including proceedings of
such a kind pending at, or completed before, the commencement of this Act.
medical expenses includes medical, surgical,
dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy
expenses.
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.
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.
non‑referring State
de facto financial law means a law that:
(a) is a law of a State that is not a
participating jurisdiction; and
(b) relates to financial matters
relating to the parties to de facto relationships arising out of the
breakdown of those de facto relationships.
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.
ordinarily resident includes habitually
resident.
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).
overseas jurisdiction means a country, or
part of a country, outside Australia.
overseas maintenance agreement means a
maintenance agreement that has force and effect in a prescribed overseas
jurisdiction by reason of the registration of the agreement, or the taking of
any other action in relation to the agreement, under the law of that
jurisdiction and includes an agreement with respect to the maintenance of an ex‑nuptial
child that would be covered by the foregoing provisions of this definition if
the child were a child of the marriage of the parties to the agreement.
parent, when used in Part VII in
relation to a child who has been adopted, means an adoptive parent of the
child.
parentage testing order has the meaning given
by subsection 69W(1).
parentage testing procedure means a medical
procedure prescribed, or included in a class of medical procedures prescribed,
for the purposes of this definition.
parental responsibility, in Part VII,
has the meaning given by section 61B.
parenting order has the meaning given by
subsection 64B(1).
parenting plan has the meaning given by
subsection 63C(1).
participating jurisdiction has the meaning
given by subsection 90RA(1).
Part VIIIAB financial agreement means an
agreement:
(a) made under section 90UB, 90UC
or 90UD; or
(b) covered by section 90UE.
Part VIIIAB proceedings means:
(a) proceedings under Part VIIIAB
for orders with respect to:
(i) the maintenance of a
party to a de facto relationship; or
(ii) the property of the
parties to a de facto relationship or of either of them; or
(b) proceedings in relation to a
Part VIIIAB financial agreement;
but does not include any proceedings specified in the
regulations for the purposes of this definition.
Part VIIIAB termination agreement means
an agreement made under paragraph 90UL(1)(b).
Part VIIIA proceedings means proceedings
in relation to a financial agreement.
Part VIIIB proceedings means:
(a) proceedings in relation to a
superannuation agreement (within the meaning of Part VIIIB); or
(b) proceedings in relation to a
payment split or payment flag (within the meaning of that Part); or
(c) any other proceedings under that
Part.
Part VIII
proceedings means proceedings under Part VIII for orders with
respect to spousal maintenance or the property of parties to a marriage, but
does not include any proceedings specified in the regulations for the purposes
of this definition.
party to a de facto relationship means a
person who lives or has lived in a de facto relationship.
pending, in Subdivision E of Division 6
of Part VII, has a meaning affected by section 65X.
personal insolvency agreement has the same
meaning as in the Bankruptcy Act 1966.
police officer
means:
(a) a member or special member of the
Australian Federal Police; or
(b) a member, however described, of
the police force of a State or Territory.
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.
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.
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.
prescribed overseas jurisdiction means any
country, or part of a country, outside Australia that is declared by the
regulations to be a prescribed overseas jurisdiction for the purposes of the
provision in which the expression is used.
prescribed proceedings means:
(a) divorce or validity of marriage
proceedings; or
(b) proceedings in relation to
concurrent, pending or completed divorce or validity of marriage proceedings.
primary order means an order under this Act
affecting children and includes such order as varied.
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.
proceedings means a proceeding in a court,
whether between parties or not, and includes cross‑proceedings or an
incidental proceeding in the course of or in connexion with a proceeding.
proceedings for principal relief means
proceedings under this Act of a kind referred to in paragraph (a) or (b)
of the definition of matrimonial cause in this subsection.
proceeds of crime order means:
(a) a restraining order under the Proceeds
of Crime Act 2002; or
(b) a forfeiture order under the Proceeds
of Crime Act 2002.
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.
property means:
(a) in relation to the parties to a
marriage or either of them—means property to which those parties are, or that
party is, as the case may be, entitled, whether in possession or reversion; or
(b) in relation to the parties to a
de facto relationship or either of them—means property to which those
parties are, or that party is, as the case may be, entitled, whether in
possession or reversion.
property settlement or spousal maintenance
proceedings means proceedings with respect to:
(a) the property of the parties to a
marriage or either of them; or
(aa) the vested bankruptcy property in
relation to a bankrupt party to a marriage; or
(b) the maintenance of a party to a
marriage.
property settlement proceedings means:
(a) in relation to the parties to a
marriage—proceedings with respect to:
(i) the property of the
parties or either of them; or
(ii) the vested bankruptcy
property in relation to a bankrupt party to the marriage; or
(b) in relation to the parties to a
de facto relationship—proceedings with respect to:
(i) the property of the
parties or either of them; or
(ii) the vested bankruptcy
property in relation to a bankrupt party to the de facto relationship.
reasonable excuse for contravening an order
includes the meanings given by section 70NAE.
recovery order has the meaning given by
section 67Q.
referring State has the meaning given by subsections
90RA(2), (3), (4) and (5).
Registrar means:
(a) in relation to the Family Court—the
Principal Registrar, a Registrar, or a Deputy Registrar of the Court; and
(b) in relation to a court other than
the Family Court—the principal legal officer of the court or any other
appropriate officer of the court.
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.
related Federal Magistrates Rules means the
Rules of Court made under the Federal Magistrates Act 1999 to the extent
to which they relate to this Act.
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).
relevant property or financial arbitration
has the meaning given by subsection 10L(2).
repealed Act means the Matrimonial Causes
Act 1959.
section 13E arbitration has the meaning
given by subsection 10L(2).
section 90RD declaration means a declaration
under subsection 90RD(1).
section 106A proceedings means
proceedings under section 106A.
separation order means a decree, not being a
decree of dissolution or nullity of marriage or for a judicial separation,
having the effect of relieving a party to a marriage from any obligation to
cohabit with the other party to the marriage.
split court has the meaning given by
subsection 27(2).
spouse party means:
(a) in relation to a financial
agreement—a party to the agreement who is a party to the contemplated marriage,
marriage or former marriage to which the agreement relates; or
(b) in relation to a Part VIIIAB
financial agreement—a party to the agreement who is a party to the contemplated
de facto relationship, de facto relationship or former de facto
relationship to which the agreement relates.
standard Rules of Court means Rules of Court
made under this Act.
State, in Subdivision B of Division 13
of Part VII, includes a Territory.
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.
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 or a
de facto partner (within the meaning of section 60EA) of, a parent of
the child; and
(c) treats, or at any time while
married to, or a de facto partner of, the parent treated, the child as a
member of the family formed with the parent.
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.
Territory
includes:
(a) Norfolk Island;
(b) the Territory of Christmas Island;
(c) the
Territory of Cocos (Keeling) Islands;
but does not include any other external Territory.
third party, in relation to a financial
agreement or Part VIIIAB financial agreement, means a party to the agreement
who is not a spouse party.
this Act includes the regulations.
Torres Strait Islander child
means a child who is a descendant of the Indigenous inhabitants of the Torres
Strait Islands.
trustee, in relation to a personal insolvency
agreement, has the same meaning as in the Bankruptcy Act 1966.
vested bankruptcy property, in relation to a
bankrupt, means property of the bankrupt that has vested in the
bankruptcy trustee under the Bankruptcy Act 1966. For this purpose, property
has the same meaning as in the Bankruptcy Act 1966.
video link means facilities (for example,
closed‑circuit television facilities) that enable audio and visual
communication between persons in different places.
warrant issued under a provision of this Act
includes a warrant issued under the standard Rules of Court or the related
Federal Magistrates Rules.
(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.
(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.
(1A) In this Act, the standard Rules of Court
and the related Federal Magistrates Rules:
(a) a reference to the Family Court is
a reference to the Family Court of Australia; and
(b) a reference to a Family Court of a
State is a reference to a court to which section 41 applies.
(2) A reference in this Act, the standard
Rules of Court or the related Federal Magistrates Rules to a party to a
marriage includes a reference to a person who was a party to a marriage that
has been:
(a) terminated by divorce (in Australia
or elsewhere); or
(b) annulled (in Australia or
elsewhere); or
(c) terminated by the death of one
party to the marriage.
(2A) A reference in this Act, the standard Rules
of Court or the related Federal Magistrates Rules to a party to a de facto
relationship includes a reference to a person who was a party to a
de facto relationship that has broken down.
(3) To avoid doubt, for all purposes:
(a) jurisdiction under the standard
Rules of Court is taken to be jurisdiction under this Act; and
(b) jurisdiction under the related
Federal Magistrates Rules is taken to be jurisdiction under this Act; and
(c) proceedings under the standard
Rules of Court are taken to be proceedings under this Act; and
(d) proceedings under the related
Federal Magistrates Rules are taken to be proceedings under this Act; and
(e) an order (however described) made
by a court under the standard Rules of Court is taken to be an order made by
the court under this Act; and
(f) an order (however described) made
by a court under the related Federal Magistrates Rules is taken to be an order
made by the court under this Act.
(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.
4AA
De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto
relationship with another person if:
(a) the persons are not legally
married to each other; and
(b) the persons are not related by
family (see subsection (6)); and
(c) having regard to all the
circumstances of their relationship, they have a relationship as a couple
living together on a genuine domestic basis.
Paragraph (c) has effect subject to
subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or
all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their
common residence;
(c) whether a sexual relationship
exists;
(d) the degree of financial dependence
or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition
of their property;
(f) the degree of mutual commitment
to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or
Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects
of the relationship.
(3) No particular finding in relation to any
circumstance is to be regarded as necessary in deciding whether the persons have
a de facto relationship.
(4) A court determining whether a
de facto relationship exists is entitled to have regard to such matters,
and to attach such weight to any matter, as may seem appropriate to the court
in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can
exist between 2 persons of different sexes and between 2 persons of the same
sex; and
(b) a de facto relationship can
exist even if one of the persons is legally married to someone else or in another
de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1),
2 persons are related by family if:
(a) one is the child (including an
adopted child) of the other; or
(b) one is another descendant of the
other (even if the relationship between them is traced through an adoptive
parent); or
(c) they have a parent in common (who
may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is
declared void or has ceased to have effect.
4A
Third party proceedings to set aside financial agreement
(1) For the purposes of paragraph (eab)
of the definition of matrimonial cause in subsection 4(1), third
party proceedings means proceedings between:
(a) any combination of:
(i) the parties to a
financial agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); and
(b) any of the following:
(i) a creditor;
(ii) if a creditor is an
individual who has died—the legal personal representative of the creditor;
(iii) a government body
acting in the interests of a creditor;
being proceedings for the setting aside of the financial
agreement on the ground specified in paragraph 90K(1)(aa).
(1A) For the purposes of paragraph (eab) of
the definition of matrimonial cause in subsection 4(1), third
party proceedings also means proceedings between:
(a) any combination of:
(i) the parties to a
financial agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); and
(b) either:
(i) another person who is
a party to a de facto relationship with one of the spouse parties to the
financial agreement; or
(ii) the legal personal
representative of that other person if that person has died;
being proceedings for the setting aside of the financial
agreement on the ground specified in paragraph 90K(1)(ab).
(2) In this
section:
creditor
means:
(a) a creditor of a party to the
financial agreement; or
(b) a person who, at the commencement
of the proceedings, could reasonably have been foreseen by the court as being
reasonably likely to become a creditor of a party to the financial agreement.
government body
means:
(a) the
Commonwealth, a State or a Territory; or
(b) an official or authority of the
Commonwealth, a State or a Territory.
4B
Third party proceedings to set aside Part VIIIAB financial agreement
(1) For the purposes of paragraph (f) of
the definition of de facto financial cause in subsection
4(1), third party proceedings means proceedings between:
(a) any combination of:
(i) the parties to a
Part VIIIAB financial agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); and
(b) any of the following:
(i) a creditor;
(ii) if a creditor is an
individual who has died—the legal personal representative of the creditor;
(iii) a government body
acting in the interests of a creditor;
being proceedings for the setting aside of the
Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(b).
(2) For the purposes of paragraph (f) of
the definition of de facto financial cause in subsection
4(1), third party proceedings also means proceedings between:
(a) any combination of:
(i) the parties to a
Part VIIIAB financial agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); and
(b) either:
(i) another person who is
a party to a de facto relationship with one of the spouse parties to the
Part VIIIAB financial agreement; or
(ii) the legal personal
representative of that other person if that person has died;
being proceedings for the setting aside of the
Part VIIIAB financial agreement on the ground specified in paragraph
90UM(1)(c).
(3) For the purposes of paragraph (f) of
the definition of de facto financial cause in subsection
4(1), third party proceedings also means proceedings between:
(a) any combination of:
(i) the parties to a
Part VIIIAB financial agreement; and
(ii) the legal personal
representatives of any of those parties who have died;
(including a combination
consisting solely of parties or consisting solely of representatives); and
(b) either:
(i) another person who is
a party to a marriage with one of the spouse parties to the Part VIIIAB
financial agreement; or
(ii) the legal personal
representative of that other person if that person has died;
being proceedings for the setting aside of the
Part VIIIAB financial agreement on the ground specified in paragraph
90UM(1)(d).
(4) In this
section:
creditor means:
(a) a creditor of a party to the
Part VIIIAB financial agreement; or
(b) a person who, at the commencement
of the proceedings, could reasonably have been foreseen by the court as being
reasonably likely to become a creditor of a party to the Part VIIIAB
financial agreement.
government body
means:
(a) the
Commonwealth, a State or a Territory; or
(b) an official or authority of the
Commonwealth, a State or a Territory.
5
Debtor subject to a personal insolvency agreement
For the purposes of this Act, if:
(a) a person who is a debtor (within
the meaning of Part X of the Bankruptcy Act 1966) executes a
personal insolvency agreement; and
(b) the agreement has not ended
(within the meaning of the Bankruptcy Act 1966);
the person is a debtor subject to the personal insolvency
agreement.
6
Polygamous marriages
For the
purpose of proceedings under this Act, a union in the nature of a marriage
which is, or has at any time been, polygamous, being a union entered into in a
place outside Australia, shall be deemed to be a marriage.
7
Extension of Act to certain Territories
This Act extends to the following
Territories:
(a) Norfolk Island;
(b) the Territory of Christmas Island;
(c) the Territory of Cocos (Keeling) Islands.
7A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
8 Supersession
of existing laws
(1) After the commencement of this Act:
(a) proceedings by way of a
matrimonial cause shall not be instituted except under this Act; and
(b) proceedings by way of a
matrimonial cause instituted before the commencement of this Act shall not be
continued except in accordance with section 9.
(2) Proceedings for a decree of restitution
of conjugal rights, of jactitation of marriage or of judicial separation shall
not be instituted or continued after the commencement of this Act.
(3) Proceedings for a separation order shall
not be instituted after the commencement of this Act.
9
Transitional
(1) Subject to subsections (2) and (2A),
pending proceedings for a decree of dissolution of marriage or for a decree of
nullity of marriage on the ground that the marriage is voidable, and pending
proceedings for a separation order, may be continued and shall be dealt with as
if this Act had not been passed.
(2) Where the parties have lived separately
and apart for a continuous period of not less than 12 months immediately
preceding the date of commencement of this Act, pending proceedings for a
decree of dissolution of marriage shall, if either party so requests, be dealt
with as if they were proceedings instituted under this Act on the ground
referred to in section 48, and, in relation to proceedings in which such a
request is made, subsection 48(2) has effect as if the proceedings for
dissolution of marriage had been instituted by an application filed on the date
of commencement of this Act.
(2A) Where subsection (2)
does not apply but the parties have lived separately and apart for a continuous
period of not less than 12 months immediately preceding the date of making of
the request under this subsection, pending proceedings for a decree of
dissolution of marriage shall, if either party so requests, be dealt with as if
they were proceedings instituted under this Act on the ground referred to in
section 48, and, in relation to proceedings in which such a request is
made, subsection 48(2) has effect as if the proceedings for dissolution of
marriage had been instituted by an application filed on the date of making of
the request.
(3) Pending proceedings for a decree of
nullity of marriage on the ground that the marriage is void or proceedings of a
kind referred to in paragraph (b) of the definition of matrimonial
cause in subsection 4(1) may be continued and shall be dealt with as if
they were proceedings instituted under this Act.
(4) Pending proceedings constituting a
matrimonial cause, not being proceedings for principal relief, whether
instituted under the repealed Act or under the law of a State or Territory, may
be continued and shall be dealt with as if they were proceedings instituted
under this Act.
(5) Subsection 117(1) does not apply to
proceedings continued and dealt with under this section.
(6) Where, in any proceedings constituting a
matrimonial cause, a decree has been made before the commencement of this Act:
(a) any appeal in respect of that
decree may be continued or instituted;
(b) any new trial or re‑hearing
ordered upon the hearing of such an appeal, or upon an appeal heard before the
commencement of this Act, may be had and completed; and
(c) any decree may be made upon any
such appeal, new trial or re‑hearing, and, if a decree so made is a
decree nisi, the decree may become absolute;
as if this Act had not been passed.
(7) Where, in any proceedings constituting a
matrimonial cause, a decree nisi was made before the commencement of
this Act but did not become absolute before that date, the decree becomes
absolute upon:
(a) the expiration of 1 month from the
date of making of the decree;
(b) the expiration of 1 month from the
date of making of a relevant order under subsection 71(1) of the repealed Act
or section 55A of this Act; or
(c) the date of commencement of this
Act;
whichever is the latest.
(7A) Where, in any proceedings constituting a
matrimonial cause, being proceedings continued and dealt with in accordance
with subsection (1), a decree nisi was made on or after 5 January
1976 and before the date of commencement of this subsection, being a decree
that did not become absolute before that last‑mentioned date, or is made
on or after the date of commencement of this subsection, then:
(a) except in the case of a decree
made before the date of commencement of this subsection in respect of which a
relevant order was made under subsection 71(1) of the repealed Act before that
date—section 55A of this Act applies in relation to the decree; and
(b) the decree becomes absolute upon:
(i) the expiration of one
month from:
(A) in the
case of a decree in respect of which a relevant order was made under subsection
71(1) of the repealed Act before the date of commencement of this
subsection—the date of making of that order; or
(B) in any
other case—the date of making of a relevant order under section 55A of
this Act; or
(ii) the date of
commencement of this subsection;
whichever is the later.
(8) The law to be applied, and the practice
and the procedure to be followed, in and in relation to pending proceedings
that are continued as if this Act had not been passed shall be the same as if
this Act had not been passed.
(9) In this
section:
appeal
includes:
(a) an application for leave or
special leave to appeal;
(b) an application for a new trial or
for a re‑hearing; and
(c) an intervention.
pending proceedings means proceedings that
were instituted before the date of commencement of this Act but were not
completed before that date.
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 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
(1) 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, or Part VIIIAB proceedings
(other than proceedings relating to a Part VIIIAB financial agreement),
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 VIIIAB 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
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 or Part VIIIAB proceedings to
arbitration
(1) With the consent of all of the parties to
the proceedings, a court exercising jurisdiction in:
(a) Part VIII proceedings; or
(b) Part VIIIAB proceedings
(other than proceedings relating to a Part VIIIAB financial agreement);
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.
Part IV—The Family Court of Australia
Division 1—Interpretation
20
Interpretation
In this Part, unless the contrary
intention appears:
Chief Judge means the Chief Judge of the
Court, and includes the Deputy Chief Judge or a Judge Administrator if the
Deputy Chief Judge or Judge Administrator is for the time being performing the
duties and exercising the powers of the Chief Judge.
Court means the Family Court of Australia.
Deputy Chief Judge means the Deputy Chief
Judge of the Court.
Judge means a Judge of the Family Court
(including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a
Senior Judge).
Judge Administrator means a Judge
Administrator of the Court.
Principal Registrar means the Principal
Registrar of the Court.
Division 2—The Family Court of Australia
21
Creation of Court
(1) A Court, to be known as the Family Court
of Australia, is created by this Act.
(2) The Court is a superior court of record.
(3) The Court consists of:
(a) a Chief Judge, who shall be called
the Chief Justice of the Court;
(b) a Deputy Chief Judge, who shall be
called the Deputy Chief Justice of the Court; and
(c) Judge Administrators, Senior
Judges and other Judges, not exceeding, in total, such number as is prescribed.
(4) Regulations made pursuant to subsection (3)
shall take effect at the expiration of 7 sitting days after the regulations
have been laid before each House of the Parliament.
21A
Divisions of Court
For the purposes of the organization and
conduct of the business of the Court, the Court comprises 2 Divisions, namely,
the Appeal Division and the General Division.
21B
Arrangement of business of Court
(1) The Chief Judge is responsible for
ensuring the orderly and expeditious discharge of the business of the Court and
accordingly may, subject to this Act and to such consultation with the Judges
as is appropriate and practicable, make arrangements as to the Judge or Judges
who is or are to constitute the Court, or the Full Court, in particular matters
or classes of matters.
(2) The Deputy
Chief Judge shall assist the Chief Judge in the exercise of the functions conferred
on the Chief Judge by subsection (1).
(3) A Judge Administrator shall, in relation
to such part of Australia as is from time to time assigned by the Chief Judge,
assist the Chief Judge and the Deputy Chief Judge in the exercise of such of
the functions conferred on the Chief Judge by subsection (1) as are from
time to time so assigned.
Division 3—Judges
22
Appointment, removal and resignation of Judges
(1) A Judge:
(a) shall be appointed by the Governor‑General;
and
(b) shall not be removed except by the
Governor‑General, on an address from both Houses of the Parliament in the
same session praying for the Judge’s removal on the grounds of proved
misbehaviour or incapacity.
(2) A person shall not be appointed as a
Judge unless:
(a) the person is or has been a Judge
of another court created by the Parliament or of a court of a State or has been
enrolled as a legal practitioner of the High Court or of the Supreme Court of a
State or Territory for not less than 5 years; and
(b) by reason of training, experience
and personality, the person is a suitable person to deal with matters of family
law.
(2AA) The members of the Appeal Division of the
Court are the Chief Judge, the Deputy Chief Judge and such other Judges as are
assigned to the Appeal Division under this section.
(2AB) The Governor‑General may, in the
commission of appointment of a Judge or, with the consent of the Judge but not
otherwise, at a later time assign a Judge to the Appeal Division.
(2AC) The Governor‑General shall not assign
a Judge to the Appeal Division under subsection (2AB) if, as a result of
that assignment, the number of members of the Appeal Division assigned under
that subsection would exceed the prescribed number.
(2AF) A Judge (other than the Chief Judge or the
Deputy Chief Judge) who is not assigned to the Appeal Division shall be deemed
to be assigned to the General Division.
(2AFA) Where a person holding office as a Senior
Judge or Judge of the Court is appointed Deputy Chief Judge or a Judge
Administrator, the person retains that office as Senior Judge or Judge, as the
case may be, and may resign the office of Deputy Chief Judge or Judge
Administrator without resigning that first‑mentioned office.
(2AG) Notwithstanding anything contained in any
other Act, a person may hold office at the one time as a Judge of the Court and
as a Judge of a prescribed court or of 2 or more prescribed courts.
(2AH) In subsection (2AG), prescribed
court means:
(a) a court (other than the Court)
created by the Parliament; or
(b) the Supreme Court of the Northern
Territory.
(2A) A person may be appointed to the office of
Judge of the Family Court of Australia notwithstanding that he or she holds an
office of Judge of a Family Court of a State and may serve in that office of
Judge of the Family Court of Australia notwithstanding that he or she continues
to hold, and serve in, the office of Judge of the Family Court of that State.
(2B) If a person who holds office as a Judge of
the Family Court of Australia is appointed or serves as a Judge of a Family
Court of a State, the appointment or service shall not affect his or her tenure
of that office of Judge of the Family Court of Australia or his or her rank,
title, status, precedence, salary or annual allowance or other rights or privileges
as the holder of that office of Judge of the Family Court of Australia and, for
all purposes, his or her service as a Judge of the Family Court of that State
shall be taken to be service as the holder of that office of Judge of the
Family Court of Australia.
(3) A Judge may resign office by writing
under his or her hand addressed to the Governor‑General.
(3A) The resignation takes effect on:
(a) the day on which it is received by
the Governor‑General; or
(b) a later day specified in the
resignation document.
(4) A Judge or former Judge is entitled to be
styled “The Honourable”.
23
Seniority
(1) The Chief Judge is senior to all other
Judges of the Court.
(2) The Deputy Chief Judge is senior to all
other Judges of the Court other than the Chief Judge.
(3) Judges appointed as Judge Administrators
or assigned to the Appeal Division before, or not later than 3 months after,
the commencement of section 13 of the Family Court of Australia
(Additional Jurisdiction and Exercise of Powers) Act 1988 have seniority
next to the Deputy Chief Judge, and have such seniority in relation to each
other as they had immediately before that commencement.
(4) The remaining Judge Administrators and
Judges assigned to the Appeal Division have seniority next to the Judges to
whom subsection (3) applies according to the days on which their
appointments as Judge Administrators and their assignments to the Appeal
Division (whichever first occurred) took effect.
(5) Where, because 2 or more appointments as
Judge Administrator and assignments to the Appeal Division took effect on the
same day, subsection (4) does not determine priority between the Judges
concerned, those Judges have such seniority in relation to each other as is
assigned to them by the Governor‑General.
(6) The Senior Judges not assigned to the
Appeal Division have seniority next to the Judges to whom subsection (4)
applies according to the days on which their appointments as Senior Judges took
effect.
(7) Where, because 2 or more commissions of
appointment as Senior Judge took effect on the same day, subsection (6)
does not determine seniority between the Senior Judges concerned, those Judges
have such seniority in relation to each other as is assigned to them by the
Governor‑General.
(8) The Judges
who are not Judge Administrators or Senior Judges and are not assigned to the
Appeal Division have seniority next to the Senior Judges to whom subsection (6)
applies according to the days on which their appointments as Judges took
effect.
(9) Where, because 2 or more commissions of
appointment as Judge took effect on the same day on or after the commencement
of this subsection, subsection (8) does not determine seniority between
the Judges concerned, those Judges have such seniority in relation to each
other as is assigned to them by the Governor‑General.
(10) If:
(a) a person’s commission of
appointment as a Judge of a particular kind terminates; and
(b) a new commission of appointment of
the person as a Judge of that kind takes effect immediately after the termination;
the day of appointment of the person as a Judge of that
kind is, for the purposes of this section, the day on which the earlier
appointment took effect and not the day on which the later appointment took
effect.
(11) Subsection (10)
applies to the termination of a commission of appointment however it occurs
(whether because of resignation or because of the expiration of the term of the
appointment or otherwise).
24
Absence or illness of Chief Judge
(1) Whenever:
(a) the Chief Judge is absent from Australia
or from duty; or
(b) there is a vacancy in the office
of Chief Judge;
the Deputy Chief Judge or, if the Deputy Chief Judge is
unavailable, the senior Judge Administrator who is in Australia and is
available and willing to do so shall perform the duties and may exercise the
powers of the Chief Judge.
(2) A Judge who is, under subsection (1),
performing the duties and exercising the powers of the Chief Judge shall be
called the Acting Chief Justice of the Court.
25
Salary and Allowances
(1) The Chief Judge, Deputy Chief Judge,
Judge Administrators, Judges assigned to the Appeal Division, Senior Judges and
other Judges of the Court shall receive salary, annual allowances and
travelling allowances at such respective rates as are fixed from time to time
by the Parliament.
(2) The salary and annual allowances of the
Judges accrue from day to day and are payable monthly.
(3) The Consolidated Revenue Fund is
appropriated to the extent necessary for payment of salaries and annual
allowances in accordance with this section.
26
Oath or affirmation of allegiance and office
A Judge shall, before proceeding to
discharge the duties of the office, take, before the Chief Justice or a Justice
of the High Court of Australia or a Judge of the Family Court or of another
court created by the Parliament, an oath or affirmation of allegiance in the
form in the Schedule to the Constitution, and also an oath or affirmation in
the following form:
“I, ,
do swear that I will well and truly serve in the office of (Chief Judge,
Deputy Chief Judge, Judge Administrator, Senior Judge or Judge, as the case
may be) of the Family Court of Australia and that I will do right to all manner
of people according to law, without fear or favour, affection or ill‑will,
So help me God.”
or
“I, , do solemnly and
sincerely promise and declare that ” (as above, omitting the words “So
help me God”).
Division 4—Judicial Registrars
26A
Judicial Registrars
The Governor‑General may appoint
one or more Judicial Registrars of the Court.
26B
Powers of Judicial Registrars
(1) The Judges, or a majority of them, may
make Rules of Court delegating to the Judicial Registrars all or any of the
powers of the Court except the power to make an excluded child order (as
defined in subsection (1A)) and the power to make an order setting aside a
registered award under section 13K.
(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.
(2) Without limiting the generality of subsection (1),
the Judges, or a majority of them, may make Rules of Court under that
subsection:
(a) delegating to the Judicial
Registrars all or any of the powers of the Court that could be delegated to the
Registrars of the Court; and
(b) delegating to the Judicial
Registrars powers of the Court by reference to powers of the Court that have
been delegated to the Registrars of the Court under section 37A.
(3) A power delegated to the Judicial
Registrars shall, when exercised by a Judicial Registrar, be deemed to have
been exercised by the Court or a Judge, as the case requires.
(4) The delegation of a power to the Judicial
Registrars does not prevent the exercise of the power by the Court or a Judge.
(5) The provisions of this Act, the
regulations and the standard Rules of Court, and other laws of the
Commonwealth, that relate to the exercise by the Court of a power that is,
under a delegation made under subsection (1), exercisable by a Judicial
Registrar, apply in relation to an exercise of the power by a Judicial
Registrar as if references to the Court, or to a court exercising jurisdiction
under this Act, were references to a Judicial Registrar.
(6) The Judicial Registrars shall have, in
addition to the powers delegated to them under subsection (1), such other
powers (if any) as are conferred on them by this Act, the regulations and the
standard Rules of Court.
Note: Powers to make Rules of Court are also
contained in sections 37A, 109A and 123.
26C
Review of decisions of Judicial Registrars
(1) A party to proceedings in which a
Judicial Registrar has exercised a power delegated under subsection 26B(1) may,
within the time prescribed by, or within such further time as is allowed in
accordance with, Rules of Court made by the Judges or a majority of them, apply
to the Court to review the exercise of the power.
(2) The Court may, on application made under subsection (1)
or of its own motion, review the exercise by a Judicial Registrar of a power
delegated under subsection 26B(1), and may make such orders as it considers
appropriate in relation to the matter in relation to which the power was
exercised.
(3) The Court may, on the application of a
party or of its own motion, refer an application under subsection (1) to a
Full Court of the Court.
26D
Exercise of delegated powers by Court
(1) Where:
(a) an
application for the exercise of a power delegated under subsection 26B(1) is to
be, or is being, heard by a Judicial Registrar; and
(b) the Judicial Registrar considers
that it is not appropriate for the application to be determined by a Judicial
Registrar;
the Judicial Registrar shall not hear, or continue to
hear, the application, and shall make appropriate arrangements for the
application to be heard by the Court.
(2) Where:
(a) a power delegated under subsection
26B(1) is proposed to be exercised in a particular case by a Judicial
Registrar; but
(b) the Judicial Registrar has not
commenced to exercise the power in that case;
a Judge may, on application by a person who would be a
party to the proceedings before the Judicial Registrar in relation to the
proposed exercise of the power, order that the power be exercised in that case
by a Judge.
(3) Where an application is made to a Judge
under subsection (2) seeking an order that, in a particular case, a power
be exercised by a Judge, the Judicial Registrar shall not commence to exercise
the power in that case until the application has been determined.
26E
Application of the Legislative Instruments Act 2003 to rules of court
The Legislative Instruments Act 2003
(other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in
relation to rules of court made under sections 26B and 26C of this Act:
(a) as if a reference to a legislative
instrument were a reference to a rule of court; and
(b) as if a reference to a rule‑maker
were a reference to the Chief Judge acting on behalf of the Judges; and
(c) subject to such further
modifications or adaptations as are provided for in regulations made under
paragraph 125(1)(baa) of this Act.
26F Independence
of Judicial Registrars
Notwithstanding any provision of this
Act or any other law, a Judicial Registrar is not subject to the direction or
control of any person or body in the exercise of a power delegated under
subsection 26B(1).
26G
Judicial Registrars hold office on full time or part time basis
A Judicial Registrar may be appointed on
a full time or part time basis.
26H
Qualifications for appointment etc.
(1) A person shall not be appointed as a
Judicial Registrar unless:
(a) the person is or has been a Judge
of a court created by the Parliament or of a court of a State or the Northern
Territory or has been enrolled as a legal practitioner of the High Court or of
the Supreme Court of a State or Territory for not less than 5 years; and
(b) the person is, by reason of
training, experience and personality, a suitable person to deal with matters of
family law.
26I
Term of office
(1) A Judicial Registrar:
(a) shall be appointed with effect
from the day specified in the instrument of appointment; and
(b) holds office, subject to this Act:
(i) for such term (not
exceeding 7 years) as is specified in the instrument of appointment, but is
eligible for re‑appointment; or
(ii) if the instrument of
appointment so provides, until attaining 65 years of age, but is eligible for
re‑appointment.
26J
Remuneration and allowances
(1) A Judicial Registrar shall be paid such
remuneration as is determined by the Remuneration Tribunal.
(2) A Judicial Registrar shall be paid such
allowances as are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
26JA
Leave of absence
(1) A person appointed as a full‑time
Judicial Registrar has such recreation leave entitlements as are determined by
the Remuneration Tribunal.
(2) The Chief Judge may grant a person
appointed as a full‑time Judicial Registrar leave of absence, other than
recreation leave, on such terms and conditions as to remuneration or otherwise
as the Chief Judge, with the approval of the Attorney‑General,
determines.
26K
Resignation
(1) A Judicial Registrar may resign office by
writing under his or her hand addressed to the Governor‑General.
(2) The resignation takes effect on:
(a) the day on which it is received by
the Governor‑General; or
(b) a later day specified in the
resignation document.
26L
Termination of appointment
(1) The Governor‑General may terminate
the appointment of a Judicial Registrar for misbehaviour or physical or mental
incapacity.
(2) The
Governor‑General shall terminate the appointment of a Judicial Registrar
if the Judicial Registrar becomes bankrupt, applies to take the benefit of a
law for the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for their benefit.
26M
Oath or affirmation of office
A Judicial Registrar shall, before
proceeding to discharge the duties of the office, take, before the Chief Judge
or another Judge of the Family Court, an oath or affirmation in the following
form:
“I, , do swear that I will be
faithful and bear true allegiance to Her Majesty Queen Elizabeth
the Second, Her Heirs and Successors according to law and that I will well and
truly serve Her in the office of Judicial Registrar of the Family Court of
Australia, So help me God.”
or
“I, , do solemnly and
sincerely promise and declare that I will be faithful and bear true allegiance
to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according
to law and that I will well and truly serve Her in the office of Judicial
Registrar of the Family Court of Australia.”
26N
Terms and conditions of appointment not provided for by Act
A Judicial Registrar holds office on
such terms and conditions (if any) in relation to matters not provided by this
Act as are determined, in writing, by the Governor‑General.
Division 5—Jurisdiction and exercise of jurisdiction
27
Place of sitting
(1) Sittings of the Court must be held from
time to time as required and the Court may sit at any place in Australia.
(2) The Court, in respect of proceedings, may
be constituted by 2 or more Judges sitting at the same time, but in different
places in Australia, using video link, audio link or other appropriate means to
facilitate the Court sitting (split court).
Note: Section 21B provides for the Chief Judge
to make arrangements for the constitution of the Court for particular matters.
(3) For the purpose of determining which law
to apply in proceedings in which a split court is sitting, the Court is taken
to be sitting at the place at which the presiding Judge is sitting.
27A
Change of venue
The Court or a Judge may, at any stage
of a proceeding in the Court, direct that the proceeding or a part of the
proceeding be conducted or continued at a place specified in the order, subject
to such conditions (if any) as the Court or Judge imposes.
28
Exercise of jurisdiction
(1) The original jurisdiction of the Court
may be exercised by one or more Judges.
(2) The jurisdiction of the Court in an
appeal from a court of summary jurisdiction may be exercised by one Judge or by
a Full Court.
(2A) Nothing in this Act prevents a Judge who is
a member of the Appeal Division from exercising the jurisdiction of the Court
that, under subsection (1) or (2), may be exercised by one or more Judges.
(3) The jurisdiction of the Court in an
appeal from a Judge of the Court or of the Supreme Court of a State or
Territory shall be exercised by a Full Court.
(3A) The jurisdiction of the Court to hear and
determine a case stated under section 94A shall be exercised by a Full
Court.
(4) Where, after a Full Court (including a
Full Court constituted in accordance with this subsection) has commenced the
hearing, or further hearing, of proceedings and before the proceedings have been
determined, one of the Judges constituting the Full Court dies, resigns his or
her office, ceases to be a member of the Court by reason that the term of his
or her appointment expires or otherwise becomes unable to continue as a member
of the Full Court for the purposes of the proceedings, then the hearing and
determination, or the determination, of the proceedings may be completed:
(a) if
only 2 Judges remain and one of those Judges is assigned to the Appeal
Division, or if more than 2 Judges remain and a majority of those Judges are
assigned to the Appeal Division—by the Court constituted by the remaining
Judges; or
(b) with the consent of the parties—by
the Court constituted by the remaining Judge or Judges and an additional Judge
or Judges, where a majority of the Judges constituting the Court are assigned
to the Appeal Division.
(5) A Full Court constituted in accordance
with subsection (4) may have regard to any evidence given or received, and
arguments adduced, by or before the Full Court as previously constituted.
(6) The Court constituted by one or more
Judges may sit and exercise the jurisdiction of the Court notwithstanding that
the Court constituted by one or more other Judges is at the same time sitting
and exercising the jurisdiction of the Court.
30
Court divided in opinion
If the Judges constituting the Court for
the purposes of any proceedings are divided in opinion as to the judgment to be
pronounced, judgment shall be pronounced according to the opinion of the
majority, if there is a majority, but, if the Judges are equally divided in
opinion:
(a) in the case of an appeal from a
judgment of the Family Court constituted by a single Judge, or of a Family
Court of a State or the Supreme Court of a State or Territory—the judgment
appealed from shall be affirmed; and
(b) in any other case—the opinion of
the Chief Judge or, if he or she is not one of the Judges constituting the
Court, the opinion of the most senior of those Judges, shall prevail.
31
Original jurisdiction of Family Court
(1) Jurisdiction
is conferred on the Family Court with respect to:
(a) matters arising under this Act or
under the repealed Act in respect of which matrimonial causes are instituted or
continued under this Act; and
(aa) matters arising under this Act in
respect of which de facto financial causes are instituted under this Act;
and
(b) matters arising under the Marriage
Act 1961 in respect of which proceedings (other than proceedings under Part VII
of that Act) are instituted or continued under that Act; and
(c) matters arising under a law of a
Territory (other than the Northern Territory) concerning:
(i) the adoption of
children;
(iv) the property of the
parties to a marriage or either of them, being matters arising between those
parties other than matters referred to in the definition of matrimonial
cause in subsection 4(1); or
(v) the rights and status
of a person who is an ex‑nuptial child, and the relationship of such a
person to his or her parents; and
(d) matters (other than matters
referred to in any of the preceding paragraphs) with respect to which
proceedings may be instituted in the Family Court under this Act or any other
Act.
(2) Subject to such restrictions and
conditions (if any) as are contained in section 111AA, the regulations or
the standard Rules of Court, the jurisdiction of the Family Court may be
exercised in relation to persons or things outside Australia and the
Territories.
Note: Division 4 of Part XIIIAA
(International protection of children) may affect the jurisdiction of the
Court.
33
Jurisdiction in associated matters
To the extent that the Constitution
permits, jurisdiction is conferred on the Court in respect of matters not
otherwise within the jurisdiction expressed by this Act or any law to be
conferred on the Court that are associated with matters (including matters
before the Court upon an appeal) in which the jurisdiction of the Court is
invoked or that arise in proceedings (including proceedings upon an appeal)
before the Court.
33A
Proceedings not to be instituted in the Family Court if an associated matter is
before the Federal Magistrates Court
(1) Proceedings must not be instituted in the
Family Court in respect of a matter if:
(a) the Federal Magistrates Court has
jurisdiction in that matter; and
(b) proceedings in respect of an
associated matter are pending in the Federal Magistrates Court.
(2) Subsection (1) does not apply to:
(a) proceedings for a divorce order;
or
(b) proceedings instituted in the
Family Court under Division 13A of Part VII or under Part XIII
or XIIIA.
(3) If:
(a) proceedings are instituted in the
Family Court in contravention of subsection (1); and
(b) the proceedings are subsequently
transferred to the Federal Magistrates Court;
the proceedings are taken to be as valid as they would
have been if subsection (1) had not been enacted.
33B
Discretionary transfer of proceedings to the Federal Magistrates Court
(1) If a proceeding is pending in the Family
Court, the Family Court may, by order, transfer the proceeding from the Family Court
to the Federal Magistrates Court.
(2) The Family Court may transfer a
proceeding under subsection (1):
(a) on the application of a party to
the proceeding; or
(b) on its own initiative.
(3) The standard Rules of Court may make
provision in relation to the transfer of proceedings to the Federal Magistrates
Court under subsection (1).
(4) In particular, the standard Rules of
Court may set out factors that are to be taken into account by the Family Court
in deciding whether to transfer a proceeding to the Federal Magistrates Court
under subsection (1).
(5) Before standard Rules of Court are made
for the purposes of subsection (3) or (4), the Family Court must consult
the Federal Magistrates Court.
(6) In deciding whether to transfer a
proceeding to the Federal Magistrates Court under subsection (1), the
Family Court must have regard to:
(a) any standard Rules of Court made
for the purposes of subsection (4); and
(b) whether proceedings in respect of
an associated matter are pending in the Federal Magistrates Court; and
(c) whether the resources of the
Federal Magistrates Court are sufficient to hear and determine the proceeding;
and
(d) the interests of the
administration of justice.
(7) If an order is made under subsection (1),
the Family Court may make such orders as it considers necessary pending the
disposal of the proceeding by the Federal Magistrates Court.
(8) An appeal does not lie from a decision of
the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Magistrates Court has
jurisdiction in a matter that:
(a) is the subject of a proceeding
transferred to the court under this section; and
(b) is a matter in which the court
does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this
subsection is not subject to limits set by another provision.
(9) The reference in subsection (1) to a
proceeding pending in the Family Court includes a reference to a proceeding
that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings
of a kind specified in the regulations.
33C Mandatory transfer of proceedings to the Federal Magistrates
Court
(1) If a proceeding of a kind specified
in regulations made for the purposes of this subsection is pending in the
Family Court, the Family Court must, before going on to hear and determine the
proceeding, transfer the proceeding to the Federal Magistrates Court.
(2) If a proceeding is transferred under subsection (1),
the Family Court may make such orders as it considers necessary pending the
disposal of the proceedings by the Federal Magistrates Court.
(3) An appeal does not lie from a decision of
the Family Court in relation to the transfer of a proceeding under subsection (1).
(3A) The Federal Magistrates Court has
jurisdiction in a matter that:
(a) is the subject of a proceeding
transferred to the court under this section; and
(b) is a matter in which the court
does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this
subsection is not subject to limits set by another provision.
(4) The reference in subsection (1) to a
proceeding pending in the Family Court includes a reference to a proceeding
that was instituted in contravention of section 33A.
(5) The Minister must cause a copy of
regulations (transfer regulations) made for the purposes of subsection (1)
to be tabled in each House of the Parliament.
(6) Either House may, following a motion upon
notice, pass a resolution disallowing the transfer regulations. To be
effective, the resolution must be passed within 15 sittings days of the House
after the copy of the transfer regulations was tabled in the House.
(7) If neither House passes such a
resolution, the transfer regulations take effect on the day immediately after
the last day upon which such a resolution could have been passed.
(8) Subsections (5),
(6) and (7) have effect despite anything in:
(a) the
Acts Interpretation Act 1901; or
(b) the Legislative Instruments Act
1999.
34
Issue of certain writs etc.
(1) The Court has power, in relation to
matters in which it has jurisdiction, to make orders of such kinds, and to
issue, or direct the issue of, writs of such kinds, as the Court considers
appropriate.
35
Contempt of court
Subject to this and any other Act, the
Family Court has the same power to punish contempts of its power and authority
as is possessed by the High Court in respect of contempts of the High Court.
Division 6—Registries and officers
36
Registries
(1) The Governor‑General shall cause
such Registries of the Court to be established as the Governor‑General
thinks fit.
(2) Unless and until the regulations
otherwise provide, the Principal Registry shall be located in Sydney.
37
Officers of Court
(1) In relation to a proceeding under this
Act, the officers of the Court have such duties, powers and functions as are
given by this Act or the standard Rules of Court or by the Chief Judge.
(2) The Principal Registrar of the Court may,
subject to this Act, the regulations, the standard Rules of Court and any
directions of the Chief Judge, give directions to the officers of the Court in
relation to the manner in which the functions and duties of those officers are
to be performed and the powers of those officers are to be exercised in
relation to proceedings under this Act.
(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.
37A
Delegation of powers to Registrars
(1) The Judges, or a majority of them, may,
subject to subsection (2), make Rules of Court delegating to the
Registrars all or any of the powers of the Court, including, without limiting
the generality of the foregoing, all or any of the following powers of the
Court:
(a) the power to dispense with the
service of any process under this Act;
(b) the power to make orders in
relation to substituted service;
(c) the power, in proceedings under
this Act, to make orders in relation to discovery, inspection and production of
documents in the possession, power or custody of a party to the proceedings or
of any other person;
(d) the power, in proceedings under
this Act, to direct a party to the proceedings to answer particular questions;
(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;
(f) the power, in proceedings under
this Act, to make:
(i) an order under section 66Q,
67E, 77 or 90SG; or
(ii) an order for the
payment of maintenance pending the disposal of the proceedings;
(g) the power to make, in proceedings
under this Act, an order the terms of which have been agreed upon by all the
parties to the proceedings;
(h) the power, in proceedings under
this Act, to make an order adjourning the hearing of the proceedings;
(j) the power under section 117
to make an order as to costs;
(m) the power to make an order
exempting a party to proceedings under this Act from compliance with a
provision of the regulations or Rules of Court.
(2) The powers of the Court that may be
delegated under subsection (1) do not include the power to make:
(a) a divorce order in proceedings
that are defended; or
(b) a decree of nullity of marriage;
or
(c) a declaration as to the validity
of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a
marriage; or
(d) an excluded child order (as
defined in subsection (2A)); or
(e) an order setting aside a
registered award under section 13K.
(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.
(3) A power delegated by applicable Rules of
Court under subsection (1), when exercised by a Registrar, shall, for all
purposes, be deemed to have been exercised by the Court or a Judge, as the case
requires.
(4) The delegation of a power by applicable
Rules of Court under subsection (1) does not prevent the exercise of the
power by the Court or a Judge.
(5) If the power referred to in paragraph (1)(f)
is delegated under subsection (1), a Registrar shall not exercise the
power on application by a party to proceedings under this Act unless:
(a) the other party to the proceedings
appears at the hearing of the application; or
(b) the Registrar is satisfied that
notice of the intention of the first‑mentioned party to make the
application has been served on the other party.
(6) If the power referred to in paragraph (1)(j)
is delegated under subsection (1), a Registrar shall not exercise the
power except in relation to costs of or in connection with an application heard
by a Registrar.
(7) The provisions of this Act, the
regulations, the standard Rules of Court, and other laws of the Commonwealth,
that relate to the exercise by the Court of a power that is, by virtue of a
delegation under subsection (1), exercisable by a Registrar apply in
relation to an exercise of the power by a Registrar under the delegation as if
references in those provisions to the Court or to a court exercising
jurisdiction under this Act were references to a Registrar.
(8) Notwithstanding any other provision of
this Act and any provision of the Public Service Act 1999 or of any
other law, a Registrar is not subject to the direction or control of any person
or body in relation to the manner in which he or she exercises powers pursuant
to a delegation under subsection (1).
(9) A party to proceedings in which a
Registrar has exercised any of the powers of the Court pursuant to a delegation
under subsection (1) may, within the time prescribed by, or within such
further time as is allowed in accordance with, applicable Rules of Court made
by the Judges or a majority of them for the purposes of this subsection, apply
to the Court to review that exercise of power.
(10) The Court may, on application under subsection (9)
or of its own motion, review an exercise of power by a Registrar pursuant to a
delegation under this section and may make such order or orders as it considers
appropriate with respect to the matter with respect to which the power was
exercised.
(11) Where:
(a) an application for the exercise of
a power delegated under subsection (1) is to be, or is being, heard by a
Registrar; and
(b) the Registrar considers that it is
not appropriate for the application to be determined by a Registrar acting
under the delegation;
the Registrar shall not hear, or continue to hear, the
application and shall make appropriate arrangements for the application to be
heard by the Court.
(12) Where:
(a) a power delegated under subsection (1)
is proposed to be exercised in a particular case by a Registrar; but
(b) the Registrar has not commenced to
exercise the power in that case;
a Judge may, on application by a person who would be a
party to the proceedings before the Registrar in relation to the proposed
exercise of the power, order that the power be exercised in that case by a
Judge.
(13) Where an application is made to a Judge
under subsection (12) seeking an order that, in a particular case, a power
be exercised by a Judge, the Registrar shall not commence to exercise the power
in that case until the application has been determined.
(14) The Legislative Instruments Act 2003
(other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in
relation to rules of court made under this section:
(a) as if a reference to a legislative
instrument were a reference to a rule of court; and
(b) as if a reference to a rule‑maker
were a reference to the Chief Judge acting on behalf of the Judges; and
(c) subject to such further
modifications or adaptations as are provided for in regulations made under
paragraph 125(1)(baa) of this Act.
(15) In this section, Registrar
means the Principal Registrar, a Registrar or a Deputy Registrar of the Court.
Note: Powers to make Rules of Court are also
contained in sections 26B, 109A and 123.
37B Independence
of Registrars
(1) Notwithstanding any provision of this Act
other than subsection (3), and any provision of the Public Service Act
1999 or any other law, in the performance of a function or the exercise of
a power under this Act, under the regulations or under the standard Rules of
Court (other than a power delegated by standard Rules of Court under subsection
37A(1)):
(a) the Principal Registrar is subject
to the direction and control of the Chief Judge and is not subject to the
direction or control of any other person or body;
(b) a Registrar is subject to the
direction and control of:
(i) the Chief Judge;
(ii) any other Judge
authorized by the Chief Judge to direct and control that Registrar; and
(iii) the Principal
Registrar;
and is not subject to the
direction or control of any other person or body; and
(c) a Deputy Registrar is subject to
the direction and control of:
(i) the Chief Judge;
(ii) any other Judge
authorized by the Chief Judge to direct and control that Deputy Registrar;
(iii) the Principal
Registrar; and
(iv) the Registrars;
and is not subject to the
direction or control of any other person or body.
(2) Without limiting the generality of subsection (1),
the Principal Registrar may, subject to this Act and to any directions of the
Chief Judge, make arrangements as to the Registrars or Deputy Registrars who
are to perform any functions or exercise any power under this Act, under the
regulations or under the standard Rules of Court (including a power delegated
by standard Rules of Court under subsection 37A(1)) in particular matters or
classes of matters.
(3) The powers of the Principal Registrar in
relation to the Registrars and the Deputy Registrars, and the powers of the
Registrars in relation to the Deputy Registrars, shall be exercised subject to
the directions of the Chief Judge.
(4) An Agency Head (within the meaning of the
Public Service Act 1999) cannot take action under section 15 of the
Public Service Act 1999 against the Principal Registrar, a Registrar or
a Deputy Registrar unless such action is requested by the Chief Judge.
(5) In this section, Registrar
means a Registrar of the Court.
37C
Oath or affirmation of office
A Principal Registrar, Registrar or
Deputy Registrar shall, before proceeding to discharge the duties of the
office, take, before the Chief Judge or another Judge of the Family Court, an
oath or affirmation in the following form:
“I, , do swear that I
will well and truly serve in the office of (Principal Registrar, Registrar
or Deputy Registrar, as the case may be) of the Family Court of Australia
and that I will do right to all manner of people according to law, without fear
or favour, affection or illwill, So help me God.”
or
“I, , do solemnly and
sincerely promise and declare that ” (as above, omitting the words
“So help me God”).
Division 7—Practice and procedure
38
Practice and procedure
(1) Subject to this Act, the practice and
procedure of the Court shall be in accordance with the regulations and the
standard Rules of Court.
(2) In so far as the provisions applicable in
accordance with subsection (1) are insufficient, the Rules of the High
Court, as in force for the time being, apply, mutatis mutandis, so far
as they are capable of application and subject to any directions of the Court
or a Judge, to the practice and procedure of the Court.
(2A) This section does not apply in relation to
proceedings that are transferred to the Court from the Federal Court of
Australia.
(3) In this section, practice and
procedure includes all matters with respect to which regulations or
standard Rules of Court may be made under this Act.
Part IVA—Management of the Court
Division 1—Management responsibilities of the Chief Judge and the Chief
Executive Officer
38A
Management of administrative affairs of Court
(1) The Chief Judge is responsible for
managing the administrative affairs of the Court.
(2) For that purpose, the Chief Judge has
power to do all things that are necessary or convenient to be done, including,
on behalf of the Commonwealth:
(a) entering into contracts; and
(b) acquiring or disposing of personal
property.
(3) The powers given to the Chief Judge by subsection (2)
are in addition to any powers given to the Chief Judge by any other provision
of this Act or by any other Act.
(4) Subsection (2) does not authorise
the Chief Judge to:
(a) acquire any interest or right that
would constitute an interest in land for the purposes of the Lands
Acquisition Act 1989; or
(b) enter into a contract under which
the Commonwealth is to pay or receive an amount exceeding $250,000 or, if a
higher amount is prescribed, that higher amount, except with the approval of
the Attorney‑General.
38B
Chief Executive Officer
In the management of the administrative
affairs of the Court, the Chief Judge is assisted by a Chief Executive Officer.
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.
Division 2—Appointment, powers etc. of Chief Executive Officer
38C
Appointment of Chief Executive Officer
The Chief Executive Officer is appointed
by the Governor‑General on the nomination of the Chief Judge.
38D
Powers of Chief Executive Officer
(1) The Chief Executive Officer has power to
do all things necessary or convenient to be done for the purpose of assisting
the Chief Judge under section 38B.
(2) In particular, the Chief Executive
Officer may act on behalf of the Chief Judge in relation to the administrative
affairs of the Court.
(3) The Chief Judge may give the Chief
Executive Officer directions regarding the exercise of his or her powers.
38E
Remuneration of Chief Executive Officer
(1) The Chief Executive Officer is to be paid
the remuneration and allowances determined by the Remuneration Tribunal.
(2) If there is no determination in force,
the Chief Executive Officer is to be paid such remuneration as is prescribed.
(3) The Chief Executive Officer is to be paid
such other allowances as are prescribed.
(4) Remuneration and allowances payable to
the Chief Executive Officer under this section are to be paid out of money
appropriated by the Parliament for the purposes of the Court.
38F
Terms and conditions of appointment of Chief Executive Officer
(1) The Chief Executive Officer holds office
for the period (not longer than 5 years) specified in the instrument of his or
her appointment, but is eligible for re‑appointment.
(4) The Chief Executive Officer holds office
on such terms and conditions (if any) in respect of matters not provided for by
this Act as are determined by the Chief Judge.
38G
Leave of absence
(1) The Chief Executive Officer has such
recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Chief Judge may grant the Chief
Executive Officer leave of absence, other than recreation leave, on such terms
and conditions as to remuneration or otherwise as the Chief Judge, with the
approval of the Attorney‑General, determines.
38H
Resignation
The Chief Executive Officer may resign
by giving a signed notice of resignation to the Governor‑General.
38J
Outside employment of Chief Executive Officer
(1) Except with the consent of the Chief
Judge, the Chief Executive Officer must not engage in paid employment outside
the duties of his or her office.
(2) The reference in subsection (1) to
paid employment does not include service in the Defence Force.
38K
Termination of appointment
(1) The Governor‑General may terminate
the appointment of the Chief Executive Officer for misbehaviour or physical or
mental incapacity.
(2) The
Governor‑General is required to terminate the appointment of the Chief
Executive Officer if he or she:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with creditors or makes an assignment of remuneration for their
benefit; or
(b) is absent from duty, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) engages in paid employment
contrary to section 38J; or
(d) fails, without reasonable excuse,
to comply with section 38L.
(3) The Governor‑General may, with the
consent of the Chief Executive Officer who is:
(a) an eligible employee for the
purposes of the Superannuation Act 1976; or
(b) a member of the superannuation
scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005;
retire the Chief Executive Officer from office on the
ground of incapacity.
(4) In spite of anything contained in this
section, if the Chief Executive Officer:
(a) is an eligible employee for the
purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum
retiring age (within the meaning of that Act);
he or she is not capable of being retired from office on
the ground of invalidity (within the meaning of Part IVA of that Act)
unless the Board (within the meaning of that Act) has given a certificate under
section 54C of that Act.
(5) In spite of anything contained in this
section, if the Chief Executive Officer:
(a) is a member of the superannuation
scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
he or she is not capable of being retired from office on
the ground of invalidity (within the meaning of that Act) unless the Board
(within the meaning of that Act) has given a certificate under section 13
of that Act.
(6) In spite of anything contained in this
section, if the Chief Executive Officer:
(a) is an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60 years of age;
he or she is not capable of being retired from office on
the ground of invalidity (within the meaning of that Act) unless the Board
(within the meaning of that Act) has given an approval and certificate under
section 43 of that Act.
38L
Disclosure of interests by Chief Executive Officer
The Chief Executive Officer must give
written notice to the Chief Judge of all direct or indirect pecuniary interests
that the Chief Executive Officer has or acquires in any business or in any body
corporate carrying on a business.
38M
Acting Chief Executive Officer
(1) The Chief Judge may, in writing, appoint
a person to act in the office of Chief Executive Officer:
(a) during a vacancy in the office
(whether or not an appointment has previously been made to the office); or
(b) during any period, or during all
periods, when the Chief Executive Officer is absent from duty or from Australia
or is, for any other reason, unable to perform the duties of the office.
(2) A person appointed to act in the office
of Chief Executive Officer during a vacancy may not continue to act in that
office for more than 12 months.
(3) Anything done by or in relation to a
person purporting to act under subsection (1) is not invalid on the ground
that:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
Division 3—Other officers and staff of Registries
38N
Personnel other than the Chief Executive Officer
(1) In addition to the Chief Executive
Officer, there are the following officers of the Court:
(a) a Principal Registrar of the
Court;
(b) such Registrars and Deputy
Registrars of the Court as are necessary;
(c) such Registry Managers of the
Court as are necessary;
(d) such family consultants as are
necessary;
(e) the Marshal of the Court;
(f) such Deputy Marshals of the Court
as are necessary.
(2) The officers of the Court, other than the
Chief Executive Officer, have such duties, powers and functions as are given to
them by this Act, by the standard Rules of Court or by the Chief Judge.
(3) The officers of the Court are appointed
by the Chief Executive Officer.
(4) The officers of the Court, other than the
Chief Executive Officer and the Deputy Marshals, are to be persons engaged
under the Public Service Act 1999.
(5) The Deputy Marshals may be persons
engaged under the Public Service Act 1999.
(6) The Chief Executive Officer may, on
behalf of the Chief Judge, arrange with an Agency Head (within the meaning of
the Public Service Act 1999), or with an authority of the Commonwealth,
for the services of officers or employees of the Department or authority to be
made available for the purposes of the Court.
(7) There are to be such staff of the
Registries as are necessary.
(8) The staff of the Registries is to consist
of persons engaged under the Public Service Act 1999.
38P
Marshal
(1) The Marshal of the Court is responsible
for the service and execution of all process of the Court directed to the
Marshal.
(2) The Marshal is also responsible for:
(a) dealing, on behalf of the Court,
with the Australian Federal Police and the police forces of the States and
Territories in relation to the service and execution of process of the Court
directed to members of any of those police forces; and
(b) the security of the Court and the
personal security of the Judges and officers of the Court; and
(c) taking, receiving and detaining
all persons committed to his or her custody by the Court; and
(d) discharging such persons when so
directed by the Court or otherwise required by law.
(3) A Deputy Marshal may, subject to any
directions of the Marshal, exercise or perform any of the powers and functions
of the Marshal.
(4) The Marshal or a Deputy Marshal may
authorise persons to assist him or her in the exercise of any of his or her
powers or the performance of any of his or her functions.
38Q
Statutory Agency etc. for purposes of Public Service Act
For the purposes of the Public
Service Act 1999:
(a) the Chief Executive Officer and
the APS employees assisting the Chief Executive Officer together constitute a
Statutory Agency; and
(b) the Chief Executive Officer is the
Head of that Statutory Agency.
38R
Engagement of consultants etc.
(1) The Chief Executive Officer may engage
persons having suitable qualifications and experience as consultants to, or to
perform services for, the Chief Executive Officer.
(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.
(2) An
engagement under subsection (1) or (1A) is to be made:
(a) on
behalf of the Commonwealth; and
(b) by written agreement.
Division 4—Miscellaneous administrative matters
38S
Annual report
(1) As soon as practicable after 30 June
in each year, the Chief Judge must prepare and give to the Attorney‑General
a report of the management of the administrative affairs of the Court during
the year.
(2) The report must include:
(a) the financial statements required
by section 49 of the Financial Management and Accountability Act 1997;
and
(b) an audit report on those
statements under section 57 of the Financial Management and
Accountability Act 1997.
(3) The Attorney‑General must cause a
copy of the report to be tabled in each House of the Parliament as soon as
practicable.
38W
Delegation of administrative powers of Chief Judge
The Chief Judge may, in writing,
delegate all or any of his or her powers under section 38A to any one or
more of the Judges.
38X
Proceedings arising out of administration of Court
Any judicial or other proceeding
relating to a matter arising out of the management of the administrative
affairs of the Court under this Part, including any proceeding relating to
anything done by the Chief Executive Officer under this Part, may be instituted
by or against the Commonwealth, as the case requires.
Part V—Jurisdiction of courts
Division 1—Jurisdiction in matrimonial causes
39
Jurisdiction in matrimonial causes
(1) Subject to this Part, a matrimonial cause
may be instituted under this Act:
(a) in the Family Court; or
(b) in the Supreme Court of a State or
a Territory.
(1A) Subject to this Part, a matrimonial cause
(other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b)
of the definition of matrimonial cause in subsection 4(1))
may be instituted under this Act in the Federal Magistrates Court.
(2) Subject to this Part, a matrimonial cause
(other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b)
of the definition of matrimonial cause in subsection 4(1))
may be instituted under this Act in a Court of summary jurisdiction of a State
or Territory.
(3) Proceedings for a divorce order may be
instituted under this Act if, at the date on which the application for the
order is filed in a court, either party to the marriage:
(a) is an Australian citizen;
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia
and has been so resident for 1 year immediately preceding that date.
(4) Proceedings of a kind referred to in the
definition of matrimonial cause in subsection 4(1), other than
proceedings for a divorce order or proceedings referred to in paragraph (f)
of that definition, may be instituted under this Act if:
(a) in the case of proceedings between
the parties to a marriage or proceedings of a kind referred to in paragraph (b)
of that definition in relation to a marriage—either party to the marriage is an
Australian citizen, is ordinarily resident in Australia, or is present in
Australia, at the relevant date; and
(b) in any other case—any party to the
proceedings is an Australian citizen, is ordinarily resident in Australia, or
is present in Australia, at the relevant date.
(4A) In subsection (4), relevant date,
in relation to proceedings, means:
(a) if the application instituting the
proceedings is filed in a court—the date on which the application is so filed;
or
(b) in any other case—the date on
which the application instituting the proceedings is made.
(5) Subject to this Part and to
section 111AA, the Supreme Court of each State is invested with federal
jurisdiction, and jurisdiction is conferred on the Family Court and on the
Supreme Court of each Territory, with respect to matters arising under this Act
in respect of which:
(a) matrimonial causes are instituted
under this Act; or
(b) matrimonial causes are continued
in accordance with section 9; or
(d) proceedings are instituted under
regulations made for the purposes of section 109, 110, 111, 111A or 111B
or of paragraph 125(1)(f) or (g) or under Rules of Court made for the purposes
of paragraph 123(1)(r); or
(da) proceedings are instituted under
Division 4 of Part XIIIAA or under regulations made for the purposes
of section 111CZ; or
(e) proceedings are instituted under
section 117A.
(5AA) Subject to this Part and to
section 111AA, the Federal Magistrates Court has, and is taken always to
have had, jurisdiction with respect to matters arising under this Act in
respect of which matrimonial causes (other than proceedings of a kind referred
to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial
cause in subsection 4(1)) are instituted under this Act.
(5A) Subject to this Part and to
section 111AA, the Federal Magistrates Court has jurisdiction with respect
to matters arising under this Act in respect of which proceedings are
instituted under:
(a) regulations made for the purposes
of section 109, 110, 111, 111A or 111B; or
(b) regulations made for the purposes
of paragraph 125(1)(f) or (g); or
(c) section 117A; or
(d) proceedings are instituted under
Division 4 of Part XIIIAA or under regulations made for the purposes
of section 111CZ.
(6) Subject to this Part and to
section 111AA, 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 Act in respect of which:
(a) matrimonial causes (other than
proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b)
of the definition of matrimonial cause in subsection 4(1)) are
instituted under this Act; or
(b) matrimonial causes (other than
proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b)
of the definition of matrimonial cause in subsection 4(1)) are
continued in accordance with section 9; or
(d) proceedings are instituted under:
(i) regulations made for
the purposes of section 109, 110, 111, 111A or 111B; or
(ii) regulations made for
the purposes of paragraph 125(1)(f) or (g); or
(iii) standard Rules of
Court made for the purposes of paragraph 123(1)(r); or
(iv) Rules of Court made for
the purposes of paragraph 87(1)(j) of the Federal Magistrates Act 1999;
or
(da) proceedings are instituted under
Division 4 of Part XIIIAA or under regulations made for the purposes
of section 111CZ; or
(e) proceedings are instituted under
section 117A.
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.
(7) The Governor‑General may, by
Proclamation, fix a day as the day on and after which proceedings in relation
to matters arising under this Part may not be instituted in, or transferred to,
a court of summary jurisdiction in a specified State or Territory.
(7AAA) Without limiting the generality of
subsection (7), a Proclamation under that subsection may be expressed to
apply only in relation to one or more of the following:
(a) proceedings of specified classes;
(b) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction in a
specified part of a State or Territory;
(c) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction constituted
in a specified way.
(7AA) A court of summary jurisdiction in a State or
Territory shall not hear or determine proceedings under this Act instituted in
or transferred to that court otherwise than in accordance with any Proclamation
in force under subsection (7).
(7A) The Governor‑General may, by
Proclamation, declare that a Proclamation made under subsection (7) is
revoked on and from a specified date and, on and after the specified date, this
Act (including subsection (7)) has effect as if the revoked Proclamation
had not been made, but without prejudice to the effect of the revoked
Proclamation in respect of the jurisdiction of courts before the specified
date.
(8) Jurisdiction with respect to a matter
arising under this Act in respect of which a matrimonial cause is instituted
under this Act is not conferred on a court of a Territory unless at least one
of the parties to the proceedings is, at the date of the institution of the
proceedings or the date of the transfer of the proceedings to the court of the
Territory, ordinarily resident in the Territory.
(9) The jurisdiction conferred on or invested
in a court by this section includes jurisdiction with respect to matters
arising under any law of the Commonwealth in respect of which proceedings are
transferred to that court in accordance with this Act.
Division 2—Jurisdiction in de facto financial causes
39A
Instituting proceedings
Instituting proceedings under this Act
(1) A de facto financial cause may be
instituted under this Act in:
(a) the Family Court; or
(b) the Federal Magistrates Court; or
(c) the Supreme Court of the Northern
Territory of Australia; or
(d) a court of summary jurisdiction of
a participating jurisdiction.
(2) However:
(a) in the case of proceedings between
the parties to the de facto relationship—either of those parties; or
(b) in any other case—at least one of
the parties to the proceedings;
must be an Australian citizen, ordinarily resident in Australia
or present in Australia on the following day:
(c) if the application instituting the
proceedings is filed in a court—the day on which the application is so filed;
(d) in any other case—the day on which
the application instituting the proceedings is made.
(3) Subsection (2) does not apply in
relation to proceedings referred to in paragraph (g) of the definition of de facto
financial cause in subsection 4(1).
(4) Subsection (1) has effect subject to
this Part.
Proceedings only to be instituted under this Act
(5) A de facto financial cause that may
be instituted under this Act must not, after the commencement of this section,
be instituted otherwise than under this Act.
(6) Subsection (5) has effect subject to
subsection 90RC(5).
39B
Jurisdiction in de facto financial causes
(1) Jurisdiction is conferred on:
(a) the Family Court; and
(b) the Federal Magistrates Court; and
(c) the Supreme Court of the Northern
Territory of Australia; and
(d) each court of summary jurisdiction
of each Territory;
with respect to matters arising under this Act in respect
of which de facto financial causes are instituted under this Act.
Note 1: The exercise of this jurisdiction by the Family
Court is subject to section 40.
Note 2: The exercise of this jurisdiction by the
Federal Magistrates Court is subject to section 40A.
Note 3: The exercise of this jurisdiction by a
Territory court is subject to sections 39C, 39D, 39E and 39F.
(2) Each court of summary jurisdiction of
each referring State is invested with federal jurisdiction with respect to
matters arising under this Act in respect of which de facto financial
causes are instituted under this Act.
Note: The exercise of this jurisdiction by a State
court is subject to sections 39D and 39E.
(3) This section has effect subject to this
Part.
39C
Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia
(1) The Governor‑General may, by
Proclamation, fix a day as the day on and after which a de facto financial
cause:
(a) may not be instituted in, or
transferred to, the Supreme Court of the Northern Territory of Australia; or
(b) may be so instituted or
transferred only where specified conditions are complied with.
(2) Without limiting the generality of
subsection (1), a Proclamation under that subsection may be expressed to
apply only in relation to one or more of the following:
(a) proceedings of specified classes;
(b) the institution of proceedings in,
or the transfer of proceedings to, the Supreme Court of the Northern Territory
of Australia.
(3) The Supreme Court of the Northern
Territory of Australia must not hear and determine de facto financial
causes otherwise than in accordance with any Proclamation in force under
subsection (1).
39D
Ceasing jurisdiction of State or Territory courts of summary jurisdiction
(1) The Governor‑General may, by
Proclamation, fix a day as the day on and after which a de facto financial
cause may not be instituted in, or transferred to, a court of summary
jurisdiction in a specified participating jurisdiction.
(2) Without limiting the generality of
subsection (1), a Proclamation under that subsection may be expressed to
apply only in relation to one or more of the following:
(a) proceedings of specified classes;
(b) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction in a
specified part of a participating jurisdiction;
(c) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction constituted
in a specified way.
(3) A court of summary jurisdiction must not
hear and determine de facto financial causes otherwise than in accordance
with any Proclamation in force under subsection (1).
39E
Revoking Proclamations ceasing jurisdiction of State or Territory courts
(1) The Governor‑General may, by
Proclamation, declare that a Proclamation under section 39C or 39D is
revoked on and from a specified day.
(2) If, under subsection (1), the
Governor‑General declares that a Proclamation under section 39C or
39D is revoked:
(a) this Part (including
sections 39C and 39D) has effect as if the revoked Proclamation had not
been made; but
(b) the effect of the revoked
Proclamation on the jurisdiction of courts before the specified day is not
affected.
39F
Territory court does not have jurisdiction unless a party is ordinarily
resident in the Territory
A court of a Territory must not hear or
determine a de facto financial cause unless at least one of the parties to
the proceedings is ordinarily resident in the Territory when the proceedings
are instituted or are transferred to the court.
39G
Jurisdiction in relation to transferred matters under other Commonwealth laws
If proceedings in relation to a matter
arising under a law of the Commonwealth are transferred under this Act to a
court that has jurisdiction conferred on or invested in it by this Division,
the jurisdiction so conferred on or invested in the court includes jurisdiction
in relation to that matter.
Division 3—Other provisions
40
Jurisdiction of Family Court
(1) The jurisdiction of the Family Court
under this Act shall not be exercised except in accordance with Proclamations
under this section.
(2) The Governor‑General may, by
Proclamation, fix a date as the date on and after which the jurisdiction of the
Family Court under this Act may be exercised in respect of all proceedings, or
a class of proceedings, in such States and Territories as are specified in the
Proclamation.
(3) The Governor‑General may, by
Proclamation, fix a date as the date on and after which matrimonial causes, and
other proceedings, referred to in subsection 39(5) may not be instituted in or
transferred to the Supreme Court of a State or Territory specified in the
Proclamation, or may be so instituted or transferred only where specified
conditions are complied with, and such a Proclamation may be expressed to apply
only to proceedings of a specified class or specified classes and may be
expressed to apply only to the institution of proceedings in, or the transfer
of proceedings to, a particular Registry or Registries of a Supreme Court
referred to in the Proclamation.
(4) The Supreme Court of a State or Territory
shall not hear and determine proceedings under this Act instituted in or
transferred to that Court otherwise than in accordance with any Proclamation in
force under subsection (3), but nothing in this section invalidates a
decree made by such a Supreme Court.
(4A) The Governor‑General may, by
Proclamation, declare that a Proclamation made under subsection (3) is
revoked on and from a specified date and, on and after the specified date, this
Act (including subsection (3)) has effect as if the revoked Proclamation
had not been made, but without prejudice to the effect of the revoked
Proclamation in respect of the jurisdiction of courts before the specified
date.
(5) Proclamations under subsections (2)
and (3) may be made from time to time.
(6) A party to proceedings instituted or
continued under this Act that are at any time pending in the Supreme Court of a
State or Territory, being proceedings that could, at the date of the
application under this subsection, have been instituted in the Family Court,
may apply to the Family Court for an order transferring the proceedings to the
Family Court, and the Court may order accordingly.
(7) The standard Rules of Court may make
provision in relation to matters arising in or in connexion with the transfer
of proceedings in accordance with an order under subsection (6).
(8) This
section does not apply in relation to proceedings under Part VII or in relation
to jurisdiction conferred on a federal court or a court of a Territory, or
invested in a court of a State, by regulations made for the purposes of section 111C.
40A
Exercise of jurisdiction of Federal Magistrates Court in certain States and
Territories
The jurisdiction of the Federal
Magistrates Court under this Act must not be exercised in respect of a
particular proceeding in a particular State or Territory if the corresponding
jurisdiction of the Family Court is not capable of being exercised in the State
or Territory.
41
Establishment of State Family Courts
(1) As soon as practicable after the
commencement of this Act, the Commonwealth Government shall take steps with a
view to the making of agreements with the governments of the States providing
for the creation of State courts to be known as Family Courts, being agreements
under which the Commonwealth Government will provide the necessary funds for
the establishment and administration of those courts (including the provision
of counselling facilities for those courts).
(2) Where, whether before or after the
commencement of this Act, a State has created a court known as a Family Court,
the Governor‑General may, by Proclamation, declare that, on and after a
date specified in the Proclamation, this section applies to that court.
(3) Where, by virtue of a Proclamation under subsection (2),
this section applies to a court, this Act has effect in relation to the
institution of proceedings on or after the date fixed by the Proclamation, and
in relation to proceedings so instituted and proceedings transferred to that
court in accordance with this Act, as if references in sections 39, 46, 94
and 96 to the Supreme Court of a State were, in relation to the State in which
the court referred to in the Proclamation is established, references to that
court, and that court is invested with federal jurisdiction accordingly.
(3A) Notwithstanding
the issue of a Proclamation under subsection (2) and the provisions of subsection (3):
(a) proceedings by way of cross‑proceedings
in relation to proceedings for principal relief that were pending in the
Supreme Court of the State concerned immediately before the date fixed by the
Proclamation; or
(b) proceedings of a kind referred to
in any of paragraphs (c) to (f) of the definition of matrimonial
cause in subsection 4(1) that:
(i) relate to proceedings
for principal relief that were pending in the Supreme Court of the State
concerned immediately before the date fixed by the Proclamation; or
(ii) are between parties
between whom proceedings of a kind referred to in any of paragraphs (c) to
(f) of that definition were so pending immediately before that date;
may be instituted, heard and determined in that Supreme
Court on or after the date fixed by the Proclamation.
(4) The Governor‑General shall not make
a Proclamation under this section in respect of a court unless the Governor‑General
is satisfied that:
(a) arrangements have been made under
which Judges will not be appointed to that court except with the approval of
the Attorney‑General of the Commonwealth;
(b) Judges appointed to that court are
by reason of training, experience and personality, suitable persons to deal
with matters of family law and cannot hold office beyond the age of 70 years;
and
(c) appropriate family counselling and
family dispute resolution services, and family consultants, will be available
to that court.
(4A) A party to proceedings instituted or
continued under this Act that are at any time pending in the Supreme Court of a
State or Territory, being proceedings that could, at the date of the
application under this subsection, have been instituted in a Family Court of a
State, may apply to a Family Court of a State for an order transferring the
proceedings to that Court, and the Court may order accordingly.
(5) References in this Act or the standard
Rules of Court to a court of summary jurisdiction shall not be read as
including references to a court to which this section applies.
42 Law
to be applied
(1) The jurisdiction conferred on a court, or
with which a court is invested, by this Act shall be exercised in accordance
with this Act and the applicable Rules of Court.
(2) Where it would be in accordance with the
common law rules of private international law to apply the laws of any country
or place (including a State or Territory), the court shall, subject to the
provisions of the Marriage Act 1961, apply the laws of that country or
place.
Note: Subdivision D of Division 4 of Part XIIIAA
(Applicable law) may affect the law to be applied by a court.
43
Principles to be applied by courts
(1) The Family Court shall, in the exercise
of its jurisdiction under this Act, and any other court exercising jurisdiction
under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect
the institution of marriage as the union of a man and a woman to the exclusion
of all others voluntarily entered into for life;
(b) the need to give the widest
possible protection and assistance to the family as the natural and fundamental
group unit of society, particularly while it is responsible for the care and
education of dependent children;
(c) the need to protect the rights of
children and to promote their welfare;
(ca) the need to ensure safety from
family violence; and
(d) the means available for assisting
parties to a marriage to consider reconciliation or the improvement of their
relationship to each other and to their children.
(2) Paragraph (1)(a) does not apply in
relation to the exercise of jurisdiction conferred or invested by
Division 2.
44
Institution of proceedings
(1) Except as otherwise prescribed by the
regulations or by the applicable Rules of Court, proceedings under this Act
shall be instituted by application.
(1A) Proceedings under this Act for:
(a) a divorce order in relation to a
marriage; or
(b) a decree of nullity of marriage;
may be instituted by either party to the marriage or
jointly by both parties to the marriage.
(1B) An application for a divorce order in
relation to a marriage shall not, without the leave of the court granted under subsection (1C),
be filed within the period of 2 years after the date of the marriage unless
there is filed with the application a certificate:
(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
(b) signed by that person or on behalf
of that organisation, as the case may be.
(1C) Notwithstanding subsection (1B), if
the court is satisfied that there are special circumstances by reason of which
the hearing of an application for a divorce order in relation to a marriage
should proceed notwithstanding that the parties have not considered a
reconciliation with assistance of the kind referred to in subsection (1B),
the court may:
(a) if the application has not been
filed—give leave for the application to be filed; or
(b) if the application has been
filed—at any time before or during the hearing of the application, declare that
it is so satisfied;
and, where the court makes a declaration under paragraph (b),
the application shall be deemed to have been duly filed and everything done
pursuant to that application shall be as valid and effectual as if the court
had, before the application was filed, given leave under paragraph (a) for
the application to be filed.
(2) Notwithstanding subsections (3) and
(3A), a respondent may, in an answer to an application, include an application
for any decree or declaration under this Act.
(3) Where, whether before or after the
commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect;
or
(b) a decree of nullity of marriage
has been made;
proceedings of a kind referred to in paragraph (c),
(caa), (ca) or (cb) of the definition of matrimonial cause in
subsection 4(1) (not being proceedings under section 78 or 79A or
proceedings seeking the discharge, suspension, revival or variation of an order
previously made in proceedings with respect to the maintenance of a party)
shall not be instituted, except by leave of the court in which the proceedings
are to be instituted or with the consent of both of the parties to the
marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)—the
date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)—the
date of the making of the decree.
The court may grant such leave at any time, even if the
proceedings have already been instituted.
(3AA) However, if such proceedings are instituted
with the consent of both of the parties to the marriage, the court may dismiss
the proceedings if it is satisfied that, because the consent was obtained by
fraud, duress or unconscionable conduct, allowing the proceedings to continue
would amount to a miscarriage of justice.
(3A) Notwithstanding subsection (3), where,
whether before or after the commencement of section 21 of the Family
Law Amendment Act 1983:
(a) a divorce order has taken effect
or a decree of nullity of marriage has been made; and
(b) the approval under section 87
of a maintenance agreement between the parties to the marriage has been
revoked;
proceedings of a kind referred to in paragraph (c),
(caa), (ca) or (cb) of the definition of matrimonial cause in
subsection 4(1) (not being proceedings under section 78 or 79A or
proceedings seeking the discharge, suspension, revival or variation of an order
previously made in proceedings with respect to the maintenance of a party) may
be instituted:
(c) within the period of 12 months
after:
(i) the date on which the
divorce order took effect or the date of the making of the decree of nullity,
as the case may be; or
(ii) the date on which the
approval of the maintenance agreement was revoked;
whichever is the later; or
(d) with the leave of the court in
which the proceedings are to be instituted;
and not otherwise.
(3B) Despite subsection (3), if, whether
before or after the commencement of Schedule 2 to the Family Law
Amendment Act 2000:
(a) a divorce order has taken effect
or a decree of nullity of marriage has been made; and
(b) a financial agreement between the
parties to the marriage has been set aside under section 90K or found to
be invalid under section 90KA;
proceedings of a kind referred to in paragraph (c),
(caa), (ca) or (cb) of the definition of matrimonial cause in
subsection 4(1) (not being proceedings under section 78 or 79A or
proceedings seeking the discharge, suspension, revival or variation of an order
previously made in proceedings with respect to the maintenance of a party) may
be instituted:
(c) within
the period of 12 months after the later of:
(i) the date on which the
divorce order took effect or the date of the making of the decree of nullity,
as the case may be; or
(ii) the date on which the
financial agreement was set aside, or found to be invalid, as the case may be;
or
(d) with the leave of the court in
which the proceedings are to be instituted;
and not otherwise.
(4) The court
shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a
party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in
relation to the maintenance of a party to a marriage—that, at the end of the
period within which the proceedings could have been instituted without the
leave of the court, the circumstances of the applicant were such that the
applicant would have been unable to support himself or herself without an
income tested pension, allowance or benefit.
(5) Subject to subsection (6), a party
to a de facto relationship may apply for:
(a) an order under section 90SE,
90SG or 90SM; or
(b) a declaration under
section 90SL;
only if the application is made within the period of 2
years after the end of the de facto relationship (the standard
application period).
(6) The court may grant the party leave to
apply after the end of the standard application period if the court is
satisfied that:
(a) hardship would be caused to the
party or a child if leave were not granted; or
(b) in the case of an application for
an order for the maintenance of the party—the party’s circumstances were, at
the end of the standard application period, such that he or she would have been
unable to support himself or herself without an income tested pension,
allowance or benefit.
44A
Proceedings for divorce order
The regulations may provide that proceedings
for a divorce order may not be instituted in, or transferred to, a court of
summary jurisdiction other than a prescribed court.
45
Stay and transfer of proceedings
(1) Where there are pending in a court
proceedings that have been instituted under this Act or are being continued in
accordance with any of the provisions of section 9 and it appears to that
court that other proceedings that have been so instituted or are being so
continued in relation to the same marriage or void marriage or the same matter
are pending in another court, the first‑mentioned court may stay the
first‑mentioned proceedings for such time as it considers appropriate or
may dismiss the proceedings.
(1A) For the purposes of subsection (1), if
the bankruptcy trustee of a bankrupt party to a marriage applies under section 139A
of the Bankruptcy Act 1966 for an order under Division 4A of Part VI
of that Act, proceedings relating to that application are taken to be
proceedings under this Act in relation to the marriage.
(1B) For the purposes of subsection (1):
(a) a de facto financial cause
instituted in relation to a de facto relationship; and
(b) proceedings relating to an
application, by the bankruptcy trustee of one of the parties to the
de facto relationship, under section 139A of the Bankruptcy Act
1966 for an order under Division 4A of Part VI of that Act;
are taken to be proceedings under this Act in relation to
the same matter.
(1C) For the purposes of subsection (1),
the first proceedings set out in each item of following table, and the second
proceedings set out in that item, are taken to relate to the same matter if one
of the parties to each marriage, void marriage or de facto relationship
referred to in that item is the same.
|
Proceedings relating to
the same matter
|
|
Item
|
First proceedings
|
Second proceedings
|
|
1
|
a matrimonial cause
instituted in relation to a marriage (or void marriage)
|
a de facto financial
cause instituted in relation to a de facto relationship
|
|
2
|
a de facto financial
cause instituted in relation to a de facto relationship
|
a de facto financial
cause instituted in relation to a de facto relationship
|
(2) Where there are pending in a court
proceedings that have been instituted under this Act or are being continued in
accordance with any of the provisions of section 9 and it appears to that
court that it is in the interests of justice, or of convenience to the parties,
that the proceedings be dealt with in another court having jurisdiction under
this Act, the court may transfer the proceedings to the other court. However,
this subsection does not apply to particular proceedings if:
(a) the first‑mentioned court is
the Family Court and the other court is the Federal Magistrates Court; or
(b) the first‑mentioned court is
the Federal Magistrates Court and the other court is the Family Court.
Note 1: For transfers from the Family Court to the
Federal Magistrates Court, see section 33B.
Note 2: For transfers from the Federal Magistrates
Court to the Family Court, see section 39 of the Federal Magistrates
Act 1999.
(3) A transfer under subsection (2) may
be made on the application of any party to the proceedings.
(4) A transfer under subsection (2) may
be made on the transferring court’s own initiative if the transfer is:
(a) from a Family Court of a State to
a court of summary jurisdiction prescribed in regulations made for the purposes
of section 44A; or
(b) from a court of summary
jurisdiction prescribed in those regulations to a Family Court of a State.
46
Transfer of proceedings from court of summary jurisdiction in certain cases
(1) Where proceedings are instituted in a
court of summary jurisdiction in relation to property of a total value
exceeding the ceiling amount and the respondent, in answer to the application
by which the proceedings are instituted, seeks an order different from that
sought in the application:
(a) the court must, before proceeding
to hear and determine the proceedings, inform the parties that, unless each of
them consents to the court hearing and determining the proceedings, the court
is required to transfer the proceedings to:
(i) the Family Court; or
(ii) the Supreme Court of a
State or Territory; or
(iii) the Federal Magistrates
Court; and
(b) unless
the parties consent to the court hearing and determining the proceedings—the
court must transfer the proceedings to:
(i) the Family Court; or
(ii) the Supreme Court of a
State or Territory; or
(iii) the Federal Magistrates
Court.
(1AA) For the purposes of subsection (1), the ceiling
amount is:
(a) if the court of summary jurisdiction
is the Magistrates Court of Western Australia constituted by a Family Law
Magistrate of Western Australia—the amount specified in the regulations; or
(b) otherwise—$20,000.
(1A) A reference in subsection (1) to
proceedings with respect to property does not include a reference to
proceedings with respect to arrears of maintenance.
(1AB) In determining the value of any property for
the purposes of subsection (1), any mortgage, lien, charge or other
security over the property is to be disregarded.
(1B) Subject to subsection (1C), if:
(a) proceedings referred to in subsection (1)
are instituted in a court of summary jurisdiction; and
(b) the parties consent to the
proceedings being heard and determined by that court;
a party is not entitled subsequently to object to the
proceedings being so heard and determined.
(1C) If the court subsequently gives leave to a
party to object to the proceedings being so heard and determined, the court
must transfer the proceedings to:
(a) the Family Court; or
(b) the Supreme Court of a State or
Territory; or
(c) the Federal Magistrates Court.
(2) Where proceedings referred to in subsection (1)
are before it, the court may transfer the proceedings of its own motion,
notwithstanding that the parties would be willing for the court to hear and
determine the proceedings.
(2A) If:
(a) proceedings for a divorce order
have been instituted in or transferred to a court of summary jurisdiction; and
(b) the proceedings are defended;
the court is required to transfer the proceedings to:
(c) the Family Court; or
(d) the Supreme Court of a State or
Territory; or
(e) the Federal Magistrates Court.
(2B) Subsection (2A) does not apply if the
court is the Magistrates Court of Western Australia constituted by a Family Law
Magistrate of Western Australia.
(3) Before transferring proceedings under subsection (1)
or (2A), the court may make such orders as it considers necessary pending the
disposal of the proceedings by the court to which they are to be transferred.
(3A) If proceedings instituted under this Act,
or continued under section 9, are pending in a court of summary
jurisdiction, each of the following Courts:
(a) the Family Court;
(b) the Supreme Court of a State or
Territory;
(c) the Federal Magistrates Court;
may, on the application of a party or of its own motion,
order that the proceedings be removed to that Court.
(4) Where proceedings are transferred or
removed to a court in pursuance of this section, that court shall proceed as if
the proceedings had been originally instituted in that court.
(5) Without prejudice to the duty of a court
of summary jurisdiction to comply with this section, failure by such a court so
to comply does not invalidate any order of the court in the proceedings.
47
Courts to act in aid of each other
All
courts having jurisdiction under this Act shall severally act in aid of and be
auxiliary to each other in all matters under this Act.
Part VI—Divorce and nullity of marriage
48 Divorce
(1) An application under this Act for a divorce
order in relation to a marriage shall be based on the ground that the marriage
has broken down irretrievably.
(2) Subject to subsection (3), in a
proceeding instituted by such an application, the ground shall be held to have
been established, and the divorce order shall be made, if, and only if, the
court is satisfied that the parties separated and thereafter lived separately
and apart for a continuous period of not less than 12 months immediately
preceding the date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the
court is satisfied that there is a reasonable likelihood of cohabitation being
resumed.
49
Meaning of separation
(1) The parties to a marriage may be held to
have separated notwithstanding that the cohabitation was brought to an end by
the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to
have separated and to have lived separately and apart notwithstanding that they
have continued to reside in the same residence or that either party has
rendered some household services to the other.
50
Effect of resumption of cohabitation
(1) For the purposes of proceedings for a
divorce order, where, after the parties to the marriage separated, they resumed
cohabitation on one occasion but, within a period of 3 months after the
resumption of cohabitation, they again separated and thereafter lived
separately and apart up to the date of the filing of the application, the
periods of living separately and apart before and after the period of
cohabitation may be aggregated as if they were one continuous period, but the
period of cohabitation shall not be deemed to be part of the period of living
separately and apart.
(2) For the purposes of subsection (1),
a period of cohabitation shall be deemed to have continued during any
interruption of the cohabitation that, in the opinion of the court, was not
substantial.
51
Nullity of marriage
An application under this Act for a
decree of nullity of marriage shall be based on the ground that the marriage is
void.
52
Court not to make divorce order where application for decree of nullity before
it
Where both an application for a decree
of nullity of a marriage and an application for a divorce order in relation to
that marriage are before a court, the court shall not make a divorce order in
relation to the marriage unless it has dismissed the application for a decree
of nullity of the marriage.
53
Circumstances occurring before commencement of Act or outside Australia
A decree may be made, or refused, under
this Part by reason of facts and circumstances notwithstanding that those facts
and circumstances, or some of them, took place before the commencement of this
Act or outside Australia.
55
When divorce order takes effect
(1) Subject to this section, a divorce order
made under this Act takes effect by force of this section:
(a) at the expiration of a period of 1
month from the making of the order; or
(b) from the making of an order under
section 55A;
whichever is the later.
(2) If a divorce order has been made
in any proceedings, the court of first instance (whether or not it made the
order), or a court in which an appeal has been instituted, may, either before
or after it has disposed of the proceedings or appeal, and whether or not a
previous order has been made under this subsection:
(a) make an order extending the period
at the expiration of which the divorce order will take effect, having regard to
the possibility of an appeal or further appeal; or
(b) make an order reducing the period
at the expiration of which the divorce order will take effect if it is
satisfied that there are special circumstances that justify its so doing.
(3) If an appeal is instituted (whether or
not it is the first appeal) before a divorce order has taken effect, then,
notwithstanding any order in force under subsection (2) at the time of the
institution of the appeal but subject to any such order made after the
institution of the appeal, the divorce order, unless reversed or rescinded, takes
effect by force of this section:
(a) at the expiration of a period of 1
month from the day on which the appeal is determined or discontinued; or
(b) on the day on which the divorce
order would have taken effect under subsection (1) if no appeal had been
instituted;
whichever is the later.
(4) A divorce order does not take effect by
force of this section if either of the parties to the marriage has died.
(5) In this section:
appeal, in relation to a divorce order,
means:
(a) an appeal or application for leave
to appeal against, or an intervention or application for a re‑hearing
relating to:
(i) the divorce order; or
(ii) an order under section 55A
in relation to the proceedings in which the divorce order was made; or
(b) an application under section 57
or 58 for rescission of the divorce order or an appeal or application for leave
to appeal arising out of such an application.
(6) For the purposes of this section, where
an application for leave to appeal, or for a re‑hearing, is granted, the
application shall be deemed not to have been determined or discontinued so long
as:
(a) the leave granted remains capable
of being exercised; or
(b) an appeal or re‑hearing
instituted in pursuance of the leave is pending.
55A Divorce
order where children
(1) A divorce order in relation to a marriage
does not take effect unless the court has, by order, declared that it is
satisfied:
(a) that there are no children of the
marriage who have not attained 18 years of age; or
(b) that the only children of the marriage
who have not attained 18 years of age are the children specified in the order
and that:
(i) proper arrangements in
all the circumstances have been made for the care, welfare and development of
those children; or
(ii) there are
circumstances by reason of which the divorce order should take effect even
though the court is not satisfied that such arrangements have been made.
(2) Where, in proceedings for a divorce order
in relation to a marriage, the court doubts whether the arrangements made for
the care, welfare and development of a child of the marriage are proper in all
the circumstances, the court may adjourn the proceedings until a report has
been obtained from a family consultant regarding those arrangements.
(3) For the
purposes of this section, a child (including an ex‑nuptial child of
either the husband or the wife, a child adopted by either of them or a child
who is not a child of either of them) is a child of the marriage if the child
was treated by the husband and wife as a child of their family at the relevant
time.
(4) For the purposes of subsection (3),
the relevant time is the time immediately before the time when the husband and
wife separated or, if they have separated on more than one occasion, the time
immediately before the time when they last separated before the institution of
the proceedings in which the divorce order was made.
56
Certificate as to divorce order
(1) If a divorce order takes effect, the
Registry Manager of the court by which the order was made must prepare and file
a memorandum of the fact and of the date on which the divorce order took
effect.
(2) If a
divorce order has taken effect, any person is entitled, on application to the
Registry Manager of the court by which the divorce order was made, to receive a
certificate signed by the Registrar of that court that the divorce order has
taken effect.
(3) A certificate given under subsection (2)
is, in all courts (whether exercising federal jurisdiction or not) and for all
purposes, evidence of the matters specified in the certificate.
(4) The regulations may provide for the
establishment of central records of decrees made under this Act and for the
notification of decrees to the appropriate marriage registering authorities of
the States and Territories.
57
Rescission of divorce order where parties reconciled
Despite
anything contained in this Part, if a divorce order has been made in
relation to a marriage, the court may, at any time before the order takes
effect, upon the application of the parties to the marriage, rescind the
divorce order on the ground that the parties have become reconciled.
58
Rescission of divorce order on ground of miscarriage of justice
If a divorce order has been made
in proceedings but has not taken effect, the court by which the divorce order
was made may, on the application of a party to the proceedings, or on the
intervention of the Attorney‑General, if it is satisfied that there has
been a miscarriage of justice by reason of fraud, perjury, suppression of
evidence or any other circumstance, rescind the divorce order and, if it thinks
fit, order that the proceedings be re‑heard.
59 Re‑marriage
If a
divorce order under this Act in relation to a marriage has taken effect, a
party to the marriage may marry again.
Part VII—Children
Division 1—Introductory
Subdivision A—What this Division does
60A
What this Division does
This Division contains:
(a) a statement of the object of this
Part and the principles underlying it, and an outline of this Part (Subdivision
B); and
(b) provisions relevant to the
interpretation and application of this Part (Subdivision C); and
(c) provisions relevant to how this
Act applies to certain children (Subdivision D).
Note: The extension and application of this Part is
also dealt with in Subdivision F of Division 12.
Subdivision B—Object, principles and outline
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.
60C
Outline of Part
An outline
of this Part is set out below.
|
OUTLINE OF PART
|
|
Item
|
Divisions and coverage
|
|
1
|
Division 1—Introductory
·
object of Part and principles underlying it, and outline of
Part
·
interpretation and application of this Part
·
how this Act applies to certain children
Note: The extension and application of this Part is
also dealt with in Subdivision F of Division 12.
|
|
2
|
Division 2—Parental responsibility
·
the concept of parental responsibility
|
|
3
|
Division 3—Reports relating to children under 18
preparation of reports for use in proceedings relating to
children under 18
|
|
4
|
Division 4—Parenting plans
·
what parenting plans are
|
|
5
|
Division 5—Parenting orders—what they are
·
what parenting orders are
|
|
6
|
Division 6—Parenting orders other than child
maintenance orders
·
applying for and making parenting orders (other than child
maintenance orders) after attending, if necessary, family dispute resolution
(see section 60I)
·
general obligations created by parenting orders, other than
child maintenance orders
·
measures to promote the exercise of parental responsibility
·
dealing with people who have been arrested
·
obligations under parenting orders, other than child
maintenance orders, relating to taking or sending children from Australia
|
|
7
|
Division 7—Child maintenance orders
·
objects and principles relevant to the making of child
maintenance orders
·
the relationship between Division 7 and the Child
Support (Assessment) Act 1989
·
applying for and making child maintenance orders
·
other aspects of courts’ powers in relation to child
maintenance orders
·
when child maintenance orders stop being in force
|
|
8
|
Division 8—Other matters relating to children
·
liability of a father to contribute towards child bearing
expenses if he is not married to the child’s mother
·
orders for the location and recovery of children
·
reporting of allegations of child abuse
·
other orders about children
|
|
9
|
Division 9—Injunctions
·
proceedings for injunctions in relation to children
|
|
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
|
|
11
|
Division 11—Family violence
·
the relationship between certain parenting orders and family
violence orders
|
|
12
|
Division 12—Proceedings and jurisdiction
·
institution of proceedings and procedure
·
jurisdiction of courts
·
presumptions of parentage
·
parentage evidence
·
places and people to which this Part extends and applies
|
|
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
|
|
13
|
Division 13—State, Territory and overseas orders
·
registration of State and Territory orders dealing with
children
·
registration of overseas orders dealing with children
·
transmission of Australian orders to overseas jurisdictions
|
|
13A
|
Division 13A—Enforcement of orders
affecting children
·
court may do any or all of the following:
(a) require
a person who contravenes an order affecting children to participate in an
appropriate post‑separation parenting program designed to help in the
resolution of conflicts about parenting;
(b) make
a further parenting order that compensates 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, as a result of the contravention;
(c) adjourn
the proceedings to enable an application to be made for a further parenting
order;
·
court must take other action in respect of a person who
contravenes an order affecting children if the court is satisfied:
(a) where
the contravention is an initial contravention—that the person has behaved in
a way that showed a serious disregard for his or her parenting obligations;
or
(b) where
the contravention is a second or subsequent contravention—that it is not
appropriate for the person to be dealt with by requiring his or her
attendance at a post‑separation parenting program;
|
|
14
|
Division 14—Miscellaneous
·
miscellaneous matters relating to children
|
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.
Subdivision C—Interpretation and application of Part
60E
Application of Part to void marriages
This Part applies in relation to a
purported marriage that is void as if:
(a) the purported marriage were a
marriage; and
(b) the parties to the purported
marriage were husband and wife.
Subdivision D—Interpretation—how this Act applies to certain children
60EA
Definition of de facto partner
For the purposes of this Subdivision, a
person is the de facto partner of another person if:
(a) a relationship between the person
and the other person (whether of the same sex or a different sex) is registered
under a law of a State or Territory prescribed for the purposes of
section 22B of the Acts Interpretation Act 1901 as a kind of
relationship prescribed for the purposes of that section; or
(b) the person is in a de facto
relationship with the other person.
60F
Certain children are children of marriage etc.
(1) A reference in this Act to a child of a
marriage includes, subject to subsection (3), a reference to each of the
following children:
(a) a child adopted since the marriage
by the husband and wife or by either of them with the consent of the other;
(b) a child of the husband and wife
born before the marriage;
(c) a child who is, under subsection
60H(1) or section 60HB, the child of the husband and wife.
(2) A reference in this Act to a child of a
marriage includes a reference to a child of:
(a) a marriage that has been
terminated by divorce or annulled (in Australia or elsewhere); or
(b) a marriage that has been
terminated by the death of one party to the marriage.
(3) A child of a marriage who is adopted by a
person who, before the adoption, is not a prescribed adopting parent ceases to
be a child of that marriage for the purposes of this Act.
(4) The following provisions apply in
relation to a child of a marriage who is adopted by a prescribed adopting
parent:
(a) if a court granted leave under
section 60G for the adoption proceedings to be commenced—the child ceases
to be a child of the marriage for the purposes of this Act;
(b) in any other case—the child
continues to be a child of the marriage for the purposes of this Act.
(4A) To avoid doubt, for the purposes of this
Act, a child of a marriage is a child of the husband and of the wife in the
marriage.
(5) In this section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates
Rules.
60G
Family Court may grant leave for adoption proceedings by prescribed adopting
parent
(1) Subject to subsection (2), the
Family Court, the Supreme Court of the Northern Territory or the Family Court
of a State may grant leave for proceedings to be commenced for the adoption of
a child by a prescribed adopting parent.
(2) In
proceedings for leave under subsection (1), the court must consider
whether granting leave would be in the child’s best interests, having regard to
the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E
and 65J.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
60H
Children born as a result of artificial conception procedures
(1) If:
(a) a child is born to a woman as a
result of the carrying out of an artificial conception procedure while the
woman was married to, or a de facto partner of, another person (the other
intended parent); and
(b) either:
(i) the woman and the
other intended parent consented to the carrying out of the procedure, and any
other person who provided genetic material used in the procedure consented to
the use of the material in an artificial conception procedure; or
(ii) under a prescribed law
of the Commonwealth or of a State or Territory, the child is a child of the
woman and of the other intended parent;
then, whether or not the child is biologically a child of
the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the
woman and of the other intended parent; and
(d) if a person other than the woman
and the other intended parent provided genetic material—the child is not the
child of that person.
(2) If:
(a) a child is born to a woman as a
result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the
Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of
the woman, the child is her child for the purposes of this Act.
(3) If:
(a) a child is born to a woman as a
result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the
Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of
the man, the child is his child for the purposes of this Act.
(5) For the purposes of subsection (1),
a person is to be presumed to have consented to an artificial conception
procedure being carried out unless it is proved, on the balance of
probabilities, that the person did not consent.
(6) In this section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates
Rules.
60HA
Children of de facto partners
(1) For the purposes of this Act, a child is
the child of a person who has, or had, a de facto partner if:
(a) the child is a child of the person
and the person’s de facto partner; or
(b) the child is adopted by the person
and the person’s de facto partner or by either of them with the consent of
the other; or
(c) the child is, under subsection
60H(1) or section 60HB, a child of the person and the person’s
de facto partner.
This subsection has effect subject to subsection (2).
(2) A child of current or former
de facto partners ceases to be a child of those partners for the purposes
of this Act if the child is adopted by a person who, before the adoption, is
not a prescribed adopting parent.
(3) The following provisions apply in
relation to a child of current or former de facto partners who is adopted
by a prescribed adopting parent:
(a) if a court granted leave under
section 60G for the adoption proceedings to be commenced—the child ceases
to be a child of those partners for the purposes of this Act;
(b) in any other case—the child
continues to be a child of those partners for the purposes of this Act.
(4) In this section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates
Rules.
60HB
Children born under surrogacy arrangements
(1) If a court has made an order under a
prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or
more persons; or
(b) each of one or more persons is a
parent of a child;
then, for the purposes of this Act, the child is the child
of each of those persons.
(2) In this section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates
Rules.
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 30 June 2008)
(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 1 July 2008; 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 1 July 2008)
(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 1 July 2008.
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;
(d) a certificate to the effect that
the person began attending 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 practitioner considers,
having regard to the matters prescribed by the regulations for the purposes of
this paragraph, that it would not be appropriate to continue the family dispute
resolution.
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.
Division 2—Parental responsibility
61A
What this Division does
This Division deals with the concept of
parental responsibility including, in particular:
(a) what parental responsibility is;
and
(b) who has parental responsibility.
61B
Meaning of parental responsibility
In this Part, parental
responsibility, in relation to a child, means all the duties, powers, responsibilities
and authority which, by law, parents have in relation to children.
61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not
18 has parental responsibility for the child.
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.
(2) Subsection (1) has effect despite
any changes in the nature of the relationships of the child’s parents. It is
not affected, for example, by the parents becoming separated or by either or
both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to
any order of a court for the time being in force (whether or not made under
this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution
of parental responsibility for a child.
61D
Parenting orders and parental responsibility
(1) A parenting order confers parental
responsibility for a child on a person, but only to the extent to which the
order confers on the person duties, powers, responsibilities or authority in
relation to the child.
(2) A parenting order in relation to a child
does not take away or diminish any aspect of the parental responsibility of any
person for the child except to the extent (if any):
(a) expressly provided for in the
order; or
(b) necessary to give effect to the
order.
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.
61E
Effect of adoption on parental responsibility
(1) This section applies if:
(a) a child is adopted; and
(b) immediately before the adoption, a
person had parental responsibility for the child, whether in full or to a
limited extent and whether because of section 61C or because of a
parenting order.
(2) The person’s parental responsibility for
the child ends on the adoption of the child, unless the adoption is by a
prescribed adopting parent and leave was not granted under section 60G for
the adoption proceedings to be commenced.
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.
Division 3—Reports relating to children under 18
62A
What this Division does
This Division deals with the preparation
of reports for use in proceedings relating to children who are under 18.
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).
62G
Reports by family consultants
(1) This section applies if, in proceedings
under this Act, the care, welfare and development of a child who is under 18 is
relevant.
(2) The court may direct a family consultant
to give the court a report on such matters relevant to the proceedings as the
court thinks desirable.
(3) If the court makes a direction under subsection (2),
it may, if it thinks it necessary, adjourn the proceedings until the report has
been given to the court.
(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.
(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).
(6) If a person fails to comply with an order
or direction under subsection (5), the family consultant must report the
failure to the court.
(7) On receiving a report under subsection (6),
the court may give such further directions in relation to the preparation of
the report as it considers appropriate.
(8) A report given to the court pursuant to a
direction under subsection (2) may be received in evidence in any
proceedings under this Act.
Division 4—Parenting plans
63A
What this Division does
This Division explains what parenting
plans are.
63B
Parents encouraged to reach agreement
The parents of a child are encouraged:
(a) to agree about matters concerning
the child; and
(b) to take responsibility for their
parenting arrangements and for resolving parental conflict; and
(c) to use the legal system as a last
resort rather than a first resort; and
(d) to minimise the possibility of
present and future conflict by using or reaching an agreement; and
(e) in reaching their agreement, to
regard the best interests of the child as the paramount consideration.
Note: Parents are encouraged to reach an informal
agreement between themselves about matters concerning their children by
entering into a parenting plan. Parents who seek enforceable arrangements
require court orders. These can be obtained by consent.
63C
Meaning of parenting plan and related terms
(1) A parenting plan is an
agreement that:
(a) is in writing; and
(b) is or was made between the parents
of a child; and
(ba) is signed by the parents of the
child; and
(bb) is dated; and
(c) deals with a matter or matters
mentioned in subsection (2).
(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.
(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.
(3) An agreement may be a parenting plan:
(a) whether made before or after the
commencement of this section; and
(b) whether made inside or outside Australia;
and
(c) whether other persons as well as a
child’s parents are also parties; and
(d) whether it deals with other
matters as well as matters mentioned in subsection (2).
Note: One of the other matters with which a
parenting plan may deal is child support (see section 63CAA).
(4) Provisions of a parenting plan that deal
with matters other than the maintenance of a child are child welfare
provisions.
(5) Provisions of a parenting plan that deal
with the matter mentioned in paragraph (2)(f) are child maintenance
provisions.
(6) A registered parenting plan
is a parenting plan:
(a) that was registered in a court
under section 63E as in force at any time before the commencement of the Family
Law Amendment Act 2003; and
(b) that continued to be registered
immediately before the commencement of the Family Law Amendment Act 2003.
63CAA
Parenting plans may include child support provisions
(1) If a parenting plan includes provisions
of a kind referred to in subsection 84(1) of the Child Support (Assessment)
Act 1989, the provisions do not have effect for the purposes of this Act.
(2) Subsection (1) does not affect the
operation of the provisions for any other purpose.
(3) Nothing in this Division is to be taken
to prevent the same agreement being both a parenting plan under this Part and a
child support agreement under Part 6 of the Child Support (Assessment)
Act 1989.
63D
Parenting plan may be varied or revoked by further written agreement
A parenting plan, other than a plan to
which section 63DB applies, may be varied or revoked by agreement in writing
between the parties to the plan.
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.
63DB
Registered parenting plans
Application of section
(1) This section applies to a registered
parenting plan.
Saving of registered parenting plan
(2) A registered parenting plan continues in
force until revoked in accordance with section 63E, or set
aside, varied or discharged as referred to in section 63H.
No variation of registered parenting plan
(3) A registered parenting plan cannot be
varied.
Revocation of registered parenting plan
(4) Subject to subsection (5), a
registered parenting plan may be revoked by agreement in writing between the
parties to the plan.
Registration of revocation required
(5) An agreement revoking a registered
parenting plan:
(a) may, subject to the applicable
Rules of Court, be registered, in a court having jurisdiction under this Part,
under section 63E; and
(b) does not have effect to revoke the
plan until it is so registered.
63E Registration
of a revocation of a registered parenting plan
(1) This section applies to a registered
parenting plan.
(2) To apply for registration of an agreement
(revocation agreement) revoking a registered parenting
plan:
(a) an application for registration of
the revocation agreement must be lodged in accordance with the applicable Rules
of Court; and
(b) the application must be
accompanied by:
(i) a copy of the
revocation agreement; and
(ii) the information
required by the applicable Rules of Court; and
(iii) a statement, in
relation to each party, that is to the effect that the party has been provided
with independent legal advice as to the meaning and effect of the revocation
agreement and that is signed by the practitioner who provided that advice.
(3) The court may register the revocation
agreement if it considers it appropriate to do so having regard to the best
interests of the child to whom the agreement relates. In determining whether it
is appropriate to register the revocation agreement, the court:
(a) must have regard to the
information accompanying the application for registration; and
(b) may, but is not required to, have
regard to all or any of the matters set out in subsections 60CC(2) and (3).
63F
Child welfare provisions of registered parenting plans
Application of section
(1) This section applies to a registered
parenting plan that contains child welfare provisions.
(2) The court may, by order, vary the child
welfare provisions in the plan if it considers the variation is required in the
best interests of a child.
(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.
(4) If provisions of the plan have effect
under subsection (3) as a court order, a person who is a party to the plan
is taken (for example, for the purposes of section 65Y) to be a party to
the proceedings in which the order was made.
(5) Subsection (3) does not apply to the
plan (whenever registered) to the extent (if at all) that the plan purports to
determine that the child concerned is to live with a person who is not a parent
of the child.
(6) Even though the plan is registered, the
court, or another court having jurisdiction under this Part, must not enforce
the child welfare provisions if it considers that to do so would be contrary to
the best interests of a child.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
63G
Child maintenance provisions of registered parenting plans—where not
enforceable as maintenance agreements
(1) This section applies if:
(a) a registered parenting plan
contains child maintenance provisions; and
(b) the plan is not a maintenance
agreement or, if it is a maintenance agreement, the child concerned is not a
child of the relevant marriage.
(2) The child maintenance provisions have
effect, subject to subsections (3), (4) and (5), as if they were a child
maintenance order made by the court.
Note: Provisions of this Act relevant to the child
maintenance provisions having effect as a child maintenance order include:
(a) Parts XIII and XIIIA (dealing generally with
enforcement of orders and sanctions for contravening orders); and
(b) section 66S (providing for discharge,
variation, suspension and revival of child maintenance orders); and
(c) other provisions of this Act that refer to
parenting orders, or to child maintenance orders.
(3) Unless the plan provides otherwise, the
child maintenance provisions (other than provisions for the periodic payment of
maintenance) continue to operate in spite of the death of a party to the plan
and operate in favour of, and are binding on, the legal personal representative
of that party.
(4) If the child maintenance provisions
include provisions (the periodic provisions) for the periodic
payment of maintenance:
(a) the periodic provisions continue
to operate, if the plan so provides, in spite of the death of a party to the
plan who is liable to make the periodic payments, and are binding on the legal
personal representative of that party; but
(b) the periodic provisions do not
continue to operate, in spite of anything in the plan, after the death of the
person entitled to receive the periodic payments.
(5) The child
maintenance provisions have no effect, and are not enforceable in any way, at
any time when an application could properly be made under the Child Support
(Assessment) Act 1989 by one of the parties to the plan for administrative
assessment of child support (within the meaning of that Act) for the child
concerned.
Note: This subsection does not affect the operation
of provisions of a parenting plan referred to in section 63CAA (child
support matters).
(6) Subsection (5) has effect whether or
not an application for administrative assessment of child support for the child
has in fact been made by a party to the plan.
63H
Court’s powers to set aside, discharge, vary, suspend or revive registered
parenting plans
(1A) This section
applies to a registered parenting plan.
(1) The court in which the plan was
registered may set aside the plan, and its registration, if the court is
satisfied:
(a) that the concurrence of a party
was obtained by fraud, duress or undue influence; or
(b) that the parties want the plan set
aside; or
(c) that it is in the best interests
of a child to set aside the plan.
(2) In proceedings under subsection (1),
to the extent that they are proceedings on the ground mentioned in paragraph (1)(c),
the best interests of the child concerned are the paramount consideration.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
(3) Other provisions of this Act under which
provisions of the parenting plan may be set aside or otherwise affected are:
(a) subsection 63F(2)—under that
subsection a court may vary child welfare provisions in the plan; and
(b) subsection 65D(2)—under that
subsection a court may make a parenting order that discharges, varies, suspends
or revives provisions of the plan that have effect as if they were a parenting
order (other than a child maintenance order); and
(c) section 66S—under that
section a court may discharge, vary, suspend or revive provisions of the plan
that have effect as if they were a child maintenance order.
(4) Except as permitted by subsection (1)
or by a provision mentioned in subsection (3), a court must not set aside,
discharge, vary, suspend or revive the whole or a part of the parenting plan.
Division 5—Parenting orders—what they are
64A
What this Division does
This Division explains what parenting
orders are.
64B
Meaning of parenting order and related terms
(1) A parenting order is:
(a) an order under this Part
(including an order until further order) dealing with a matter mentioned in subsection (2);
or
(b) an order under this Part
discharging, varying, suspending or reviving an order, or part of an order,
described in paragraph (a).
(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.
(5) To the extent (if at all) that a
parenting order deals with the matter mentioned in paragraph (2)(f), the
order is a child maintenance order.
(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.
(9) In this
section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates
Rules.
64C
Parenting orders may be made in favour of parents or other persons
A parenting order in relation to a child
may be made in favour of a parent of the child or some other person.
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.
Division 6—Parenting orders other than child maintenance orders
Subdivision A—Introductory
65A What
this Division does
(1) This Division deals with:
(a) applying for and making parenting
orders, other than child maintenance orders (Subdivision B); and
(b) the general obligations created by
parenting orders, other than child maintenance orders (Subdivision C); and
(c) dealing with people who have been
arrested (Subdivision D); and
(d) the obligations under parenting
orders, other than child maintenance orders, relating to taking or sending
children from Australia (Subdivision E).
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.
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.
65B
Division does not apply to child maintenance orders
This Division does not apply to
parenting orders to the extent that they consist of child maintenance orders.
Child maintenance orders are dealt with in Division 7.
Subdivision B—Applying for and making parenting orders
65C
Who may apply for a parenting order
A parenting order in relation to a child
may be applied for by:
(a) either or both of the child’s parents;
or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with
the care, welfare or development of the child.
65D
Court’s power to make parenting order
(1) In proceedings for a parenting order, the
court may, subject to sections 61DA (presumption of equal shared parental
responsibility when making parenting orders) and 65DAB (parenting plans) and
this Division, make such parenting order as it thinks proper.
Note: Division 4 of Part XIIIAA
(International protection of children) may affect the jurisdiction of a court
to make a parenting order.
(2) Without limiting the generality of subsection (1)
and subject to section 61DA (presumption of equal shared parental
responsibility when making parenting orders) and 65DAB (parenting plans) and
this Division, a court may make a parenting order that discharges, varies,
suspends or revives some or all of an earlier parenting order.
(3) If the application for the parenting
order was made as a result of the adjournment under paragraph 70NEB(1)(c) of
proceedings under Subdivision E of Division 13A of Part VII:
(a) the court must hear and determine
the application as soon as practicable; and
(b) if the court makes a parenting
order on the application, the court may, if it thinks it is appropriate to do
so, dismiss the proceedings under that Subdivision.
Note: The applicant may apply to the Family Court or
to the Federal Magistrates Court for the application for the parenting order or
for the proceedings under Subdivision E of Division 13A of Part VII,
or both, to be transferred to the Federal Magistrates Court or to the Family
Court, as the case requires (see section 33B of this Act and section 39
of the Federal Magistrates Act 1999).
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.
65DA
Parenting orders
(1) This section applies when a court makes a
parenting order.
(2) It is the
duty of the court to include in the order particulars of:
(a) the obligations that the order
creates; and
(b) the consequences that may follow
if a person contravenes the order.
(3) If any of the persons to whom the order
is directed is not represented by a legal practitioner, it is also the duty of
the court to explain to the person, or to each of the persons:
(a) the availability of programs to help
people to understand their responsibilities under parenting orders; and
(b) the availability and use of
location and recovery orders to ensure that parenting orders are complied with.
(4) The court may cause to be prepared, and
given to persons to whom a parenting order is directed, a document setting out
particulars of the matters mentioned in paragraphs (3)(a) and (b).
(5) If a person to whom the order is directed
is represented by a legal practitioner, the court may request the practitioner:
(a) to assist in explaining to the
person the matters mentioned in paragraphs (2)(a) and (b); and
(b) to explain to the person the
matters mentioned in paragraphs (3)(a) and (b).
(6) If a request is made by the court to a
legal practitioner under paragraph (5)(a) or (b), it is the duty of the
practitioner to comply with the request.
(7) Failure to comply with a requirement of,
or with a request made under, this section does not affect the validity of a
parenting order.
(8) Any matter
that is required by this section to be included in a parenting order or any
explanation that is required by this section to be given to a person is to be
expressed in language that is likely to be readily understood by the person to
whom the order is directed or the explanation is given.
65F
General requirements for counselling before parenting order made
(2) Subject to subsection (3), a court
must not make a parenting order in relation to a child unless:
(a) the parties to the proceedings
have attended family counselling to discuss the matter to which the proceedings
relate; or
(b) the court is satisfied that there
is an urgent need for the parenting order, or there is some other special
circumstance (such as family violence), that makes it appropriate to make the
order even though the parties to the proceedings have not attended a conference
as mentioned in paragraph (a); or
(c) the court is satisfied that it is
not practicable to require the parties to the proceedings to attend a
conference as mentioned in paragraph (a).
(3) Subsection (2) does not apply to the
making of a parenting order if:
(a) it is made with the consent of all
the parties to the proceedings; or
(b) it is an order until further
order.
(4) In this section:
proceedings for a parenting order includes:
(a) proceedings for the enforcement of
a parenting order; and
(b) any other proceedings in which a
contravention of a parenting order is alleged.
65G
Special conditions for making parenting order about whom a child lives with or
the allocation of parental responsibility by consent in favour of non‑parent
(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.
(2) The court
must not make the proposed order unless:
(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
(b) the court is satisfied that there
are circumstances that make it appropriate to make the proposed order even
though the conditions in paragraph (a) are not satisfied.
65H
Children who are 18 or over or who have married or entered de facto
relationships
(1) A parenting order must not be made in
relation to a child who:
(a) is 18 or over; or
(b) is or has been married; or
(c) is in a de facto relationship.
(2) A parenting order in relation to a child
stops being in force if the child turns 18, marries or enters into a de facto
relationship.
(3) A court having jurisdiction under this
Part may make a declaration to the effect that the child is in, or has entered
into, a de facto relationship.
(4) A declaration under subsection (3)
has effect for the purposes of this Act but does not have effect for any other
purpose (including, for example, other laws of the Commonwealth or laws of the
States and Territories).
65J
Effect of adoption on parenting order
(1) This section applies if:
(a) a child is adopted; and
(b) immediately before the adoption, a
parenting order was in force in relation to the child.
(2) The parenting order stops being in force
on the adoption of the child, unless the adoption is by a prescribed adopting
parent and leave was not granted under section 60G for the adoption
proceedings to be commenced.
65K
What happens when parenting order that deals with whom a child lives with does
not make provision in relation to death of parent with whom child lives
(1) This section applies if:
(a) a parenting order is in force that
provides that a child is to live with one of the child’s parents; and
(b) that parent dies; and
(c) the parenting order does not
provide for what is to happen on that parent’s death.
(2) The surviving parent cannot require the
child to live with him or her.
(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.
(4) In an application under subsection (3)
by a person who does not, at the time of the application, have any parental
responsibility for the child, any person who, at that time, has any parental
responsibility for the child is entitled to be a party to the proceedings.
65L Family
consultants may be required to supervise or assist compliance with parenting
orders
(1) If a court makes a parenting order in
relation to a child, the court may also, subject to subsection (2), make
either or both of the following orders:
(a) an order requiring compliance with
the parenting order, as far as practicable, to be supervised by a family
consultant;
(b) an order requiring a family
consultant to 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.
(2) In deciding whether to make a particular
order under subsection (1) in relation to a child, a court must regard the
best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
65LA
Court may order attendance at a post‑separation parenting program
(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).
(2) In deciding whether to make a particular
order under subsection (1), a court must regard the best interests of the
child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
(3) In this section:
proceedings for a parenting order includes:
(a) proceedings for the enforcement of
a parenting order; and
(b) any other proceedings in which a
contravention of a parenting order is alleged.
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.
Subdivision C—General obligations created by certain parenting orders
65M
General obligations created by parenting order that deals with whom a child
lives 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 live with.
(2) A person must not, contrary to the order:
(a) remove the child from the care of
a person; or
(b) refuse or fail to deliver or
return the child to a person; or
(c) interfere with the exercise or
performance of any of the powers, duties or responsibilities that a person has
under the order.
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.
65Q
Court may issue warrant for arrest of alleged offender
(1) This section applies if:
(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
(c) there is an application before the
court for the alleged offender to be dealt with under Division 13A for the
alleged contravention; and
(d) the
court is satisfied that the issue of a warrant is necessary to ensure that the
alleged offender will attend before a court to be dealt with under Division 13A
for the alleged contravention.
(2) The court may issue a warrant authorising
a person to whom it is addressed to arrest the alleged offender.
(3) A warrant
stops being in force:
(a) if a date not later than 6 months
after the issue of the warrant is specified in the warrant as the date when it
stops being in force—on that date; or
(b) otherwise—6 months after the issue
of the warrant.
Subdivision D—Dealing with people who have been arrested
65R
Situation to which Subdivision applies
This Subdivision applies if a person:
(a) is arrested under a warrant issued
under subsection 65Q(2); or
(b) is arrested without warrant under
a recovery order.
65S
Arrested person to be brought before a court
(1) The
arresting person must:
(a) ensure that the alleged offender
is brought before a court having jurisdiction under this Part before the end of
the holding period applicable under subsection (4); and
(b) take all reasonable steps to
ensure that, before the alleged offender is brought before a court, the person
who applied for the warrant or recovery order is aware:
(i) that the alleged
offender has been arrested; and
(ii) of the court before
which the alleged offender is to be brought.
(2) The alleged offender must not be released
before the end of the holding period except under an order of a court having
jurisdiction under this Part.
(3) This section does not authorise the
holding in custody of the alleged offender after the end of the holding period.
(4) The holding period is:
(a) if a Saturday, Sunday or public
holiday starts within 24 hours after the arrest of the alleged offender—the
longer of the following periods:
(i) the period starting
with the arrest and ending 48 hours later;
(ii) the period starting
with the arrest and ending at the end of the next day after the day of the
arrest that is not a Saturday, Sunday or public holiday; or
(b) in any other case—the period
starting with the arrest and ending 24 hours later.
65T
Obligation of court—where application before it to deal with contravention
(1) This section applies if:
(a) the alleged offender is brought
before a court under section 65S; and
(b) there is an application before the
court for the alleged offender to be dealt with under Division 13A for the
alleged contravention.
(2) The court must, without delay, proceed to
hear and determine the application.
65U
Obligation of court—where no application before it, but application before
another court, to deal with contravention
(1) This section applies if:
(a) the alleged offender is brought
before a court under section 65S; and
(b) there is no application, or no
longer any application, before the court for the alleged offender to be dealt
with under Division 13A for the alleged contravention; and
(c) the court is aware that there is
an application before another court for the alleged offender to be dealt with
under Division 13A for the alleged contravention.
(2) The court must, without delay:
(a) order that the alleged offender is
to be released from custody on his or her entering into a recognizance (with or
without surety or security) that he or she will attend before the other court
on a date, at a time and at a place specified by the court; or
(b) order the arresting person to
arrange for the alleged offender to be brought before the other court on such
date and at such time as the court specifies, being a date and time such that
the alleged offender is to be brought before the other court as soon as
practicable, and in any event not more than 72 hours, after the order is made.
(3) If a court makes an order under paragraph (2)(b)
for the alleged offender to be brought before another court:
(a) subject to paragraph (c), the
alleged offender may be kept in custody until he or she is brought before the
other court; and
(b) if the alleged offender is brought
before the other court as required by the order, the other court must, without
delay, proceed to hear and determine the application mentioned in paragraph (1)(c);
and
(c) if the alleged offender is not
brought before the other court as required by the order, he or she must be
released without delay.
65V
Obligation of court—where no application before any court to deal with
contravention
(1) This section applies if:
(a) the alleged offender is brought
before a court under section 65S; and
(b) there is no application, or no
longer any application, before the court for the alleged offender to be dealt
with under Division 13A for the alleged contravention; and
(c) so far as the court is aware,
there is no application, or no longer any application, before any other court
for the alleged offender to be dealt with under Division 13A for the
alleged contravention.
(2) The court must, without delay, order the
release of the alleged offender.
65W
Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b)
(1) If a court hearing an application as
required by subsection 65T(2) or paragraph 65U(3)(b) adjourns the hearing, the
court must:
(a) order the alleged offender to be
kept in such custody as the court considers appropriate during the adjournment;
or
(b) order that the alleged offender is
to be released from custody, either on his or her entering into a recognizance
(with or without surety or security) that he or she will attend before the
court on the resumption of the hearing or otherwise.
(2) This
section does not authorise the holding in custody of the alleged offender
during an adjournment of proceedings that:
(a) is expressed to be for a period of
more than 24 hours; or
(b) continues for more than 24 hours.
Subdivision E—Obligations under parenting orders relating to taking or
sending children from Australia
65X
Interpretation
(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.
(2) For the purposes of this Subdivision, if
an appeal against a decision of a court in proceedings has been instituted and
is pending, the proceedings are taken to be pending and sections 65Z and
65ZB (rather than sections 65Y and 65ZA) apply.
65Y
Obligations if certain parenting orders have been made
(1) If a parenting order to which this
Subdivision applies is in force, a person who was a party to the proceedings in
which the order was made, or a person who is acting on behalf of, or at the
request of, a party, must not take or send the child concerned from Australia
to a place outside Australia except as permitted by subsection (2).
Penalty: Imprisonment for 3 years.
Note: The ancillary offence provisions of the Criminal
Code, including section 11.1 (attempts), apply in relation to the
offence created by subsection (1).
(2) Subsection (1)
does not prohibit taking or sending the child from Australia to a place outside
Australia if:
(a) it is done with the consent in
writing (authenticated as prescribed) of each person in whose favour the order
referred to in subsection (1) was made; or
(b) it is done in accordance with an
order of a court made, under this Part or under a law of a State or Territory,
at the time of, or after, the making of the order referred to in
subsection (1).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
65Z
Obligations if proceedings for the making of certain parenting orders are
pending
(1) If
proceedings (the Part VII proceedings) for the making of a
parenting order to which this Subdivision applies are pending, a person who is
a party to the proceedings, or who is acting on behalf of, or at the request
of, a party, must not take or send the child concerned from Australia to a
place outside Australia except as mentioned in subsection (2).
Penalty: Imprisonment for 3 years.
Note: The ancillary offence provisions of the Criminal
Code, including section 11.1 (attempts), apply in relation to the
offence created by subsection (1).
(2) Subsection (1) does not prohibit
taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in
writing (authenticated as prescribed) of each other party to the Part VII
proceedings; or
(b) it is done in accordance with an
order of a court made, under this Part or under a law of a State or Territory,
after the institution of the Part VII proceedings.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
65ZA
Obligations of owners etc. of aircraft and vessels if certain parenting orders
made
(1) This section applies if:
(a) a parenting order to which this
Subdivision applies is in force; and
(b) a person in whose favour the order
was made has served on the captain, owner or charterer of an aircraft or vessel
a statutory declaration made by the person not earlier than 7 days before the
date of service that:
(i) relates to the order;
and
(ii) complies with subsection (4).
(2) The person on whom the declaration is
served must not permit the child identified in the declaration to leave a port
or place in Australia in the aircraft or vessel for a destination outside
Australia except as permitted by subsection (3).
Penalty: 60 penalty units.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (2) does not prohibit
permitting the child to leave Australia in the aircraft or vessel if:
(a) the child leaves in the company,
or with the consent in writing (authenticated as prescribed), of the person who
made the statutory declaration; or
(b) the child leaves in accordance
with an order of a court made, under this Part or under a law of a State or
Territory, at the time of, or after, the making of the order.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) The
statutory declaration must contain:
(a) full particulars of the order,
including:
(i) the full name and the
date of birth of the child to whom the order relates; and
(ii) the full names of the
parties to the proceedings in which the order was made; and
(iii) the terms of the
order; and
(b) such other matters (if any) as are
prescribed.
65ZB
Obligations of owners etc. of aircraft and vessels if proceedings for the
making of certain parenting orders are pending
(1) This section applies if:
(a) proceedings (the Part VII
proceedings) for the making of a parenting order to which this
Subdivision applies are pending; and
(b) a party to the proceedings has
served on the captain, owner or charterer of a vessel a statutory declaration
made by the party not earlier than 7 days before the date of service that:
(i) relates to the
proceedings; and
(ii) complies with subsection (4).
(2) The person on whom the declaration is
served must not permit the child identified in the declaration to leave a port
or place in Australia in the aircraft or vessel for a destination outside
Australia except as permitted by subsection (3).
Penalty: 60 penalty units.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (2) does not prohibit
permitting the child to leave Australia in the aircraft or vessel if:
(a) the child leaves in the company,
or with the consent in writing (authenticated as prescribed), of the party who
made the statutory declaration; or
(b) in accordance with an order of a court
made, under this Part or under a law of a State or Territory, after the
institution of the Part VII proceedings.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) The
statutory declaration must contain:
(a) full particulars of the Part VII
proceedings, including:
(i) the full name and the
date of birth of the child to whom the proceedings relate; and
(ii) the full names of the
parties to the proceedings; and
(iii) the name of the court,
the nature of the proceedings and the date of institution of the proceedings;
and
(iv) if an appeal has been
instituted in the proceedings—the name of the court in which the appeal was
instituted and the date on which it was instituted; and
(b) a statement that the Part VII
proceedings are pending at the date of the declaration; and
(c) such other matters (if any) as are
prescribed.
65ZC
General provisions applicable to sections 65ZA and 65ZB
(1) A declaration under section 65ZA or
65ZB may be served on the owner or charterer of an aircraft or vessel, or on
the agent of the owner of an aircraft or vessel, by sending the declaration by
registered post addressed to the owner, charterer or agent at the principal
place of business of the owner, charterer or agent.
(2) The
captain, owner or charterer of an aircraft or vessel, or the agent of the owner
of an aircraft or vessel, is not liable in any civil or criminal proceedings in
respect of anything done in good faith for the purpose of complying with
section 65ZA or 65ZB.
(3) If an act or omission by a person that
constitutes an offence against subsection 65ZA(2) or 65ZB(2) is also an offence
against any other law, the person may be prosecuted and convicted under that
other law, but nothing in this subsection makes a person liable to be punished
twice in respect of the same act or omission.
65ZD
State or Territory laws stopping children leaving Australia not affected
Nothing in this Subdivision prevents or
restricts the operation of any law of a State or Territory under which:
(a) action may be taken to prevent a
child from leaving Australia or being taken or sent outside Australia; or
(b) a person may be punished in
respect of the taking or sending of a child outside Australia.
Division 7—Child maintenance orders
Subdivision A—What this Division does
66A
What this Division does
This Division:
(a) contains statements of objects and
principles relevant to the making of child maintenance orders (Subdivision B);
and
(b) deals with the relationship
between this Division and the Child Support (Assessment) Act 1989 (Subdivision
C); and
(c) deals with applying for and making
child maintenance orders (Subdivision D); and
(d) deals with other aspects of
courts’ powers in relation to child maintenance orders (Subdivision E); and
(da) deals with varying the maintenance
of certain children (Subdivision EA); and
(e) deals with when child maintenance
orders stop being in force (Subdivision F).
Subdivision B—Objects and principles
66B
Objects
(1) The principal object of this Division is
to ensure that children receive a proper level of financial support from their
parents.
(2) Particular objects of this Division
include ensuring:
(a) that children have their proper
needs met from reasonable and adequate shares in the income, earning capacity,
property and financial resources of both of their parents; and
(b) that parents share equitably in
the support of their children.
66C
Principles—parents have primary duty to maintain
(1) The parents of a child have, subject to
this Division, the primary duty to maintain the child.
(2) Without
limiting the generality of subsection (1), the duty of a parent to
maintain a child:
(a) is not of lower priority than the
duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments
of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or
another person that the parent has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other
person to maintain the child; or
(ii) any entitlement of the
child or another person to an income tested pension, allowance or benefit.
66D
Principles—when step‑parents have a duty to maintain
(1) The step‑parent of a child has,
subject to this Division, the duty of maintaining a child if, and only if, a
court, by order under section 66M, determines that it is proper for the
step‑parent to have that duty.
(2) Any duty of a step‑parent to
maintain a step‑child:
(a) is a secondary duty subject to the
primary duty of the parents of the child to maintain the child; and
(b) does not derogate from the primary
duty of the parents to maintain the child.
Subdivision C—Relationship with Child Support (Assessment) Act
66E
Child maintenance order not to be made etc. if application for administrative
assessment of child support could be made
(1) A court having jurisdiction under this
Part must not, at any time, make, revive or vary a child maintenance order in
relation to a child on the application of a person (the applicant)
against, or in favour of, a person (the respondent) if an
application could properly be made, at that time, by the applicant under the Child
Support (Assessment) Act 1989 for the respondent to be assessed in respect
of the costs of the child, or vice versa.
(2) Subsection (1) has effect whether or
not an application for administrative assessment of child support for the child
has in fact been made (whether by the applicant, the respondent or another
person).
(3) This section does not apply to
proceedings under regulations made for the purposes of section 110 or
111A.
Subdivision D—Applying for and making child maintenance orders
66F
Who may apply for a child maintenance order
(1) Unless subsection (2) applies, a
child maintenance order in relation to a child may be applied for by:
(a) either or both of the child’s
parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the
care, welfare or development of the child.
(2) A child maintenance order in relation to
a child who is under the guardianship, or in the care (however described), of a
person under a child welfare law may only be applied for by:
(a) the child; or
(b) a parent of the child who has the
daily care of the child; or
(c) a relative of the child who has
the daily care of the child; or
(d) a child welfare officer of the
relevant State or Territory.
66G
Court’s power to make child maintenance order
In proceedings for a child maintenance
order, the court may, subject to this Division and to section 111AA, make
such child maintenance order as it thinks proper.
66H
Approach to be taken in proceedings for child maintenance order
In proceedings for the making of a child
maintenance order in relation to a child, the court must:
(a) consider the financial support
necessary for the maintenance of the child (this is expanded on in section 66J);
and
(b) determine the financial
contribution, or respective financial contributions, towards the financial
support necessary for the maintenance of the child, that should be made by a
party, or by parties, to the proceedings (this is expanded on in section 66K).
66J
Matters to be taken into account in considering financial support necessary for
maintenance of child
(1) In considering the financial support
necessary for the maintenance of a child, the court must take into account
these (and no other) matters:
(a) the matters mentioned in section 66B;
and
(b) the proper needs of the child
(this is expanded on in subsection (2)); and
(c) the income, earning capacity,
property and financial resources of the child (this is expanded on in subsection (3)).
(2) In taking into account the proper needs
of the child the court:
(a) must have regard to:
(i) the age of the child;
and
(ii) the manner in which
the child is being, and in which the parents expected the child to be, educated
or trained; and
(iii) any special needs of
the child; and
(b) may have regard, to the extent to
which the court considers appropriate in the circumstances of the case, to any
relevant findings of published research in relation to the maintenance of
children.
(3) In taking into account the income,
earning capacity, property and financial resources of the child, the court
must:
(a) have regard to the capacity of the
child to earn or derive income, including any assets of, under the control of
or held for the benefit of the child that do not produce, but are capable of
producing, income; and
(b) disregard:
(i) the income, earning
capacity, property and financial resources of any other person unless, in the
special circumstances of the case, the court considers it appropriate to have
regard to them; and
(ii) any entitlement of the
child or any other person to an income tested pension, allowance or benefit.
(4) Subsections (2) and (3) do not
limit, by implication, the matters to which the court may have regard in taking
into account the matters referred to in subsection (1).
66K
Matters to be taken into account in determining contribution that should be
made by party etc.
(1) In determining the financial
contribution, or respective financial contributions, towards the financial
support necessary for the maintenance of a child that should be made by a
party, or by parties, to the proceedings, the court must take into account
these (and no other) matters:
(a) the matters mentioned in sections 66B,
66C and 66D; and
(b) the income, earning capacity,
property and financial resources of the party or each of those parties (this is
expanded on in subsection (2)); and
(c) the commitments of the party, or
each of those parties, that are necessary to enable the party to support:
(i) himself or herself; or
(ii) any other child or
another person that the person has a duty to maintain; and
(d) the direct and indirect costs
incurred by the parent or other person with whom the child lives in providing
care for the child (this is expanded on in subsection (3)); and
(e) any special circumstances which,
if not taken into account in the particular case, would result in injustice or
undue hardship to any person.
(2) In taking into account the income,
earning capacity, property and financial resources of a party to the
proceedings, the court must have regard to the capacity of the party to earn
and derive income, including any assets of, under the control of or held for
the benefit of the party that do not produce, but are capable of producing,
income.
(3) In taking into account the direct and
indirect costs incurred by the parent or other person with whom the child lives
in providing care for the child, the court must have regard to the income and
earning capacity forgone by the parent or other person in providing that care.
(4) In determining the financial contribution,
or respective financial contributions, that should be made by a party, or by
parties, to the proceedings, the court must disregard:
(a) any entitlement of the child, or
the person with whom the child lives, to an income tested pension, allowance or
benefit; and
(b) the
income, earning capacity, property and financial resources of any person who
does not have a duty to maintain the child, or has such a duty but is not a
party to the proceedings, unless, in the special circumstances of the case, the
court considers it appropriate to have regard to them.
(5) In determining the financial
contribution, or respective financial contributions, that should be made by a
party, or by parties, to the proceedings, the court must consider the capacity
of the party, or each of those parties, to provide maintenance by way of
periodic payments before considering the capacity of the party, or each of
those parties, to provide maintenance:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement
of property; or
(c) in any other way.
(6) Subsections (2) to (5) do not limit,
by implication, the matters to which the court may have regard in taking into
account the matters referred to in subsection (1).
66L
Children who are 18 or over
(1) A court must not make a child maintenance
order in relation to a child who is 18 or over unless the court is satisfied
that the provision of the maintenance is necessary:
(a) to enable the child to complete
his or her education; or
(b) because of a mental or physical
disability of the child.
The court may make such a child maintenance order, in
relation to a child who is 17, to take effect when or after the child turns 18.
(2) A court must not make a child maintenance
order in relation to a child that extends beyond the day on which the child
will turn 18 unless the court is satisfied that the provision of the
maintenance beyond that day is necessary:
(a) to enable the child to complete
his or her education; or
(b) because of a mental or physical
disability of the child.
(3) A child maintenance order in relation to
a child stops being in force when the child turns 18 unless the order is
expressed to continue in force after then.
66M
When step‑parents have a duty to maintain
(1) As stated in section 66D, a step‑parent
of a child has a duty of maintaining a child if, and only if, there is an order
in force under this section.
(2) A court having jurisdiction under this
Part may, by order, determine that it is proper for a step‑parent to have
a duty of maintaining a step‑child.
(3) In making an order under subsection (2),
the court must have regard to these (and no other) matters:
(a) the matters referred to in
sections 60F, 66B and 66C; and
(b) the length and circumstances of
the marriage to, or relationship with, the relevant parent of the child; and
(c) the relationship that has existed
between the step‑parent and the child; and
(d) the arrangements that have existed
for the maintenance of the child; and
(e) any special circumstances which,
if not taken into account in the particular case, would result in injustice or
undue hardship to any person.
66N
Determining financial contribution of step‑parent
In
determining the financial contribution towards the financial support necessary
for the maintenance of the child that should be made by a party to the
proceedings who is a step‑parent of the child, the court must take into
account:
(a) the matters referred to in
sections 60F, 66B, 66C, 66D and 66K; and
(b) the extent to which the primary
duty of the parents to maintain the child is being, and can be fulfilled.
Subdivision E—Other aspects of courts’ powers
66P
General powers of court
(1) In proceedings for a child maintenance
order, a court may do all or any of the following:
(a) order payment of a lump sum, whether
in one amount or by instalments;
(b) order payment of a weekly,
monthly, yearly or other periodic amount;
(c) order that a specified transfer or
settlement of property be made by way of maintenance for a child;
(d) order that payment of an amount
ordered to be paid be wholly or partly secured as the court specifies;
(e) order that any necessary
instrument be executed, and that such documents of title be produced and such
other things be done, as are necessary to enable an order to be carried out
effectively or to provide security for the due performance of an order;
(f) order that payment be made to a
specified person or public authority or into court;
(g) make a permanent order, an order
pending the disposal of proceedings, an order for a fixed period, an order
until a child attains a specified age or an order until further order;
(h) make an order imposing terms and
conditions;
(i) make an order by consent;
(j) make any other order (whether or
not of the same nature as those referred to in paragraphs (a) to (i)) that
it considers appropriate;
(k) make an order under this Division
at any time.
(2) The making of an order of a kind referred
to in paragraph (1)(c), or of any other order under this Division, in
relation to the maintenance of a child does not prevent a court from making a
subsequent order in relation to the maintenance of the child.
(3) The
applicable Rules of Court may make provision with respect to the making of
orders under this Division (whether as to their form or otherwise) for the
purpose of facilitating their enforcement and the collection of maintenance
payable under them.
66Q
Urgent child maintenance orders
If, in proceedings for a child
maintenance order in relation to a child:
(a) the court considers that the child
is in immediate need of financial assistance; but
(b) it
is not practicable in the circumstances to determine immediately what order (if
any) should be made;
the court may order the payment, pending the disposal of
the proceedings, of such periodic or other amount as the court considers
appropriate.
66R
Specification in orders of payments etc. for child maintenance purposes
(1) If:
(a) a court makes an order under this
Act (whether or not the order is made in proceedings in relation to the
maintenance of a child, is made by consent or varies an earlier order) that has
the effect of requiring:
(i) payment of a lump sum,
whether in one amount or by instalments; or
(ii) the transfer or
settlement of property; and
(b) the
purpose, or one of the purposes, of the payment, transfer or settlement is to
make provision for the maintenance of a child or children;
the court must:
(c) express the order to be an order
to which this section applies; and
(d) specify:
(i) the child or children
for whose maintenance provision is made by the payment, transfer or settlement;
and
(ii) the
portion of the payment, or the value of the portion of the property,
attributable to the provision of maintenance for the child or each child, as
the case may be.
(2) If:
(a) a court makes an order of a kind
referred to in paragraph (1)(a); and
(b) the order:
(i) is not expressed to be
an order to which this section applies; or
(ii) is expressed to be an
order to which this section applies, but does not comply with paragraph (1)(d);
any payment, transfer or settlement of a kind referred to
in paragraph (1)(a), that the order has the effect of requiring, is to be
taken not to make provision for the maintenance of a child.
66S
Modification of child maintenance orders
(1) This section applies if:
(a) there is in force an order (the first
order), for the maintenance of a child (whether or not made under this
Act and whether made before or after the commencement of this section):
(i) made by a court; or
(ii) registered in a court;
and
(b) a person (being someone who could
apply for a child maintenance order in relation to the child) or persons (each
of whom could do that) apply to the court for an order under this section in
relation to the first order.
(1A) With the consent of all the parties to the
first order, the court may, subject to section 111AA, make an order:
(a) discharging the first order; or
(b) suspending its operation wholly or
in part and either until further order or until a fixed time or the happening
of a future event; or
(c) if the operation of the order has
been suspended under paragraph (b) or (2)(b)—reviving its operation wholly
or in part; or
(d) varying
the order:
(i) so as to increase or
decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(1B) However, the court must not make an order
under subsection (1A) that allows any entitlement of a child or another
person to an income tested pension, allowance or benefit, to affect the duty of
that child’s parents to maintain the child.
Note: For the duty of a parent to maintain a child,
see section 66C.
(2) In any other case, the court may, by
order:
(a) discharge the first order if there
is just cause for so doing; or
(b) suspend its operation wholly or in
part and either until further order or until a fixed time or the happening of a
future event; or
(c) if the operation of the order has
been suspended under paragraph (b) or (1A)(b), revive its operation wholly
or in part; or
(d) subject to subsection (3),
vary the order:
(i) so as to increase or
decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(3) The court must not vary the order so as
to increase or decrease any amount ordered to be paid by the order unless it is
satisfied:
(a) that, since the order was made or
last varied:
(i) the circumstances of
the child have changed so as to justify the variation; or
(ii) the circumstances of
the person liable to make payments under the order have changed so as to
justify the variation; or
(iii) the circumstances of
the person entitled to receive payments under the order have changed so as to
justify the variation; or
(iv) in the case of an order
that operates in favour of, or is binding on, a legal personal
representative—the circumstances of the estate are such as to justify the
variation; or
(b) that, since the order was made or
last varied, the cost of living has changed to such an extent as to justify its
so doing (this is expanded on in subsections (4) and (5)); or
(c) if the order was made by consent—that
the amount ordered to be paid is not proper or adequate (this is expanded on in
subsection (6)); or
(d) that material facts were withheld
from the court that made the order or from a court that varied the order, or
material evidence previously given before such a court was false.
(4) In satisfying itself for the purposes of paragraph (3)(b),
the court must have regard to any changes that have occurred in the Consumer
Price Index published by the Australian Statistician.
(5) The court must not, in considering the
variation of an order, have regard to a change in the cost of living unless at
least 12 months have elapsed since the order was made or last varied having
regard to a change in the cost of living.
(6) In satisfying itself for the purposes of paragraph (3)(c),
the court must have regard to any payments, and any transfer or settlement of
property, previously made to the child, or to any other person for the benefit
of the child, by the person against whom the order was made.
(7) An order decreasing a periodic amount
payable under the order, or discharging the order, may be expressed to be
retrospective to such day as the court considers appropriate.
(8) If an order (the subsequent order)
decreasing a periodic amount payable under the first order is expressed to be
retrospective, amounts paid under the first order that are not payable under
the first order as varied by the subsequent order may be recovered in a court
having jurisdiction under this Part.
(9) If an
order discharging the first order is expressed to be retrospective to a
specified day, amounts paid under the first order since the specified day may
be recovered in a court having jurisdiction under this Part.
(10) For the purposes of this section, the
court must have regard to the provisions of Subdivisions B, C and D (to the
extent applicable).
(11) The discharge of the first order does not
affect the recovery of arrears due under the order when the discharge takes
effect.
Subdivision EA—Varying the maintenance of certain children
66SA
Varying the maintenance of certain children
(1) This section applies to persons who:
(a) are parties to an agreement (the original
agreement) dealing with the maintenance of a child; or
(b) are entitled to receive, or
required to pay, maintenance in respect of a child under a court order;
and cannot properly make an application under the Child
Support (Assessment) Act 1989 for the other person to be assessed in
respect of the costs of the child.
(2) The persons may, by registering a written
agreement in a court having jurisdiction under this Part, vary or revoke the
original agreement or order to the extent that it deals with maintenance of the
child.
(3) However,
the registered agreement is of no effect to the extent that it allows any
entitlement of a child or another person to an income tested pension, allowance
or benefit to affect the duty of that child’s parents to maintain the child.
Note: For the duty of a parent to maintain a child,
see section 66C.
(4) If the original agreement or order is
varied under subsection (2), it:
(a) continues to operate despite the
death of a party to the agreement or of a person entitled to receive, or
required to pay, maintenance under the order; and
(b) operates in favour of, and is
binding on, the legal representative of that party or person;
unless the agreement or order provides otherwise.
(5) However, despite anything in the
agreement or order, it does not continue to operate, to the extent that it
requires the periodic payment of maintenance, after the death of the person
entitled to receive those payments.
(6) This section applies despite anything in
Division 4.
Subdivision F—When child maintenance orders stop being in force
66T
Effect of child turning 18
As stated in subsection 66L(3), a child
maintenance order in relation to a child stops being in force when the child
turns 18, unless the order is expressed to continue in force after then.
66U
Effect of death of child, person liable to pay or person entitled to receive
(1) A child maintenance order in relation to
a child stops being in force on the death of the child.
(2) A child maintenance order in relation to
a child stops being in force on the death of the person liable to make payments
under the order.
(3) Subsection (2) does not apply to an
order made before the commencement of section 38 of the Family Law
Amendment Act 1983 if the order was expressed to continue in force
throughout the life of the person for whose benefit the order was made or for a
period that had not expired at the death of the person liable to make payments
under the order and, in that case, the order is binding on the legal personal
representative of the deceased person.
(4) A child maintenance order in relation to
a child stops being in force on the death of the person entitled to receive
payments under the order.
(5) Subsection (4) does not apply to an
order if:
(a) the order is expressed to continue
in force after the death of the person first entitled to receive payments under
the order; and
(b) the order specifies the person who
is to receive the payments after that death.
66V
Effect of adoption, marriage or entering into a de facto relationship
(1) A child maintenance order in relation to
a child stops being in force if the child is adopted, marries or enters into a
de facto relationship.
(2) If a child to whom a child maintenance
order applies dies, is adopted, marries or enters into a de facto relationship,
the person entitled to receive payments under the order must, without delay,
inform the person liable to make payments under the order.
(3) Any amounts paid under a child
maintenance order in relation to a period after the child dies, is adopted,
marries or enters into a de facto relationship may be recovered in a court
having jurisdiction under this Part.
(4) A court having jurisdiction under this
Part may make a declaration to the effect that a child is in, or has entered
into, a de facto relationship.
(5) A declaration under subsection (4)
has effect for the purposes of this Act but does not have effect for any other
purpose (including, for example, other laws of the Commonwealth or laws of the
States and Territories).
66VA
Children who are 18 or over: change of circumstances
(1) A child maintenance order made under
section 66L:
(a) to enable the child to complete
his or her education; or
(b) because of a mental or physical
disability of the child;
stops being in force if the child ceases that education or
ceases to have that disability.
(2) The person to whom the maintenance is
payable must, as soon as practicable, inform the person required to pay it of
that change in circumstances.
(3) Any amounts of maintenance paid under the
child maintenance order after it stops being in force may be recovered in a
court having jurisdiction under this Part.
66W
Recovery of arrears
(1) Nothing in subsection 66L(3), or in this
Subdivision (apart from subsection (2) of this section), affects the
recovery of arrears due under a child maintenance order in relation to a child
when the order ceases to be in force.
(2) If arrears are due under such an order
when the order ceases to be in force, the court may, by order, retrospectively:
(a) discharge the order if there is
just cause for doing so; or
(b) vary the order so as to increase
or decrease the arrears to be paid under the order if the court is satisfied
that:
(i) the circumstances of
the person liable to pay the arrears are such as to justify the variation; or
(ii) the circumstances of
the person entitled to receive the arrears are such as to justify the
variation; or
(iii) in the case of an
order that operated in favour of, or that was binding on, a legal personal
representative—the circumstances of the estate are such as to justify the
variation.
Subdivision G—Recovery of amounts paid under maintenance orders
66X
Recovery of amounts paid, and property transferred or settled, under
maintenance orders
(1) This section applies if:
(a) a court has at any time purported
to make an order (the purported order) of a kind referred to in
paragraph 66P(1)(a), (b) or (c) requiring a person (the maintenance
provider) to pay an amount, or to transfer or settle property, by way
of maintenance for a child; and
(b) the maintenance provider has:
(i) paid another person an
amount or amounts; or
(ii) transferred or settled
property;
in compliance, or partial
compliance, with the purported order; and
(c) a court has determined that the
maintenance provider is not a parent or step‑parent of the child.
(2) If the maintenance provider applies to a
court having jurisdiction under this Part for an order under this subsection,
the court must make such order as it considers just and equitable in the
circumstances, for:
(a) if the purported order was of a
kind referred to in paragraph 66P(1)(a) or (b)—the repayment to the maintenance
provider, by the person to whom the amount or amounts referred to in subparagraph (1)(b)(i)
of this section were paid, of an amount up to, or equal to, that amount or the
sum of those amounts; or
(b) if the purported order was of the
kind referred to in paragraph 66P(1)(c)—the return to the maintenance provider
of:
(i) the property referred
to in subparagraph (1)(b)(ii) of this section; or
(ii) an amount up to, or
equal to, the value of that property.
The court may only order the repayment of an amount that
is less than the amount, or the sum of the amounts, referred to in subparagraph (1)(b)(i)
of this section, or the return of an amount that is less than the value of the
property referred to in subparagraph (1)(b)(ii) of this section, in exceptional
circumstances.
(3) If the purported order was of the kind
referred to in paragraph 66P(1)(c) and the court that made the order did so:
(a) in part by way of providing
maintenance for the child; and
(b) in part for some other purpose;
the reference in paragraph (2)(b) to the property, or
the value of the property, referred to in subparagraph (1)(b)(ii) is taken
to be a reference to that property, or the value of that property, only to the
extent to which that property was transferred or settled by way of providing
maintenance for the child.
(4) Without limiting paragraph (2)(b),
the orders that the court may make under that paragraph include the following:
(a) an order that a specified payment
be made;
(b) an order that a specified transfer
or settlement of property be made;
(c) an order that any necessary
instrument be executed, and that such documents of title be produced and such
other things be done, as are necessary to enable an order to be carried out
effectively or to provide security for the due performance of an order.
(5) An amount paid to the Commonwealth under
section 30 of the Child Support (Registration and Collection) Act 1988
is to be taken, for the purposes of this section, to have been paid to the
person to whom, apart from that section, the amount would have been payable.
Division 8—Other matters relating to children
Subdivision A—What this Division does
67A
What this Division does
This Division deals with:
(a) the liability of a father to
contribute towards child bearing expenses if he is not married to the child’s
mother (Subdivision B); and
(b) orders for the location and
recovery of children (Subdivision C); and
(c) the reporting of allegations of
child abuse (Subdivision D); and
(d) other orders about children (Subdivision
E).
Subdivision B—Father’s liability to contribute towards child bearing
expenses if not married to mother
67B
Father liable to contribute towards maintenance and expenses of mother
The father of a child who is not married
to the child’s mother is, subject to this Division, liable to make a proper
contribution towards:
(a) the maintenance of the mother for
the childbirth maintenance period in relation to the birth of the child; and
(b) the mother’s reasonable medical
expenses in relation to the pregnancy and birth; and
(c) if the mother dies and the death
is as a result of the pregnancy or birth, the reasonable expenses of the
mother’s funeral; and
(d) if the child is stillborn, or dies
and the death is related to the birth, the reasonable expenses of the child’s
funeral.
67C
Matters to be taken into account in proceedings under Subdivision
(1) In
proceedings under this Subdivision in relation to the birth of a child, the
court must, in determining the contribution that should be made by the father
of the child, take into account the following matters only:
(a) the income, earning capacity,
property and financial resources of the mother and the father of the child;
(b) commitments of each of those
persons that are necessary to enable the person to support:
(i) himself or herself; or
(ii) any other child or
another person that the person has a duty to maintain;
(c) any special circumstances which,
if not taken into account in the particular case, would result in injustice or
undue hardship to any person.
(2) In taking into account the income,
earning capacity, property and financial resources of a person, the court must
have regard to the capacity of the person to earn and derive income, including
any assets of, under the control of or held for the benefit of the person that
do not produce, but are capable of producing, income.
(3) In taking into account the income,
earning capacity, property and financial resources of the mother, the court
must disregard any entitlement of the mother to an income tested pension,
allowance or benefit.
(4) Subsections (2) and (3) do not limit
the matters to which the court may have regard in taking into account matters
referred to in subsection (1).
67D
Powers of court in proceedings under Subdivision
(1) In proceedings under this Subdivision in
relation to the birth of a child, the court may make such order as it thinks
proper.
(2) In
exercising its powers under this Subdivision, a court may do all or any of the
following:
(a) order payment of a lump sum,
whether in one amount or by instalments;
(b) order payment of a weekly, monthly
or other periodic amount;
(c) order that payment of an amount
ordered to be paid be wholly or partly secured as the court specifies;
(d) order that any necessary instrument
be executed, and that such documents of title be produced and such other things
be done, as are necessary to enable an order to be carried out effectively or
to provide security for the due performance of an order;
(e) order that payment be made to a
specified person or public authority or into court;
(f) make a permanent order, an order
pending the disposal of proceedings, an order for a fixed period or an order
until further order;
(g) make an order imposing terms and
conditions;
(h) make an order by consent;
(i) make any other order (whether or
not of the same nature as those referred to in paragraphs (a) to (h)) that
it considers appropriate;
(j) make an order under this
Subdivision at any time (whether before or after the birth of the relevant
child).
(3) The applicable Rules of Court may make
provision with respect to the making of orders under this Subdivision (whether
as to their form or otherwise) for the purpose of facilitating their
enforcement and the collection of amounts payable under them.
67E
Urgent orders
If, in proceedings under this
Subdivision in relation to the birth of a child:
(a) the court is of the opinion that
the applicant is in immediate need of financial assistance; but
(b) it
is not practicable in the circumstances to determine immediately what order (if
any) should be made (whether because the applicant has not yet given birth to
the child or otherwise);
the court may order the payment, pending the disposal of
the proceedings, of such periodic or other amount as the court considers
appropriate.
67F
Who may institute proceedings
Proceedings under this Subdivision in
relation to the birth of a child may be instituted by the mother or by the
mother’s legal personal representative.
67G
Time limit for institution of proceedings
(1) Proceedings under this Subdivision in
relation to the birth of a child may be instituted:
(a) at any time during the pregnancy
of the mother; or
(b) after the birth of the child, but
not later than 12 months after the birth except by leave of the court.
(2) The court must not grant leave under paragraph (1)(b)
unless it is satisfied that refusal to grant leave would cause hardship to the
applicant, the child or another person.
Subdivision C—Location and recovery of children
67J
Meaning of location order and Commonwealth information order
(1) A location
order is an order made by a court requiring:
(a) a person to provide the Registry
Manager of the court with information that the person has or obtains about the
child’s location; or
(b) the Secretary of a Department, or
an appropriate authority of a Commonwealth instrumentality, to provide the
Registry Manager of the court with information about the child’s location that
is contained in or comes into the records of the Department or instrumentality.
(2) A Commonwealth information order
is a location order described in paragraph (1)(b).
67K
Who may apply for a location order
(1) A location order in relation to a child
may be applied for by:
(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
(ca) a grandparent of the child; or
(d) any other person concerned with
the care, welfare or development of the child.
(2) For the purposes of the Child Protection
Convention, a person (including the Commonwealth central authority) may apply
to a court for a location order.
(3) In subsection (2):
Child Protection Convention has the same
meaning as in section 111CA.
Commonwealth central authority has the same
meaning as in section 111CA.
67L
Child’s best interests paramount consideration in making a location order
In deciding whether to make a location
order in relation to a child, a court must regard the best interests of the
child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
67M
Provisions about location orders, other than Commonwealth information orders
(1) This section applies to location orders
other than Commonwealth information orders.
(2) Subject to section 67L, a court
having jurisdiction under this Part or section 111CX, or exercising
jurisdiction in proceedings arising under regulations made for the purposes of
Part XIIIAA, may make a location order if it is satisfied that the person
to whom the order applies is likely to have information about the child’s
location.
(3) If the person to whom a location order
applies holds an office or position in, or in relation to, a Department or a
Commonwealth instrumentality, the order does not apply to information that the
person has or obtains because of holding that office or position.
(4) A location order stays in force for 12
months or such longer period as the court considers appropriate.
(5) While a location order is in force, the
person to whom it applies must provide the information sought by the order as
soon as practicable, or as soon as practicable after the person obtains it.
(6) The person to whom a location order
applies must comply with the order in spite of anything in any other law.
67N
Provisions about Commonwealth information orders
(1) This section applies to Commonwealth
information orders.
(2) Subject to section 67L, a court
having jurisdiction under this Part or section 111CX, or exercising
jurisdiction in proceedings arising under regulations made for the purposes of
Part XIIIAA, may make a Commonwealth information order if it is satisfied
that information about the child’s location is likely to be contained in, or to
come into, the records of the Department or Commonwealth instrumentality
concerned.
(3) A court must
not make a Commonwealth information order unless:
(a) a copy of the application for the
order has been served in accordance with the applicable Rules of Court on the
person to whom the order will apply (being the Secretary of the Department
concerned or an appropriate authority of the Commonwealth instrumentality
concerned); and
(b) if that Department or Commonwealth
instrumentality is prescribed for the purposes of this paragraph—either:
(i) the period of 7 days
after service of that copy of the application has expired; or
(ii) the court considers
that there are special circumstances because of which the order should be made
before the end of that period of 7 days.
(4) If an
application for a Commonwealth information order relates to more than one
Department or Commonwealth instrumentality, the court must not make the order
in relation to more than one of them unless the court considers it should do so
because of exceptional circumstances.
(5) A court may state that a Commonwealth
information order only applies to records of a particular kind if the court
considers that:
(a) the information sought by the
order is only likely to be contained in records of that kind; and
(b) to apply the order to all records
of the Department or Commonwealth instrumentality concerned would place an
unreasonable burden on its resources.
(6) A Commonwealth information order stays in
force for 12 months.
(7) While a Commonwealth information order is
in force, the person to whom the order applies must, subject to subsection (9),
provide the information sought by the order as soon as practicable, or as soon
as practicable after it comes into the records of the Department or
Commonwealth instrumentality concerned.
(8) If the person (the official)
to whom a Commonwealth information order applies provides another person (in
accordance with the order) with information sought by the order, the official
must, at the same time, provide the other person with any information about
actual or threatened violence to the child concerned, to a parent of the child,
or to another person with whom the child lives, that is in the records of the
Department or Commonwealth instrumentality concerned.
(9) A Commonwealth information order does not
require the records of the Department or Commonwealth instrumentality concerned
to be searched for the information sought by the order more often than once
every 3 months unless specifically so ordered by the court.
(10) The person to whom a Commonwealth
information order applies must comply with the order in spite of anything in
any other law.
67P
Information provided under location order not to be disclosed except to limited
persons
(1) Information provided to the Registry
Manager of a court under a location order (including a Commonwealth information
order) must not be disclosed by the Registry Manager, or by any other person
who obtains the information (whether directly or indirectly and whether under
this section or otherwise) because of the provision of the information to the
Registry Manager, except to:
(a) the Registry Manager of another
court; or
(b) an officer of the court, or of
another court, for the purpose of that officer’s responsibilities or duties; or
(c) a process‑server engaged by,
or by an officer of, the court or another court; or
(d) with
the leave of the court that made the location order:
(i) the legal adviser of
the applicant for the order; or
(ii) a process‑server
engaged by that legal adviser; or
(e) if a recovery order that consists
of or includes an authorisation or direction described in paragraph 67Q(b) or
(c) is in force—a person to whom the authorisation or direction is addressed;
or
(f) with the leave of the court that
made the location order:
(i) the Commonwealth
central authority; or
(ii) a central authority or
a competent authority of a Convention country.
Penalty: 120 penalty units.
Note: For the value of a penalty unit, see
subsection 4AA(1) of the Crimes Act 1914.
(2) Nothing in paragraphs (1)(a) to (e)
authorises the disclosure of information to the applicant for the location
order.
(3) In paragraph (1)(f):
central authority has the same meaning as in
section 111CA.
Commonwealth central authority has the same
meaning as in section 111CA.
competent authority has the same meaning as
in section 111CA.
Convention country has the same meaning as in
section 111CA.
67Q
Meaning of recovery order
A recovery order is an
order made by a court doing all or any of the following:
(a) requiring the return of a child
to:
(i) a parent of the child;
or
(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;
(b) authorising or directing a person
or persons, with such assistance as he or she requires or they require, and if
necessary by force, to stop and search any vehicle, vessel or aircraft, and to
enter and search any premises or place, for the purpose of finding a child;
(c) authorising or directing a person
or persons, with such assistance as he or she requires or they require, and if
necessary by force, to recover a child;
(d) authorising or directing a person
to whom a child is returned, or who recovers a child, to deliver the child to:
(i) a parent of the child;
or
(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);
(e) giving directions about the day‑to‑day
care of a child until the child is returned or delivered to another person;
(f) prohibiting a person from again
removing or taking possession of a child;
(g) authorising or directing a person
to arrest, without warrant, a person who again removes or takes possession of a
child.
Note 1: Section 122AA authorises the use of
reasonable force in making an arrest, and Subdivision D of Division 6
deals with what is to happen to a person arrested without warrant under a
recovery order.
Note 2: If a recovery order authorises a person to
recover a child, the person is authorised to recover the child on each occasion
that it is necessary to do so while the order remains in force: see subsection
67W(3).
67R
How recovery orders authorise or direct people
(1) An authorisation or direction described
in paragraph 67Q(b), (c) or (d) may be addressed to:
(a) a named person; or
(b) every person from time to time
holding or acting in a specified office of the Commonwealth or of a State or
Territory.
(2) Without limiting the generality of subsection (1),
an authorisation or direction described in paragraph 67Q(b), (c) or (d) may be
addressed to:
(a) a named person who holds an
appointment as a child recovery officer under subsection (3); or
(b) every person from time to time
holding or acting in an office of child recovery officer.
(3) The Attorney‑General may appoint
persons to be child recovery officers for the purposes of this Subdivision.
(4) An appointment under subsection (3)
may be of:
(a) a named person only; or
(b) every person from time to time
holding or acting in a specified office of the Commonwealth or of a State or
Territory.
67S
How recovery orders to stop and search etc. name or describe vehicles, places
etc.
An authorisation or direction described
in paragraph 67Q(b) may be expressed to apply to:
(a) a vehicle, vessel, aircraft,
premises or place named or described either specifically or in general terms;
or
(b) any vehicle, vessel, aircraft,
premises or place in which there is, at any time, reasonable cause to believe
that the child concerned may be found.
67T
Who may apply for a recovery order
A recovery order in relation to a child
may be applied for by:
(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
(ca) a grandparent of the child; or
(d) any other person concerned with
the care, welfare or development of the child.
67U
Court’s power to make recovery order
In proceedings for a recovery order, the
court may, subject to section 67V, make such recovery order as it thinks
proper.
67V
Child’s best interests paramount consideration in making a recovery order
In deciding whether to make a recovery
order in relation to a child, a court must regard the best interests of the
child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
67W
How long recovery order remains in force
(1) A recovery order remains in force for the
period specified in the order or 12 months, whichever is the shorter period.
(3) To avoid doubt, unless a recovery order
specifically provides to the contrary, each term of the order continues to have
effect until the end of the period for which it remains in force regardless of
whether anything has previously been done in accordance with the order.
67X
Persons not to prevent or hinder taking of action under recovery order
(1) This section applies to a recovery order
that authorises or directs a person or persons to take action as described in
paragraph 67Q(b), (c) or (d).
(2) A person must not prevent or hinder the
taking of the action by the person or persons authorised or directed to take
the action.
(3) If a court having jurisdiction under this
Part is satisfied that a person has intentionally, and without reasonable
excuse, contravened subsection (2), the court may:
(a) order the person to pay a fine not
exceeding 10 penalty units; or
(b) order the person to enter into a
recognizance (with or without surety or security) on conditions specified by
the court; or
(c) order the person to be imprisoned
until he or she enters into a recognizance (with or without surety or security)
on conditions specified by the court, or until the person has been imprisoned
for 3 months, whichever happens first.
Note: For the value of a penalty unit, see
subsection 4AA(1) of the Crimes Act 1914.
(4) A court that makes an order under subsection (3)
may make such other orders as it considers necessary to ensure the person does
not again contravene subsection (2).
67Y
Obligation to notify persons of child’s return
(1) This section applies if:
(a) a recovery order that consists of
or includes provisions described in paragraph 67Q(a), (b), (c) or (d) is in
force in relation to a child; and
(b) the child returns, or is returned,
to the person who applied for the order.
(2) The person must, as soon as practicable
after the child’s return, give notice of the child’s return to:
(a) the Registry Manager of the court
that issued the recovery order; and
(b) if a location order in relation to
the child is in force and was applied for by the person—the person to whom the
location order applies.
Subdivision D—Allegations of child abuse
67Z
Where party to proceedings makes allegation of child abuse
(1) This section applies if a party to proceedings
under this Act alleges that a child to whom the proceedings relate has been
abused or is at risk of being abused.
(2) The party must file a notice in the
prescribed form in the court hearing the proceedings, and serve a true copy of
the notice upon the person who is alleged to have abused the child or from whom
the child is alleged to be at risk of abuse.
(3) If a notice under subsection (2) is
filed in a court, the Registry Manager must, as soon as practicable, notify a
prescribed child welfare authority.
(4) In this
section:
prescribed form means the form prescribed by
the applicable Rules of Court.
Registry Manager means:
(a) in relation to the Family
Court—the Registry Manager of the Registry of the Court; and
(b) in relation to the Family Court of
Western Australia—the Principal Registrar, a Registrar or a Deputy Registrar,
of the court; and
(c) in relation to any other court—the
principal officer of that court.
67ZA
Where member of the Court personnel, family counsellor, family dispute resolution
practitioner or arbitrator suspects child abuse etc.
(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.
(2) If the person has reasonable grounds for
suspecting that a child has been abused, or is at risk of being abused, the
person must, as soon as practicable, notify a prescribed child welfare
authority of his or her suspicion and the basis for the suspicion.
(3) If the person has reasonable grounds for
suspecting that a child:
(a) has been ill treated, or is at
risk of being ill treated; or
(b) has been exposed or subjected, or
is at risk of being exposed or subjected, to behaviour which psychologically
harms the child;
the person may notify a prescribed child welfare authority
of his or her suspicion and the basis for the suspicion.
(4) The person
need not notify a prescribed child welfare authority of his or her suspicion
that a child has been abused, or is at risk of being abused, if the person
knows that the authority has previously been notified about the abuse or risk
under subsection (2) or subsection 67Z(3), but the person may notify the
authority of his or her suspicion.
(5) If notice under this section is given
orally, written notice confirming the oral notice is to be given to the
prescribed child welfare authority as soon as practicable after the oral notice.
(6) If the person notifies a prescribed child
welfare authority under this section or subsection 67Z(3), the person may make
such disclosures of other information as the person reasonably believes are
necessary to enable the authority to properly manage the matter the subject of
the notification.
67ZB
No liability for notification under section 67Z or 67ZA
(1) A person:
(a) must give notice under subsection
67Z(3) or 67ZA(2); or
(b) may give notice under subsection
67ZA(3) or (4); or
(c) may disclose other information
under subsection 67ZA(6);
in spite of any obligation of confidentiality imposed on
the person by this Act, another Act, another law or anything else (including a
contract or professional ethics).
(2) A person is not liable in civil or
criminal proceedings, and is not to be considered to have breached any
professional ethics, in respect of a notification under subsection 67Z(3) or
67ZA(2).
(3) A person is not liable in civil or
criminal proceedings, and is not to be considered to have breached any
professional ethics, in respect of a notification under subsection 67ZA(3) or
(4), or a disclosure under subsection 67ZA(6), if the notification or
disclosure is made in good faith.
(4) Evidence
of a notification under subsection 67Z(3) or subsection 67ZA(2), (3) or (4), or
a disclosure under subsection 67ZA(6), is not admissible in any court except
where that evidence is given by the person who made the notification or
disclosure.
(5) In this section:
court means a court (whether or not exercising
jurisdiction under this Act) and includes a tribunal or other body concerned
with professional ethics.
Subdivision E—Other orders about children
67ZC
Orders relating to welfare of children
(1) In addition to the jurisdiction that a
court has under this Part in relation to children, the court also has
jurisdiction to make orders relating to the welfare of children.
Note: Division 4 of Part XIIIAA
(International protection of children) may affect the jurisdiction of a court
to make an order relating to the welfare of a child.
(2) In deciding whether to make an order
under subsection (1) in relation to a child, a court must regard the best
interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a
court determines a child’s best interests.
67ZD
Orders for delivery of passports
If a court having jurisdiction under
this Part considers that there is a possibility or threat that a child may be
removed from Australia, it may order the passport of the child and of any other
person concerned to be delivered up to the court upon such conditions as the
court considers appropriate.
Division 9—Injunctions
68A
What this Division does
This Division deals with proceedings for
injunctions in relation to children.
68B Injunctions
(1) If proceedings are instituted in a court
having jurisdiction under this Part for an injunction in relation to a child,
the court may make such order or grant such injunction as it considers
appropriate for the welfare of the child, including:
(a) an injunction for the personal
protection of the child; or
(b) an injunction for the personal
protection of:
(i) a parent of the child;
or
(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
(c) an injunction restraining a person
from entering or remaining in:
(i) a place of residence,
employment or education of the child; or
(ii) a specified area that
contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person
from entering or remaining in:
(i) a place of residence,
employment or education of a person referred to in paragraph (b); or
(ii) a specified area that
contains a place of a kind referred to in subparagraph (i).
(2) A court
exercising jurisdiction under this Act (other than in proceedings to which subsection (1)
applies) may grant an injunction in relation to a child, by interlocutory order
or otherwise, in any case in which it appears to the court to be just or
convenient to do so.
(3) An injunction under this section may be
granted unconditionally or on such terms and conditions as the court considers
appropriate.
68C
Powers of arrest
(1) If:
(a) an injunction is in force under
section 68B for the personal protection of a person (the protected
person); and
(b) a police officer believes, on
reasonable grounds, that the person (the respondent) against whom
the injunction is directed has breached the injunction by:
(i) causing, or
threatening to cause, bodily harm to the protected person; or
(ii) harassing, molesting
or stalking that person;
the police officer may arrest the respondent without
warrant.
Note: Section 122AA authorises the use of
reasonable force in making an arrest.
(2) For the purposes of subsection (1),
an injunction granted under section 68B is an injunction for the personal
protection of a person if, and only if, it is expressed to be for the personal
protection of the person.
(3) Subsections 114AA(3), (4), (5) and (7)
apply in relation to a person arrested under this section as if:
(a) the person had been arrested under
subsection 114AA(1) because he or she was believed to have breached an
injunction granted under section 114; and
(b) the person on whose application
the injunction was granted under section 68B were the person on whose
application the injunction under section 114 had been granted.
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.
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.
Division 12—Proceedings and jurisdiction
Subdivision A—What this Division does
69A
What this Division does
This Division deals with:
(a) the institution of proceedings and
procedure (Subdivision B); and
(b) jurisdiction of courts
(Subdivision C); and
(c) presumptions of parentage
(Subdivision D); and
(d) parentage evidence (Subdivision
E); and
(e) the places and people to which
this Part extends and applies (Subdivision F).
Subdivision B—Institution of proceedings and procedure
69B
Certain proceedings to be instituted only under this Part
(1) Proceedings that may be instituted under
this Part must not, after the commencement of this section, be instituted
otherwise than under this Part.
(2) Subsection (1) does not apply in
relation to the institution of proceedings under the Child Support
(Assessment) Act 1989 or the Child Support (Registration and Collection)
Act 1988.
69C
Who may institute proceedings
(1) Sections 65C, 66F, 67F, 67K and 67T
and subsection 68T(4) are express provisions dealing with who may institute
particular kinds of proceedings in relation to children.
(2) Any other kind of proceedings under this
Act in relation to a child may, unless a contrary intention appears, be
instituted by:
(a) either or both of the child’s
parents; or
(b) the child; or
(c) a grandparent of the child; or
(d) any other person concerned with
the care, welfare or development of the child.
69D
Institution of maintenance proceedings by authorised authority or person
(1) The regulations may make provision with
respect to authorising:
(a) a specified authority of the
Commonwealth or of a State or Territory; or
(b) the person from time to time
holding or acting in a specified office established under a law of the
Commonwealth or of a State or Territory;
to institute and conduct, on behalf of a child, in the
authority’s or person’s discretion, proceedings with respect to the maintenance
of the child.
(2) Proceedings instituted on behalf of a
child under regulations covered by subsection (1) are taken, for the
purposes of section 69C and the provisions referred to in it, to have been
instituted by the child.
69E
Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this
Act in relation to a child only if:
(a) the child is present in Australia
on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian
citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an
Australian citizen, is ordinarily resident in Australia, or is present in Australia,
on the relevant day; or
(d) a party to the proceedings is an
Australian citizen, is ordinarily resident in Australia, or is present in Australia,
on the relevant day; or
(e) it
would be in accordance with a treaty or arrangement in force between Australia
and an overseas jurisdiction, or the common law rules of private international
law, for the court to exercise jurisdiction in the proceedings.
(2) In this
section:
relevant day,
in relation to proceedings, means:
(a) if the application instituting the
proceedings is filed in a court—the day on which the application is filed; or
(b) in any other case—the day on which
the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA
(International protection of children) has effect despite this section.
69F
Applicant may be in contempt
A court may proceed with the hearing of
proceedings in relation to a child even though the person who instituted the
proceedings has failed to comply with an order of the court or of another court
having jurisdiction under this Act.
Subdivision C—Jurisdiction of courts
69G
Interpretation
In this Subdivision:
matters arising under this Part includes
proceedings under Division 9 or section 68S.
69H
Jurisdiction of Family Court, State Family Courts, Northern Territory
Supreme Court and Federal Magistrates Court
(1) Jurisdiction is conferred on the Family
Court in relation to matters arising under this Part.
(2) Each Family Court of a State is invested
with federal jurisdiction in relation to matters arising under this Part.
(3) Subject to section 69K, jurisdiction
is conferred on the Supreme Court of the Northern Territory in relation to
matters arising under this Part.
(4) Jurisdiction is conferred on the Federal Magistrates
Court in relation to matters arising under this Part (other than proceedings for
leave under section 60G).
69J
Jurisdiction of courts of summary jurisdiction
(1) Subject to subsection (5), each
court of summary jurisdiction of each State is invested with federal
jurisdiction in relation to matters arising under this Part (other than
proceedings for leave under section 60G).
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) Subject to subsection (5) and
section 69K, jurisdiction is conferred on each court of summary
jurisdiction of each Territory in relation to matters arising under this Part
(other than proceedings for leave under section 60G).
(3) The Governor‑General may, by
Proclamation, fix a day as the day on and after which proceedings in relation
to matters arising under this Part may not be instituted in, or transferred to,
a court of summary jurisdiction in a specified State or Territory.
(4) Without limiting the generality of subsection (3),
a Proclamation under that subsection may be expressed to apply only in relation
to one or more of the following:
(a) proceedings of specified classes;
(b) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction in a
specified part of a State or Territory;
(c) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction constituted
in a specified way.
(5) A court of summary jurisdiction must not
hear and determine proceedings under this Part otherwise than in accordance
with any Proclamation in force under subsection (3).
(6) The Governor‑General may, by
Proclamation, declare that a Proclamation under subsection (3) is revoked
on and from a specified day.
(7) If, under subsection (6), the
Governor‑General declares that a Proclamation under subsection (3)
is revoked:
(a) this Part (including subsection (3))
has effect as if the revoked Proclamation had not been made; but
(b) the effect of the revoked
Proclamation on the jurisdiction of courts before the specified day is not
affected.
69K
Territory court does not have jurisdiction unless a party is ordinarily
resident in the Territory
A court of a Territory must not hear or
determine proceedings under this Part unless at least one of the parties to the
proceedings is ordinarily resident in the Territory when the proceedings are
instituted or are transferred to the court.
69L
Jurisdiction in relation to transferred matters under other Commonwealth laws
If proceedings in relation to a matter
arising under a law of the Commonwealth are transferred under this Act to a
court that has jurisdiction conferred on or invested in it by this Division,
the jurisdiction so conferred on or invested in the court includes jurisdiction
in relation to that matter.
69M
Jurisdiction is additional to other jurisdiction
The jurisdiction conferred on or
invested in a court by this Division is in addition to any jurisdiction
conferred on or invested in the court apart from this Division.
69N
Transfer of proceedings from courts of summary jurisdiction in certain cases
(1) This section applies if:
(a) proceedings for a parenting order
(other than a child maintenance order) are instituted in a court of summary jurisdiction
(other than the Magistrates Court of Western Australia constituted by a Family
Law Magistrate of Western Australia); and
(b) the respondent, in answer to the
application by which the proceedings were instituted, seeks an order different
from that sought in the application.
(2) The court must, before going on to hear
and determine the proceedings, inform the parties that, unless each of them
consents to the court hearing and determining the proceedings, the court is
required to transfer the proceedings to:
(a) the Family Court; or
(b) a Family Court of a State; or
(c) the Supreme Court of the Northern
Territory; or
(d) the Federal Magistrates Court.
(3) If the parties do not consent to the
court hearing and determining the proceedings, the court must transfer the
proceedings to:
(a) the Family Court; or
(b) a Family Court of a State; or
(c) the Supreme Court of the Northern
Territory; or
(d) the Federal Magistrates Court.
(4) Before transferring the proceedings, the
court may make such orders (including an order under subsection 62F(2)) as it
considers necessary pending the disposal of the proceedings by the court to
which they are transferred.
(5) If the
parties consent to the court hearing and determining the proceedings:
(a) a party is not entitled, without
leave of the court, subsequently to object to the proceedings being heard and
determined by the court; but
(b) the court may, on its own
initiative, transfer the proceedings to:
(i) the Family Court; or
(ii) a Family Court of a State;
or
(iii) the Supreme Court of
the Northern Territory; or
(iv) the Federal Magistrates
Court.
(6) If the court subsequently gives leave to
a party to object to the proceedings being heard and determined by the court,
the court must transfer the proceedings to:
(a) the Family Court; or
(b) a Family Court of a State; or
(c) the Supreme Court of the Northern
Territory; or
(d) the Federal Magistrates Court.
(7) A court to which proceedings are
transferred must deal with the proceedings as if they had been instituted in
the court.
(8) Failure by a court of summary
jurisdiction to comply with this section in relation to proceedings does not
invalidate any order made by the court in the proceedings.
(9) Subsection (8) does not affect the
duty of a court of summary jurisdiction to comply with this section.
Subdivision D—Presumptions of parentage
69P
Presumptions of parentage arising from marriage
(1) If a child is born to a woman while she
is married, the child is presumed to be a child of the woman and her husband.
(2) If:
(a) at a particular time:
(i) a marriage to which a
woman is a party is ended by death; or
(ii) a purported marriage
to which a woman is a party is annulled; and
(b) a child is born to the woman
within 44 weeks after that time;
the child is presumed to be a child of the woman and the
husband or purported husband.
(3) If:
(a) the parties to a marriage
separated at any time; and
(b) after the separation, they resumed
cohabitation on one occasion; and
(c) within 3 months after the
resumption of cohabitation, they separated again and lived separately and
apart; and
(d) a child is born to the woman
within 44 weeks after the end of the cohabitation, but after the divorce of the
parties;
the child is presumed to be a child of the woman and the
husband.
69Q
Presumption of paternity arising from cohabitation
If:
(a) a child is born to a woman; and
(b) at
any time during the period beginning not earlier than 44 weeks and ending not
less than 20 weeks before the birth, the woman cohabited with a man to whom she
was not married;
the child is presumed to be a child of the man.
69R
Presumption of parentage arising from registration of birth
If a person’s name is entered as a
parent of a child in a register of births or parentage information kept under a
law of the Commonwealth or of a State, Territory or prescribed overseas
jurisdiction, the person is presumed to be a parent of the child.
69S
Presumptions of parentage arising from findings of courts
(1) If:
(a) during the lifetime of a
particular person, a prescribed court (other than a court of a prescribed
overseas jurisdiction) has:
(i) found expressly that
the person is a parent of a particular child; or
(ii) made a finding that it
could not have made unless the person was a parent of a particular child; and
(b) the finding has not been altered,
set aside or reversed;
the person is conclusively presumed to be a parent of the
child.
(1A) If:
(a) during the lifetime of a
particular person, a court of a reciprocating jurisdiction within the meaning
of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the
regulations has:
(i) found expressly that
the person is a parent of a particular child; or
(ii) made a finding that it
could not have made unless the person was a parent of a particular child; and
(b) the finding has not been altered,
set aside or reversed;
the person is presumed to be a parent of the child.
(2) If:
(a) after
the death of a particular person, a prescribed court has:
(i) found expressly that the
person was a parent of a particular child; or
(ii) made a finding that it
could not have made unless the person was a parent of a particular child; and
(b) the finding has not been altered,
set aside or reversed;
the person is presumed to have been a parent of the child.
(3) In this
section:
prescribed court means a federal court, a
court of a State or Territory or a court of a prescribed overseas jurisdiction.
69T
Presumption of paternity arising from acknowledgments
If:
(a) under the law of the Commonwealth
or of a State, Territory or prescribed overseas jurisdiction, a man has
executed an instrument acknowledging that he is the father of a specified
child; and
(b) the instrument has not been
annulled or otherwise set aside;
the man is presumed to be the father of the child.
69U
Rebuttal of presumptions etc.
(1) A presumption arising under this
Subdivision is rebuttable by proof on a balance of probabilities.
(2) Where:
(a) 2 or more presumptions arising
under this Subdivision are relevant in any proceedings; and
(b) those presumptions, or some of
those presumptions, conflict with each other and are not rebutted in the
proceedings;
the presumption that appears to the court to be the more
or most likely to be correct prevails.
(3) This section does not apply to a
presumption arising under subsection 69S(1).
Subdivision E—Parentage evidence
69V
Evidence of parentage
If the parentage of a child is a
question in issue in proceedings under this Act, the court may make an order
requiring any person to give such evidence as is material to the question.
69VA
Declarations of parentage
As well
as deciding, after receiving evidence, the issue of the parentage of a child
for the purposes of proceedings, the court may also issue a declaration of parentage
that is conclusive evidence of parentage for the purposes of all laws of the
Commonwealth.
69W
Orders for carrying out of parentage testing procedures
(1) If the parentage of a child is a question
in issue in proceedings under this Act, the court may make an order (a parentage
testing order) requiring a parentage testing procedure to be carried
out on a person mentioned in subsection (3) for the purpose of obtaining
information to assist in determining the parentage of the child.
(2) A court may make a parentage testing
order:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the
proceedings; or
(ii) an independent
children’s lawyer representing the child’s interests under an order made under
section 68L.
(3) A parentage testing order may be made in
relation to:
(a) the child; or
(b) a person known to be the mother of
the child; or
(c) any other person, if the court is
of the opinion that, if the parentage testing procedure were to be carried out
in relation to the person, the information that could be obtained might assist
in determining the parentage of the child.
(4) A parentage testing order may be made
subject to terms and conditions.
(5) This section does not affect the
generality of section 69V.
69X
Orders associated with parentage testing orders
(1) If a court makes a parentage testing
order, it may also make orders under subsection (2) or (4).
(2) The court may make such orders as it
considers necessary or desirable:
(a) to enable the parentage testing
procedure to be carried out; or
(b) to make the parentage testing
procedure more effective or reliable.
(3) Some examples of the kinds of orders the
court may make under subsection (2) are as follows:
(a) an order requiring a person to
submit to a medical procedure;
(b) an order requiring a person to
provide a bodily sample;
(c) an order requiring a person to
provide information relevant to the person’s medical or family history.
(4) The court may make such orders as it
considers just in relation to costs incurred in relation to:
(a) the carrying out of the parentage
testing procedure or other orders made by the court in relation to the
parentage testing procedure; or
(b) the preparation of reports
relating to the information obtained as a result of carrying out the parentage
testing procedure.
69XA
Matters related particularly to parentage testing for purposes of an
international agreement or arrangement
(1) The Secretary may commence or continue
proceedings under section 69W if it is necessary or convenient to do so
for the purposes of an international agreement or arrangement.
(2) Despite section 69X, a court must
order that the costs of any parentage testing procedure ordered in proceedings
mentioned in subsection (1) are payable by a party to those proceedings
who:
(a) contested the making of a
maintenance assessment or court order for child support on the ground of not
being the parent of the child; or
(b) contested the enforcement of an
overseas maintenance order, agreement or assessment on the ground of not being
the parent of the child.
(3) If a parentage testing procedure that is
ordered by a court in proceedings mentioned in subsection (1) establishes
that a party contesting parentage in those proceedings was not a parent of the
child, the court may order that the costs of the procedure are payable by the
Secretary.
(4) A report in relation to information
obtained as a result of a parentage testing procedure, received by the
Secretary from an administrative or judicial authority in a reciprocating
jurisdiction within the meaning of section 110 or a jurisdiction mentioned
in Schedule 4 or 4A to the regulations, may be received in evidence in any
proceedings under this Act.
69Y
Orders directed to persons 18 or over
(1) If a person who is 18 or over contravenes
a parentage testing order or an order under section 69X, the person is not
liable to any penalty in relation to the contravention.
(2) The court may draw such inferences from
the contravention as appear just in the circumstances.
69Z Orders
directed to children under 18
(1) This section applies if a parentage
testing order, or an order under section 69X, requires a medical procedure
or other act to be carried out in relation to a child who is under 18.
(2) The procedure or act must not be carried
out in relation to the child under the order without the consent of:
(a) a parent of the child; or
(b) a guardian of the child; or
(c) a person who, under a parenting
order, has responsibility for the child’s long‑term or day‑to‑day
care, welfare and development.
(3) The court may draw such inferences from a
failure or refusal to consent as mentioned in subsection (2) as appear
just in the circumstances.
69ZA
No liability if parent etc. consents
(1) A person who carries out, or who assists
in the carrying out of, a medical procedure or other act in relation to a child
under a parentage testing order is not liable to any civil or criminal action
in relation to the proper carrying out of the procedure or act if it is carried
out with the consent of:
(a) a parent of the child; or
(b) a guardian of the child; or
(c) a person who, under a parenting
order, has responsibility for the child’s long‑term or day‑to‑day
care, welfare and development.
(2) Subsection (1) does not affect any
liability of a person for an act done negligently, or negligently omitted to be
done, in relation to the carrying out of the medical procedure or act.
69ZB
Regulations about carrying out, and reporting on, parentage testing procedures
The regulations may make provision
relating to:
(a) the carrying out of parentage
testing procedures under parentage testing orders; and
(b) the preparation of reports
relating to the information obtained as the result of carrying out such
procedures.
69ZC
Reports of information obtained may be received in evidence
(1) A report made in accordance with
regulations covered by paragraph 69ZB(b) may be received in evidence in any
proceedings under this Act.
(2) If, under subsection (1), a report
is received in evidence in proceedings under this Act, the court may make an
order requiring the person who made the report, or any person whose evidence
may be relevant in relation to the report, to appear before the court and give
evidence in relation to the report.
(3) A court may make an order under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the
proceedings; or
(ii) an independent
children’s lawyer representing the relevant child’s interests under an order
made under section 68L.
69ZD
Parentage testing for purposes of international maintenance agreements
For the purpose of the carrying out of
any of Australia’s obligations under:
(a) an arrangement with a
reciprocating jurisdiction, or with a jurisdiction with restricted reciprocity,
within the meaning of section 110; or
(b) the Convention referred to in
section 111; or
(ba) the Convention on the Recognition
and Enforcement of Decisions Relating to Maintenance Obligations signed at The
Hague on 2 October 1973; or
(bb) the Agreement between the
Government of Australia and the Government of New Zealand on Child and Spousal
Maintenance signed at Canberra on 12 April 2000; or
(bc) the Agreement between the
Government of the United States of America and the Government of Australia for
the Enforcement of Maintenance (Support) Obligations, which was concluded and
entered into force on 12 December 2002;
the regulations may make provision:
(c) conferring jurisdiction on a court
to make an order requiring a parentage testing procedure to be carried out at
the request of:
(i) a court or authority
in a foreign country; or
(ii) the Secretary to the
Department, or a person authorised by the Secretary; or
(d) for the carrying out of a
parentage testing procedure, and the preparation of a report in relation to the
information obtained as a result of the carrying out of the procedure; or
(e) for the admissibility in legal
proceedings of a report, in relation to the information obtained as a result of
the carrying out of a parentage testing procedure, received from an authority
in a foreign country;
whether or not there is any express provision in the
relevant arrangement or in the Convention authorising the carrying out of a
parentage testing procedure.
Subdivision F—Extension, application and additional operation of Part
69ZE
Extension of Part to the States
(1) Subject to this section and section 69ZF,
this Part extends to New South Wales, Victoria, Queensland, South Australia and
Tasmania.
(2) Subject to this section and section 69ZF,
this Part extends to Western Australia if:
(a) the Parliament of Western
Australia refers to the Parliament of the Commonwealth the following matters
or matters that include, or are included in, the following matters:
(i) the maintenance of
children and the payment of expenses in relation to children or child bearing;
(ii) parental
responsibility for children; or
(b) Western Australia adopts this
Part.
(3) This Part extends to a State under subsection (1)
or (2) only for so long as there is in force:
(a) an Act of the Parliament of the
State by which there is referred to the Parliament of the Commonwealth:
(i) the matters referred
to in subparagraphs (2)(a)(i) and (ii); or
(ii) matters that include,
or are included in, those matters; or
(b) a law of the State adopting this
Part.
(4) This Part extends to a State at any time
under subsection (1) or paragraph (2)(a) only in so far as it makes
provision with respect to:
(a) the matters that are at that time
referred to the Parliament of the Commonwealth by the Parliament of the State;
or
(b) matters incidental to the
execution of any power vested by the Constitution in the Parliament of the
Commonwealth in relation to those matters.
69ZF
Unless declaration in force, Part’s extension to a State has effect subject to
modifications
(1) The Governor‑General may, by
Proclamation, declare that all the child welfare law provisions of this Part
extend to a specified State.
(2) Despite anything in section 69ZE, if
no declaration under subsection (1) is in force in relation to a
particular State, this Part, as it extends to that State because of section 69ZE,
has effect as if:
(a) subsection 66F(2) were omitted;
and
(b) subsections 69ZE(1) and (2) were
amended by omitting “and section 69ZF”; and
(c) section 69ZF were omitted;
and
(d) paragraph 69ZK(1)(b) were omitted;
and
(e) subsection 69ZK(2) were amended by
adding at the end the following word and paragraphs:
“; or (d) the
jurisdiction of a court under a child welfare law to make an order in relation
to the maintenance of the child; or
(e) an
order of the kind referred to in paragraph (d).”.
(3) A Proclamation that was in force in
relation to a State under subsection 60E(6) of this Act as in force before the
commencement of this section has effect, after that commencement, as if it were
a Proclamation under subsection (1) of this section.
Note: This section preserves the effect of
subsections 60E(6) and (7) of this Act as in force before the commencement of
this section. Under those subsections, the amendments of this Act made by the Law
and Justice Legislation Amendment Act 1992 did not extend to a State unless
a Proclamation was in force in relation to the State.
69ZG
Application of Part in, and in relation to, Territories
This Part applies in and in relation to
the Territories.
69ZH
Additional application of Part
(1) Without prejudice to its effect apart
from this section, this Part also has effect as provided by this section.
(2) By virtue of this subsection, Subdivision
BA of Division 1, Divisions 2 to 7 (inclusive) (other than
Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N),
Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and
Subdivisions B and C of Division 12 (other than section 69D) have the
effect, subject to subsection (3), that they would have if:
(a) each reference to a child were, by
express provision, confined to a child of a marriage; and
(b) each reference to the parents of
the child were, by express provision, confined to the parties to the marriage.
(3) The provisions mentioned in subsection (2)
only have effect as mentioned in that subsection so far as they make provision
with respect to the parental responsibility of the parties to a marriage for a
child of the marriage, including (but not being limited to):
(a) the duties, powers,
responsibilities and authority of those parties in relation to:
(i) the maintenance of the
child and the payment of expenses in relation to the child; or
(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
(b) other aspects of duties, powers,
responsibilities and authority in relation to the child:
(i) arising out of the
marital relationship; or
(ii) in relation to
concurrent, pending or completed divorce or validity of marriage proceedings
between those parties; or
(iii) in
relation to the divorce of the parties to that marriage, an annulment of that
marriage or a legal separation of the parties to that marriage, that is
effected in accordance with the law of an overseas jurisdiction and that is
recognised as valid in Australia under section 104.
(4) By virtue of this subsection, Division 1,
Subdivisions C, D and E of Division 6, section 69D, Subdivisions D
and E of Division 12 and Divisions 13 and 14 and this Subdivision,
have effect according to their tenor.
69ZJ
Additional jurisdiction of courts
In addition to the jurisdiction that,
apart from this section, is invested in or conferred on a court under this
Part, the court is invested with jurisdiction or jurisdiction is conferred on
the court, as the case requires, in matters between residents of different
States, being matters with respect to:
(a) the maintenance of children and
the payment of expenses in relation to children or child bearing; or
(b) parental responsibility in
relation to children.
69ZK
Child welfare laws not affected
(1) A court having jurisdiction under this
Act must not make an order under this Act (other than an order under Division 7)
in relation to a child who is under the care (however described) of a person
under a child welfare law unless:
(a) the order is expressed to come
into effect when the child ceases to be under that care; or
(b) the order is made in proceedings
relating to the child in respect of the institution or continuation of which
the written consent of a child welfare officer of the relevant State or
Territory has been obtained.
(2) Nothing in
this Act, and no decree under this Act, affects:
(a) the
jurisdiction of a court, or the power of an authority, under a child welfare
law to make an order, or to take any other action, by which a child is placed
under the care (however described) of a person under a child welfare law; or
(b) any such order made or action
taken; or
(c) the operation of a child welfare
law in relation to a child.
(3) If it appears to a court having
jurisdiction under this Act that another court or an authority proposes to make
an order, or to take any other action, of the kind referred to in paragraph (2)(a)
in relation to a child, the first‑mentioned court may adjourn any
proceedings before it that relate to the child.
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 other
proceedings between the parties that involve the court exercising jurisdiction
under this Act if:
(a) the proceedings:
(i) arise from the
breakdown of the parties’ marital relationship; or
(ii) are a de facto
financial cause; and
(b) 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.
(4) The court must not, in proceedings under
this Part in which the court is required to regard the best interests of the
child as the paramount consideration, direct under:
(a) subsection 126B(1) of the Evidence
Act 1995; or
(b) a law of a State or Territory
relating to professional confidential relationship privilege specified in the
regulations;
that evidence not be adduced if the court considers that
adducing the evidence would be in the best interests of the child.
Division 13—State, Territory and overseas orders
Subdivision A—What this Division does
70A
What this Division does
This Division provides for:
(a) the registration of State and
Territory orders dealing with children (Subdivision B); and
(b) the registration of overseas
orders dealing with children (Subdivision C); and
(c) the transmission of Australian
orders to overseas jurisdictions (Subdivision D).
Subdivision B—Registration of State and Territory orders
70C
General registration of orders made under law of prescribed State
The applicable Rules of Court may make
provision for and in relation to the registration in a court having
jurisdiction under this Part of State child orders made under a law of a
prescribed State.
70D
Registration of orders in a particular State
The applicable Rules of Court may make
provision for and in relation to the registration in a State in a court having
jurisdiction under this Act of State child orders made by a court in another
State.
70E
Effect of registration
A State child order registered in a
court under section 70C or 70D has the same force and effect as if it were
an order made by that court under this Part.
Subdivision C—Registration of overseas orders
70G
Registration of orders
The regulations may make provision for
and in relation to the registration in courts in Australia of overseas child
orders, other than excluded orders.
70H
Effect of registration—general
An overseas child order registered in a
court under section 70G has the same force and effect as if it were an
order made by that court under this Part.
Note: Division 4 of Part XIIIAA
(International protection of children) may affect the operation of a registered
overseas child order.
70J
Effect of registration on exercise of jurisdiction
(1) A court in Australia that is aware that
an overseas child order is registered under section 70G must not exercise
jurisdiction in proceedings for the making of a Subdivision C parenting order
in relation to the child concerned unless:
(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
(b) the court is satisfied that there
are substantial grounds for believing that the child’s welfare requires that
the court exercise jurisdiction in the proceedings.
(2) If a court exercises jurisdiction in
proceedings for a Subdivision C parenting order in relation to a child who is
the subject of an overseas child order, the court must not make a Subdivision C
parenting order in relation to the child unless it is satisfied:
(a) that the welfare of the child is
likely to be adversely affected if the order is not made; or
(b) that there has been such a change
in the circumstances of the child since the making of the overseas child order
that the Subdivision C parenting order ought to be made.
70K
Cancellation of registration if Subdivision C parenting order made
If a court:
(a) is aware that an overseas child
order is registered under section 70G; and
(b) makes
a Subdivision C parenting order in relation to the child concerned;
the court must cancel the registration of the overseas
child order.
70L
Relationship between Australian orders and registered overseas child orders
(1) In this section:
Australian child order means:
(a) a Subdivision C parenting order;
or
(b) a State child order.
responsible person, in relation to an
Australian child order or an overseas child order, means a person:
(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
(b) who is responsible for the child’s
day‑to‑day care, welfare and development under the order; or
(c) who has a right to custody of, or
access to, the child under the order.
(2) This section applies if:
(a) an Australian child order, whether
made under this Part or another law, is in force under this Part in relation to
a child; and
(b) an overseas child order, other
than an excluded order, that relates to the child but that has a different
effect from the Australian order has been registered under section 70G
(whether before or after the making of the Australian child order) and its
registration has not been cancelled.
(3) A responsible person under the overseas
child order may apply to a court having jurisdiction under this Part for the
discharge of the Australian child order.
(4) A responsible person under the Australian
child order may apply to a court having jurisdiction under this Part for the
cancellation of the registration of the overseas child order.
(5) If an application is made under subsection (3)
or (4), the court must:
(a) if a condition specified in subsection (6)
is satisfied—cancel the registration of the overseas child order; or
(b) in any other case—discharge the
Australian child order.
(6) For the purposes of paragraph (5)(a),
the conditions are:
(a) each responsible person under the
overseas child order consents to the cancellation of the registration of the
order; or
(b) the court is satisfied that there
are substantial grounds for believing that the child’s welfare will be
adversely affected if the overseas child order continues to operate in relation
to the child; or
(c) the court is satisfied that there
has been a change in the circumstances of the child since the overseas child
order was made that makes it inappropriate for the order to continue to operate
in relation to the child.
Subdivision D—Transmission of Australian orders to overseas jurisdictions
70M
Registrar to send documents etc. to overseas jurisdiction
(1) This section applies if:
(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
(b) the order is enforceable in a
prescribed overseas jurisdiction under provisions corresponding to Subdivision
C.
(1A) This section
also applies if:
(a) a court in Australia makes, in
relation to a child who is under 18, an order under regulations made for the
purposes of section 111B; and
(b) the order is enforceable in a
convention country (within the meaning of those regulations) under provisions
corresponding to Subdivision C.
(2) A person referred to in subsection (3)
may, in writing, request the Registry Manager of the court to send to an
appropriate court or authority in the overseas jurisdiction or convention
country the documents and information necessary for securing the enforcement of
the order in the overseas jurisdiction or convention country.
(3) A request under subsection (2) may
be made by:
(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
(b) a person who has a right to
custody of, or of access to, the child under the order.
(4) The Registry Manager of the court must
comply with a request under subsection (2).
70N
Regulations may deal with sending Australian orders etc. to overseas jurisdiction
(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.
(2) The
regulations may make provision for and in relation to the sending to a
convention country (within the meaning of the regulations made for the purposes
of section 111B) of copies of, and documents relating to, an order under
regulations made for the purposes of that section, that relates to a child to
whom an overseas child order relates.
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.
Division 14—Miscellaneous
70P
What this Division does
This Division deals with miscellaneous
matters relating to children.
70Q
Certain instruments not liable to duty
(1) The following instruments are not subject
to any duty or charge under any law of a State or Territory or any law of the
Commonwealth that applies only in relation to a Territory:
(a) an instrument executed under, or
for the purposes of, an order made under this Part;
(b) an eligible parenting plan that
confers a benefit in relation to a child, to the extent to which it confers the
benefit;
(c) an instrument executed under, or
for the purposes of, an eligible parenting plan and that confers a benefit in
relation to a child, to the extent to which it confers the benefit.
(2) An eligible parenting plan
is a parenting plan:
(a) that is a registered parenting
plan within the meaning of subsection 63C(6); and
(b) that is not a maintenance
agreement, or, if it is a maintenance agreement, it relates to a child who is
not a child of the marriage to which the maintenance agreement relates; and
(c) that:
(i) is made by the parties
to a de facto relationship in connection with the breakdown of that
relationship; or
(ii) relates to a child
whose parents (being parties to the plan) were neither married to each other,
nor living with each other in a de facto relationship, at the time of the
child’s conception.
(3) In this
section, a reference to an instrument that confers a benefit in relation
to a child includes a reference to an instrument that confers an
entitlement to property in relation to a child even though the instrument also
deprives the child or another person of an entitlement to other property in
relation to the child.
Part VIII—Property, spousal maintenance and maintenance agreements
71
Interpretation
In this Part:
marriage includes a void marriage.
re‑marriage, in relation to a person
who was a party to a purported marriage that is void, means marriage.
71A
This Part does not apply to certain matters covered by binding financial
agreements
(1) This Part does not apply to:
(a) financial matters to which a
financial agreement that is binding on the parties to the agreement applies; or
(b) financial resources to which a
financial agreement that is binding on the parties to the agreement applies.
(2) Subsection (1) does not apply in
relation to proceedings of a kind referred to in paragraph (caa) or (cb)
of the definition of matrimonial cause in subsection 4(1).
72
Right of spouse to maintenance
(1) A party to a marriage is liable to
maintain the other party, to the extent that the first‑mentioned party is
reasonably able to do so, if, and only if, that other party is unable to
support herself or himself adequately whether:
(a) by reason of having the care and
control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or
mental incapacity for appropriate gainful employment; or
(c) for
any other adequate reason;
having regard to any relevant matter referred to in
subsection 75(2).
(2) The liability under subsection (1)
of a bankrupt party to a marriage to maintain the other party may be satisfied,
in whole or in part, by way of the transfer of vested bankruptcy property in
relation to the bankrupt party if the court makes an order under this Part for
the transfer.
74
Power of court in spousal maintenance proceedings
(1) In proceedings with respect to the
maintenance of a party to a marriage, the court may make such order as it
considers proper for the provision of maintenance in accordance with this Part.
(2) If:
(a) an application is made for an
order under this section in proceedings between the parties to a marriage with
respect to the maintenance of a party to the marriage; and
(b) either of the following
subparagraphs apply to a party to the marriage:
(i) when the application
was made, the party was a bankrupt;
(ii) after the application
was made but before the proceedings are finally determined, the party became a
bankrupt; and
(c) the bankruptcy trustee applies to
the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the bankrupt’s creditors may be affected by the making of an order
under this section in the proceedings;
the court must join the bankruptcy trustee as a party to
the proceedings.
(3) If a bankruptcy trustee is a party to
proceedings with respect to the maintenance of a party to a marriage, then,
except with the leave of the court, the bankrupt party to the marriage is not
entitled to make a submission to the court in connection with any vested bankruptcy
property in relation to the bankrupt party.
(4) The court must not grant leave under subsection (3)
unless the court is satisfied that there are exceptional circumstances.
(5) If:
(a) an application is made for an
order under this section in proceedings between the parties to a marriage with
respect to the maintenance of a party to the marriage; and
(b) either of the following
subparagraphs apply to a party to the marriage (the debtor party):
(i) when the application
was made, the party was a debtor subject to a personal insolvency agreement; or
(ii) after the application
was made but before it is finally determined, the party becomes a debtor
subject to a personal insolvency agreement; and
(c) the trustee of the agreement
applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the debtor party’s creditors may be affected by the making of an
order under this section in the proceedings;
the court must join the trustee of the agreement as a
party to the proceedings.
(6) If the trustee of a personal insolvency
agreement is a party to proceedings with respect to the maintenance of a party
to a marriage, then, except with the leave of the court, the party to the
marriage who is the debtor subject to the agreement is not entitled to make a
submission to the court in connection with any property subject to the
agreement.
(7) The court must not grant leave under subsection (6)
unless the court is satisfied that there are exceptional circumstances.
(8) For the purposes of subsections (2)
and (5), an application for an order under this section is taken to be finally
determined when:
(a) the application is withdrawn or
dismissed; or
(b) an order (other than an interim
order) is made as a result of the application.
75
Matters to be taken into consideration in relation to spousal maintenance
(1) In exercising jurisdiction under section 74,
the court shall take into account only the matters referred to in subsection (2).
(2) The
matters to be so taken into account are:
(a) the age and state of health of
each of the parties; and
(b) the income, property and financial
resources of each of the parties and the physical and mental capacity of each
of them for appropriate gainful employment; and
(c) whether either party has the care
or control of a child of the marriage who has not attained the age of 18 years;
and
(d) commitments of each of the parties
that are necessary to enable the party to support:
(i) himself or herself;
and
(ii) a child or another
person that the party has a duty to maintain; and
(e) the responsibilities of either
party to support any other person; and
(f) subject to subsection (3),
the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the
Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation
fund or scheme, whether the fund or scheme was established, or operates, within
or outside Australia;
and the rate of any such
pension, allowance or benefit being paid to either party; and
(g) where the parties have separated
or divorced, a standard of living that in all the circumstances is reasonable;
and
(h) the extent to which the payment of
maintenance to the party whose maintenance is under consideration would
increase the earning capacity of that party by enabling that party to undertake
a course of education or training or to establish himself or herself in a
business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on
the ability of a creditor of a party to recover the creditor’s debt, so far as
that effect is relevant; and
(j) the extent to which the party
whose maintenance is under consideration has contributed to the income, earning
capacity, property and financial resources of the other party; and
(k) the duration of the marriage and
the extent to which it has affected the earning capacity of the party whose
maintenance is under consideration; and
(l) the need to protect a party who
wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with
another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or
proposed to be made under section 79 in relation to:
(i) the property of the parties;
or
(ii) vested bankruptcy
property in relation to a bankrupt party; and
(naa) the terms of any order or
declaration made, or proposed to be made, under Part VIIIAB in relation
to:
(i) a party to the
marriage; or
(ii) a person who is a
party to a de facto relationship with a party to the marriage; or
(iii) the property of a
person covered by subparagraph (i) and of a person covered by
subparagraph (ii), or of either of them; or
(iv) vested bankruptcy
property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child
Support (Assessment) Act 1989 that a party to the marriage has provided, is
to provide, or might be liable to provide in the future, for a child of the
marriage; and
(o) any fact or circumstance which, in
the opinion of the court, the justice of the case requires to be taken into
account; and
(p) the
terms of any financial agreement that is binding on the parties to the
marriage; and
(q) the terms of any Part VIIIAB
financial agreement that is binding on a party to the marriage.
(3) In exercising its jurisdiction under
section 74, a court shall disregard any entitlement of the party whose
maintenance is under consideration to an income tested pension, allowance or
benefit.
(4) In this section:
party means a party to the marriage
concerned.
77
Urgent spousal maintenance cases
Where, in proceedings with respect to
the maintenance of a party to a marriage, it appears to the court that the
party is in immediate need of financial assistance, but it is not practicable
in the circumstances to determine immediately what order, if any, should be
made, the court may order the payment, pending the disposal of the proceedings,
of such periodic sum or other sums as the court considers reasonable.
77A
Specification in orders of payments etc. for spouse maintenance purposes
(1) Where:
(a) a court makes an order under this
Act (whether or not the order is made in proceedings in relation to the
maintenance of a party to a marriage, is made by consent or varies an earlier
order), and the order has the effect of requiring:
(i) payment of a lump sum,
whether in one amount or by instalments; or
(ii) the transfer or
settlement of property; and
(b) the purpose, or one of the
purposes, of the payment, transfer or settlement is to make provision for the
maintenance of a party to a marriage;
the court shall:
(c) express the order to be an order
to which this section applies; and
(d) specify the portion of the
payment, or the value of the portion of the property, attributable to the
provision of maintenance for the party.
(2) Where:
(a) a court makes an order of a kind
referred to in paragraph (1)(a); and
(b) the order:
(i) is not expressed to be
an order to which this section applies; or
(ii) is expressed to be an
order to which this section applies, but does not comply with paragraph (1)(d);
any payment, transfer or settlement of a kind referred to
in paragraph (1)(a), that the order has the effect of requiring, shall be
taken not to make provision for the maintenance of a party to the relevant
marriage.
78
Declaration of interests in property
(1) In proceedings between the parties to a
marriage with respect to existing title or rights in respect of property, the
court may declare the title or rights, if any, that a party has in respect of
the property.
(2) Where a court makes a declaration under subsection (1),
it may make consequential orders to give effect to the declaration, including
orders as to sale or partition and interim or permanent orders as to
possession.
79
Alteration of property interests
(1) In property settlement proceedings, the
court may make such order as it considers appropriate:
(a) in the case of proceedings with
respect to the property of the parties to the marriage or either of
them—altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with
respect to the vested bankruptcy property in relation to a bankrupt party to
the marriage—altering the interests of the bankruptcy trustee in the vested
bankruptcy property;
including:
(c) an order for a settlement of
property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the
parties to the marriage; or
(ii) the relevant bankruptcy
trustee (if any);
to make, for the benefit of
either or both of the parties to the marriage or a child of the marriage, such
settlement or transfer of property as the court determines.
(1A) An order made under subsection (1) in property
settlement proceedings may, after the death of a party to the marriage, be
enforced on behalf of, or against, as the case may be, the estate of the
deceased party.
(1B) The court may adjourn property settlement
proceedings, except where the parties to the marriage are:
(a) parties to concurrent, pending or
completed divorce or validity of marriage proceedings; or
(ba) parties to a marriage who have
divorced under the law of an overseas country, where that divorce is recognised
as valid in Australia under section 104; or
(bb) parties to a marriage that has
been annulled under the law of an overseas country, where that annulment is
recognised as valid in Australia under section 104; or
(c) parties to a marriage who have
been granted a legal separation under the law of an overseas country, where
that legal separation is recognized as valid in Australia under section 104;
on such terms and conditions as it considers appropriate,
for such period as it considers necessary to enable the parties to the marriage
to consider the likely effects (if any) of an order under this section on the
marriage or the children of the marriage, but nothing in this subsection shall
be taken to limit any other power of the court to adjourn such proceedings.
(1C) Where the period for which a court has
adjourned property settlement proceedings as provided by subsection (1B)
has not expired and:
(a) divorce or validity of marriage
proceedings are instituted by one or both of the parties to the marriage; or
(ba) the parties to the marriage have divorced
under the law of an overseas country and the divorce is recognised as valid in Australia
under section 104; or
(bb) the marriage is annulled under the
law of an overseas country and the annulment is recognised as valid in Australia
under section 104; or
(c) the parties to the marriage are
granted a legal separation under the law of an overseas country and the legal
separation is recognized as valid in Australia under section 104;
a party to the first‑mentioned proceedings may apply
to the court for the hearing of those proceedings to be continued.
(2) The court shall not make an order under
this section unless it is satisfied that, in all the circumstances, it is just
and equitable to make the order.
(4) In considering what order (if any) should
be made under this section in property settlement proceedings, the court shall
take into account:
(a) the financial contribution made
directly or indirectly by or on behalf of a party to the marriage or a child of
the marriage to the acquisition, conservation or improvement of any of the
property of the parties to the marriage or either of them, or otherwise in
relation to any of that last‑mentioned property, whether or not that last‑mentioned
property has, since the making of the contribution, ceased to be the property
of the parties to the marriage or either of them; and
(b) the contribution (other than a
financial contribution) made directly or indirectly by or on behalf of a party
to the marriage or a child of the marriage to the acquisition, conservation or
improvement of any of the property of the parties to the marriage or either of
them, or otherwise in relation to any of that last‑mentioned property,
whether or not that last‑mentioned property has, since the making of the
contribution, ceased to be the property of the parties to the marriage or
either of them; and
(c) the contribution made by a party
to the marriage to the welfare of the family constituted by the parties to the
marriage and any children of the marriage, including any contribution made in
the capacity of homemaker or parent; and
(d) the effect of any proposed order
upon the earning capacity of either party to the marriage; and
(e) the matters referred to in
subsection 75(2) so far as they are relevant; and
(f) any other order made under this
Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child
Support (Assessment) Act 1989 that a party to the marriage has provided, is
to provide, or might be liable to provide in the future, for a child of the
marriage.
(5) Without limiting the power of any court
to grant an adjournment in proceedings under this Act, where, in property
settlement proceedings, a court is of the opinion:
(a) that there is likely to be a
significant change in the financial circumstances of the parties to the
marriage or either of them and that, having regard to the time when that change
is likely to take place, it is reasonable to adjourn the proceedings; and
(b) that an order that the court could
make with respect to:
(i) the property of the
parties to the marriage or either of them; or
(ii) the vested bankruptcy
property in relation to a bankrupt party to the marriage;
if that significant change in
financial circumstances occurs is more likely to do justice as between the
parties to the marriage than an order that the court could make immediately
with respect to:
(iii) the property of the
parties to the marriage or either of them; or
(iv) the vested bankruptcy
property in relation to a bankrupt party to the marriage;
the court may, if so requested by either party to the
marriage or the relevant bankruptcy trustee (if any), adjourn the proceedings
until such time, before the expiration of a period specified by the court, as
that party to the marriage or the relevant bankruptcy trustee, as the case may
be, applies for the proceedings to be determined, but nothing in this
subsection requires the court to adjourn any proceedings in any particular
circumstances.
(6) Where a court proposes to adjourn
proceedings as provided by subsection (5), the court may, before so
adjourning the proceedings, make such interim order or orders or such other
order or orders (if any) as it considers appropriate with respect to:
(a) any of the property of the parties
to the marriage or of either of them; or
(b) any of the vested bankruptcy
property in relation to a bankrupt party to the marriage.
(7) The court may, in forming an opinion for
the purposes of subsection (5) as to whether there is likely to be a
significant change in the financial circumstances of either or both of the
parties to the marriage, have regard to any change in the financial
circumstances of a party to the marriage that may occur by reason that the
party to the marriage:
(a) is a contributor to a superannuation
fund or scheme, or participates in any scheme or arrangement that is in the
nature of a superannuation scheme; or
(b) may
become entitled to property as the result of the exercise in his or her favour,
by the trustee of a discretionary trust, of a power to distribute trust
property;
but nothing in this subsection shall be taken to limit the
circumstances in which the court may form the opinion that there is likely to
be a significant change in the financial circumstances of a party to the
marriage.
(8) Where,
before property settlement proceedings are completed, a party to the marriage
dies:
(a) the proceedings may be continued
by or against, as the case may be, the legal personal representative of the
deceased party and the applicable Rules of Court may make provision in relation
to the substitution of the legal personal representative as a party to the
proceedings;
(b) if the court is of the opinion:
(i) that it would have
made an order with respect to property if the deceased party had not died; and
(ii) that it is still
appropriate to make an order with respect to property;
the court may make such order as
it considers appropriate with respect to:
(iii) any of the property of
the parties to the marriage or either of them; or
(iv) any of the vested
bankruptcy property in relation to a bankrupt party to the marriage; and
(c) an order made by the court
pursuant to paragraph (b) may be enforced on behalf of, or against, as the
case may be, the estate of the deceased party.
(9) The Family Court, or a Family Court of a
State, shall not make an order under this section in property settlement
proceedings (other than an order until further order or an order made with the
consent of all the parties to the proceedings) unless:
(a) the parties to the proceedings
have attended a conference in relation to the matter to which the proceedings
relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar
or Deputy Registrar of the Family Court of that State, as the case may be;
(b) the court is satisfied that,
having regard to the need to make an order urgently, or to any other special
circumstance, it is appropriate to make the order notwithstanding that the
parties to the proceedings have not attended a conference as mentioned in paragraph (a);
or
(c) the court is satisfied that it is
not practicable to require the parties to the proceedings to attend a
conference as mentioned in paragraph (a).
(10) The following are entitled to become a
party to proceedings in which an application is made for an order under this
section by a party to a marriage (the subject marriage):
(a) a creditor of a party to the
proceedings if the creditor may not be able to recover his or her debt if the
order were made;
(aa) a person:
(i) who is a party to a de facto
relationship with a party to the subject marriage; and
(ii) who could apply, or
has an application pending, for an order under section 90SM, or a
declaration under section 90SL, in relation to the de facto
relationship;
(ab) a person who is a party to a
Part VIIIAB financial agreement (that is binding on the person) with a
party to the subject marriage;
(b) any other person whose interests
would be affected by the making of the order.
(10A) Subsection (10) does not apply to a
creditor of a party to the proceedings:
(a) if the party is a bankrupt—to the
extent to which the debt is a provable debt (within the meaning of the Bankruptcy
Act 1966); or
(b) if the party is a debtor subject
to a personal insolvency agreement—to the extent to which the debt is covered
by the personal insolvency agreement.
(10B) If a person becomes a party to proceedings
under this section because of paragraph (10)(aa), the person may, in the
proceedings, apply for:
(a) an order under section 90SM;
or
(b) a declaration under
section 90SL;
in relation to the de facto relationship described in
that paragraph.
(11) If:
(a) an
application is made for an order under this section in proceedings between the
parties to a marriage with respect to the property of the parties to the
marriage or either of them; and
(b) either of the following
subparagraphs apply to a party to the marriage:
(i) when the application
was made, the party was a bankrupt;
(ii) after the application
was made but before it is finally determined, the party became a bankrupt; and
(c) the bankruptcy trustee applies to
the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the bankrupt’s creditors may be affected by the making of an order
under this section in the proceedings;
the court must join the bankruptcy trustee as a party to
the proceedings.
(12) If a bankruptcy trustee is a party to
property settlement proceedings, then, except with the leave of the court, the
bankrupt party to the marriage is not entitled to make a submission to the
court in connection with any vested bankruptcy property in relation to the
bankrupt party.
(13) The court must not grant leave under subsection (12)
unless the court is satisfied that there are exceptional circumstances.
(14) If:
(a) an application is made for an
order under this section in proceedings between the parties to a marriage with
respect to the property of the parties to the marriage or either of them; and
(b) either of the following
subparagraphs apply to a party to the marriage (the debtor party):
(i) when the application
was made, the party was a debtor subject to a personal insolvency agreement; or
(ii) after the application
was made but before it is finally determined, the party becomes a debtor subject
to a personal insolvency agreement; and
(c) the trustee of the agreement
applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the debtor party’s creditors may be affected by the making of an
order under this section in the proceedings;
the court must join the trustee of the agreement as a
party to the proceedings.
(15) If the trustee of a personal insolvency
agreement is a party to property settlement proceedings, then, except with the
leave of the court, the party to the marriage who is the debtor subject to the
agreement is not entitled to make a submission to the court in connection with
any property subject to the agreement.
(16) The court must not grant leave under subsection (15)
unless the court is satisfied that there are exceptional circumstances.
(17) For the purposes of subsections (11)
and (14), an application for an order under this section is taken to be finally
determined when:
(a) the application is withdrawn or
dismissed; or
(b) an order (other than an interim
order) is made as a result of the application.
79A
Setting aside of orders altering property interests
(1) Where, on application by a person
affected by an order made by a court under section 79 in property settlement
proceedings, the court is satisfied that:
(a) there has been a miscarriage of
justice by reason of fraud, duress, suppression of evidence (including failure
to disclose relevant information), the giving of false evidence or any other
circumstance; or
(b) in the circumstances that have
arisen since the order was made it is impracticable for the order to be carried
out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying
out an obligation imposed on the person by the order and, in the circumstances
that have arisen as a result of that default, it is just and equitable to vary
the order or to set the order aside and make another order in substitution for
the order; or
(d) in the circumstances that have
arisen since the making of the order, being circumstances of an exceptional
nature relating to the care, welfare and development of a child of the
marriage, the child or, where the applicant has caring responsibility for the
child (as defined in subsection (1AA)), the applicant, will suffer
hardship if the court does not vary the order or set the order aside and make
another order in substitution for the order; or
(e) a proceeds of crime order has been
made covering property of the parties to the marriage or either of them, or a
proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set
the order aside and, if it considers appropriate, make another order under
section 79 in substitution for the order so set aside.
(1A) A court may, on application by a person
affected by an order made by a court under section 79 in property
settlement proceedings, and with the consent of all the parties to the
proceedings in which the order was made, vary the order or set the order aside
and, if it considers appropriate, make another order under section 79 in
substitution for the order so set aside.
(1AA) For the
purposes of paragraph (1)(d), a person has caring responsibility
for a child if:
(a) the person is a parent of the
child with whom the child lives; or
(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.
(1B) An order varied or made under subsection (1)
or (1A) may, after the death of a party to the marriage in which the order was
so varied or made, be enforced on behalf of, or against, as the case may be,
the estate of the deceased party.
(1C) Where, before proceedings under this
section in relation to an order made under section 79 are completed, a
party to the marriage dies:
(a) the proceedings may be continued
by or against, as the case may be, the legal personal representative of the
deceased party and the applicable Rules of Court may make provision in relation
to the substitution of the legal personal representative as a party to the
proceedings;
(b) if the court is of the opinion:
(i) that it would have
exercised its powers under subsection (1) or (1A) in relation to the order
if the deceased party had not died; and
(ii) that it is still
appropriate to exercise its powers under subsection (1) or (1A) in
relation to the order;
the court may vary the order,
set the order aside, or set the order aside and make another order under
section 79 in substitution for the order so set aside; and
(c) an order varied or made by the
court pursuant to paragraph (b) may be enforced on behalf of, or against,
as the case may be, the estate of the deceased party.
(2) In the exercise of its powers under subsection (1),
(1A) or (1C), a court shall have regard to the interests of, and shall make any
order proper for the protection of, a bona fide purchaser or other
person interested.
(3) In this section, a reference to an order
made by a court under section 79 includes a reference to an order made by
a court under section 86 of the repealed Act.
(4) For the purposes of this section, a
creditor of a party to the proceedings in which the order under section 79
was made is taken to be a person whose interests are affected by the order if
the creditor may not be able to recover his or her debt because the order has
been made.
(5) For the
purposes of this section, if:
(a) an order is made by a court under
section 79 in proceedings with respect to the property of the parties to a
marriage or either of them; and
(b) either of the following
subparagraphs apply to a party to the marriage:
(i) when the order was
made, the party was a bankrupt;
(ii) after the order was
made, the party became a bankrupt;
the bankruptcy trustee is taken to be a person whose
interests are affected by the order.
(6) For the purposes of this section, if:
(a) a party to a marriage is a
bankrupt; and
(b) an order is made by a court under
section 79 in proceedings with respect to the vested bankruptcy property
in relation to the bankrupt party;
the bankruptcy trustee is taken to be a person whose
interests are affected by the order.
(7) For the purposes of this section, if:
(a) an order is made by a court under
section 79 in proceedings with respect to the property of the parties to a
marriage or either of them; and
(b) either of the following
subparagraphs apply to a party to the marriage:
(i) when the order was
made, the party was a debtor subject to a personal insolvency agreement;
(ii) after the order was
made, the party became a debtor subject to a personal insolvency agreement;
the trustee of the agreement is taken to be a person whose
interests are affected by the order.
79B
Notification of proceeds of crime orders etc.
(1) If:
(a) a person makes an application for
an order, under this Part, with respect to:
(i) the property of the
parties to a marriage or either of them; or
(ii) the maintenance of a
party to a marriage; and
(b) the person knows that the property
of the parties to the marriage or either of them is covered by:
(i) a proceeds of crime
order; or
(ii) a forfeiture
application;
the person must:
(c) disclose in the application the
proceeds of crime order or forfeiture application; and
(d) give to the court a sealed copy of
that order or application.
(2) A person who does not comply with subsection (1)
commits an offence punishable, on conviction, by a fine not exceeding 50
penalty units.
(3) If:
(a) a person is a party to property
settlement or spousal maintenance proceedings under this Part; and
(b) the person is notified by the DPP
that the property of the parties to the marriage or either of them is covered
by:
(i) a proceeds of crime
order; or
(iii) a forfeiture
application;
the person must notify the Registry Manager in
writing of the proceeds of crime order or forfeiture application.
(4) A person who does not comply with subsection (3)
commits an offence punishable, on conviction, by a fine not exceeding 50
penalty units.
79C
Court to stay property or spousal maintenance proceedings affected by proceeds
of crime orders etc.
(1) A court in which property settlement or spousal maintenance proceedings are
pending must stay those proceedings if notified under section 79B
in relation to the proceedings.
(1A) The
court may, before staying proceedings under subsection (1), invite or
require the DPP to make submissions relating to staying the proceedings.
(2) A court must, on the application of the
DPP, stay property settlement or spousal maintenance proceedings under this
Part if the property of the parties to the marriage or either of them is
covered by:
(a) a proceeds of crime order; or
(b) a forfeiture application.
(3) A court must notify the DPP if the court
stays property settlement or spousal maintenance proceedings under subsection (1)
or (2).
(4) The DPP must notify the Registry Manager
if:
(a) a proceeds of crime order ceases
to be in force; or
(b) a forfeiture application is
finally determined.
(5) For the purposes of subsection (4),
a forfeiture application is taken to be finally determined when:
(a) the application is withdrawn; or
(b) if the application is
successful—the resulting forfeiture order comes into force; or
(c) if the application is
unsuccessful—the time within which an appeal can be made has expired and any
appeals have been finally determined or otherwise disposed of.
79D
Lifting a stay
(1) A court that stayed the property
settlement or spousal maintenance proceedings under section 79C must
wholly or partially lift the stay if:
(a) either party to the proceedings
makes an application for the stay to be lifted and the DPP consents to such an
application; or
(b) the DPP makes an application for
the stay to be lifted.
(2) A court that stayed the property
settlement or spousal maintenance proceedings under section 79C may, on
its own motion, wholly or partially lift the stay if the DPP consents to such a
motion.
(3) Giving the Registry Manager written
notice of the DPP’s consent under this section is taken to be the giving of
that consent, unless the court requires the DPP to appear in the proceedings.
The notice may be given by the DPP or by a party to the proceedings.
79E Intervention by DPP
(1) The DPP may intervene in any property
settlement or spousal maintenance proceedings in relation to which a court is
notified under section 79B, or in any proceedings under section 79C
or 79D in which the DPP is not already a party.
(2) If the DPP intervenes, the DPP is taken
to be a party to the proceedings with all the rights, duties and liabilities of
a party.
79F
Notifying third parties about application
The applicable Rules of Court may
specify the circumstances in which a person who:
(a) applies for an order under this
Part; or
(b) is a party to proceedings for an
order under this Part;
is to give notice of the application to a person who is
not a party to the proceedings.
Note: The applicable Rules of Court may, for
example, require notice to be given to persons referred to in subsection 79(10)
whose interests could be affected by proceedings for an order under
section 79.
79G
Notifying bankruptcy trustee etc. about application under section 74, 78,
79 or 79A
(1) The applicable Rules of Court may make
provision for a bankrupt who becomes a party to a proceeding for an application
under section 74, 78, 79 or 79A to give notice of the application to the
bankruptcy trustee.
(2) The applicable Rules of Court may make
provision for a debtor subject to a personal insolvency agreement who becomes a
party to a proceeding for an application under section 74, 78, 79 or 79A
to give notice of the application to the trustee of the agreement.
79H
Notifying court about bankruptcy etc.
Bankruptcy
(1) The applicable Rules of Court may make
provision for a person who:
(a) is a party to a marriage; and
(b) is a party to a proceeding for an
application under section 74, 78, 79 or 79A; and
(c) before that application is finally
determined, becomes a bankrupt;
to notify a court exercising jurisdiction under this Act
that the person has become a bankrupt.
Debtor subject to a personal insolvency agreement
(2) The applicable Rules of Court may make
provision for a person who:
(a) is a party to a marriage; and
(b) is a party to a proceeding for an
application under section 74, 78, 79 or 79A; and
(c) before that application is finally
determined, becomes a debtor subject to a personal insolvency agreement;
to notify a court exercising jurisdiction under this Act
that the person has become a debtor subject to a personal insolvency
agreement.
Institution of proceeding under the Bankruptcy Act 1966
(3) The applicable Rules of Court may make
provision for a person who:
(a) is a party to a marriage; and
(b) is a party to a proceeding for an
application under section 74, 78, 79 or 79A; and
(c) before that application is finally
determined, becomes a party to a proceeding before the Federal Court or the
Federal Magistrates Court under the Bankruptcy Act 1966 that relates to:
(i) the bankruptcy of the
person; or
(ii) the person’s capacity
as a debtor subject to a personal insolvency agreement;
to notify a court exercising jurisdiction under this Act
of the institution of the proceeding under the Bankruptcy Act 1966.
(4) The applicable Rules of Court may make
provision for a person who:
(a) is the bankruptcy trustee of a
bankrupt party to a marriage; and
(b) applies under section 139A of
the Bankruptcy Act 1966 for an order under Division 4A of Part VI
of that Act;
to notify a court exercising jurisdiction under this Act
of the making of the application.
When application finally determined
(5) For the purposes of this section, an
application for an order under section 74, 79 or 79A is taken to be
finally determined when:
(a) the application is withdrawn or
dismissed; or
(b) an order (other than an interim
order) is made as a result of the application.
(6) For the purposes of this section, an
application for a declaration under section 78 is taken to be finally
determined when:
(a) the application is withdrawn or
dismissed; or
(b) a declaration is made as a result
of the application.
79J
Notifying non‑bankrupt spouse about application under section 139A
of the Bankruptcy Act 1966
The applicable Rules of Court may make
provision for a person who:
(a) is the bankruptcy trustee of a
bankrupt party to a marriage; and
(b) applies under section 139A of
the Bankruptcy Act 1966 for an order under Division 4A of Part VI
of that Act in relation to an entity (other than the other party to the
marriage);
to notify the other party to the marriage of the making of
the application.
80
General powers of court
(1) The court, in exercising its powers under
this Part, may do any or all of the following:
(a) order payment of a lump sum,
whether in one amount or by instalments;
(b) order payment of a weekly, monthly,
yearly or other periodic sum;
(ba) order that a specified transfer or
settlement of property be made by way of maintenance for a party to a marriage;
(c) order that payment of any sum
ordered to be paid be wholly or partly secured in such manner as the court
directs;
(d) order that any necessary deed or
instrument be executed and that such documents of title be produced or such
other things be done as are necessary to enable an order to be carried out
effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made
direct to a party to the marriage, to a trustee to be appointed or into court
or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order
pending the disposal of proceedings or an order for a fixed term or for a life
or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or
not of the same nature as those mentioned in the preceding paragraphs of this
section), which it thinks it is necessary to make to do justice; and
(l) subject to this Act and the
applicable Rules of Court, make an order under this Part at any time before or
after the making of a decree under another Part.
(2) The making of an order of a kind referred
to in paragraph (1)(ba), or of any other order under this Part, in
relation to the maintenance of a party to a marriage does not prevent a court
from making a subsequent order in relation to the maintenance of the party.
(3) The applicable Rules of Court may make
provision with respect to the making of orders under this Part in relation to
the maintenance of parties to marriages (whether as to their form or otherwise)
for the purpose of facilitating their enforcement and the collection of
maintenance payable under them.
(4) If a bankruptcy trustee is a party to a
proceeding before the court, the court may make an order under paragraph (1)(d)
directed to the bankrupt.
(5) If the trustee of a personal insolvency
agreement is a party to a proceeding before the court, the court may make an
order under paragraph (1)(d) directed to the debtor subject to the
agreement.
(6) Subsections (4) and (5) do not limit
paragraph (1)(d).
81
Duty of court to end financial relations
In proceedings under this Part, other
than proceedings under section 78 or proceedings with respect to
maintenance payable during the subsistence of a marriage, the court shall, as
far as practicable, make such orders as will finally determine the financial
relationships between the parties to the marriage and avoid further proceedings
between them.
82
Cessation of spousal maintenance orders
(1) An order with respect to the maintenance
of a party to a marriage ceases to have effect upon the death of the party.
(2) Subject to subsection (3), an order
with respect to the maintenance of a party to a marriage ceases to have effect
upon the death of the person liable to make payments under the order.
(3) Subsection (2) does not apply in
relation to an order made before the date of commencement of section 38 of
the Family Law Amendment Act 1983 if the order is expressed to continue
in force throughout the life of the person for whose benefit the order was made
or for a period that had not expired at the time of the death of the person
liable to make payments under the order and, in that case, the order is binding
upon the legal personal representative of the deceased person.
(4) An order with respect to the maintenance
of a party to a marriage ceases to have effect upon the re‑marriage of
the party unless in special circumstances a court having jurisdiction under
this Act otherwise orders.
(6) Where a re‑marriage referred to in subsection (4)
takes place, it is the duty of the person for whose benefit the order was made
to inform without delay the person liable to make payments under the order of
the date of the re‑marriage.
(7) Any moneys paid in respect of a period
after the event referred to in subsection (4) may be recovered in a court
having jurisdiction under this Act.
(8) Nothing in this section affects the
recovery of arrears due under an order at the time when the order ceased to
have effect.
83
Modification of spousal maintenance orders
(1) If there is in force an order (whether
made before or after the commencement of this Act) with respect to the
maintenance of a party to a marriage:
(a) made by the court; or
(b) made
by another court and registered in the first‑mentioned court in
accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is
any just cause for so doing;
(d) suspend its operation wholly or in
part and either until further order or until a fixed time or the happening of some
future event;
(e) revive wholly or in part an order
suspended under paragraph (d); or
(f) subject to subsection (2),
vary the order so as to increase or decrease any amount ordered to be paid or
in any other manner.
(1A) The court’s jurisdiction under subsection (1)
may be exercised:
(a) in any case—in proceedings with
respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to
the marriage—on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a
debtor subject to a personal insolvency agreement—on the application of the
trustee of the agreement.
(2) The court
shall not make an order increasing or decreasing an amount ordered to be paid
by an order unless it is satisfied:
(a) that, since the order was made or
last varied:
(i) the circumstances of a
person for whose benefit the order was made have so changed (including the
person entering into a stable and continuing de facto relationship);
(ii) the circumstances of
the person liable to make payments under the order have so changed; or
(iii) in
the case of an order that operates in favour of, or is binding on, a legal
personal representative—the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or
last varied, the cost of living has changed to such an extent as to justify its
so doing;
(ba) in a case where the order was made
by consent—that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld
from the court that made the order or from a court that varied the order or
material evidence previously given before such a court was false.
(3) Subsection (2) does not prevent the
court from making an order varying an order made before the date of commencement
of this Act if the first‑mentioned order is made for the purpose of
giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b),
the court shall have regard to any changes that have occurred in the Consumer
Price Index published by the Australian Statistician.
(5) The court shall not, in considering the
variation of an order, have regard to a change in the cost of living unless at
least 12 months have elapsed since the order was made or was last varied having
regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba),
the court shall have regard to any payments, and any transfer or settlement of
property, previously made by a party to the marriage, or by the bankruptcy
trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit
of the other party.
(6) An order decreasing the amount of a
periodic sum payable under an order or discharging an order may be expressed to
be retrospective to such date as the court considers appropriate.
(6A) Where, as provided by subsection (6),
an order decreasing the amount of a periodic sum payable under an order is
expressed to be retrospective to a specified date, any moneys paid under the
second‑mentioned order since the specified date, being moneys that would
not have been required to be paid under the second‑mentioned order as
varied by the first‑mentioned order, may be recovered in a court having
jurisdiction under this Act.
(6B) Where, as provided by subsection (6),
an order discharging an order is expressed to be retrospective to a specified
date, any moneys paid under the second‑mentioned order since the
specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the
court shall have regard to the provisions of sections 72 and 75.
(8) The discharge of an order does not affect
the recovery of arrears due under the order at the time as at which the
discharge takes effect.
85A
Ante‑nuptial and post‑nuptial settlements
(1) The court may, in proceedings under this
Act, make such order as the court considers just and equitable with respect to
the application, for the benefit of all or any of the parties to, and the
children of, the marriage, of the whole or part of property dealt with by ante‑nuptial
or post‑nuptial settlements made in relation to the marriage.
(2) In considering what order (if any) should
be made under subsection (1), the court shall take into account the
matters referred to in subsection 79(4) so far as they are relevant.
(3) A court cannot make an order under this
section in respect of matters that are included in a financial agreement.
86A
Certain maintenance agreements ineffective
A maintenance agreement made after the
commencement of this section that is not a financial agreement does not have
any effect and is not enforceable in any way.
86
Registered maintenance agreements
(1) A maintenance agreement other than an
agreement to which section 87 applies may be registered, as prescribed by
the applicable Rules of Court, in any court having jurisdiction under this Act.
(1A) A maintenance agreement made after the
commencement of this subsection cannot be registered.
(2) Section 66S applies in relation to
the variation of a maintenance agreement registered under subsection (1),
in so far as the agreement makes provision for the maintenance of a child of
the relevant marriage, as if the agreement were an order made by consent under
Part VII by the court in which the agreement is registered.
(2A) Section 83
applies in relation to the variation of a maintenance agreement registered
under subsection (1), in so far as the agreement makes provision for the
maintenance of a party to the relevant marriage, as if the agreement were an
order made by consent under this Act by the court in which the agreement is
registered.
(3) The court in which a maintenance
agreement is registered under subsection (1) may set aside the agreement
if, and only if, the court is satisfied that the concurrence of a party was
obtained by fraud or undue influence or that the parties desire the agreement
to be set aside.
(3A) Where a maintenance agreement has been
registered under subsection (1), then:
(a) unless the agreement otherwise
provides, the agreement (other than a provision in the agreement providing for
the payment by way of maintenance of a periodic sum) continues to operate
notwithstanding the death of a party to the agreement and operates in favour
of, and is binding on, the legal personal representative of that party; and
(b) if the agreement so provides, a
provision in the agreement providing for the payment to a person by way of
maintenance of a periodic sum continues to operate notwithstanding the death of
any party to the agreement who is liable to make payments pursuant to that
provision and is binding on the legal personal representative of that party
but, notwithstanding any provision in the agreement, does not continue to
operate after the death of the person who is entitled to receive those
payments.
(3B) Where:
(a) a maintenance agreement is, at any
time, registered under subsection (1); and
(b) the maintenance agreement makes
provision for the maintenance of a child; and
(c) an application could properly be
made, at that time, under the Child Support (Assessment) Act 1989 by one
of the parties to the agreement for the other party to the agreement to be
assessed in respect of the costs of the child (whether or not such an
application has in fact been made by the party or by another person);
the maintenance agreement, so far as it makes provision
for the maintenance of the child, has no effect and is not enforceable in any
way.
(4) Subject to section 89, this section
does not apply to overseas maintenance agreements.
87 Operation
of maintenance agreements entered into in substitution for rights under Act [see Note 2]
(1) Subject to this section, a maintenance
agreement may make provision to the effect that the agreement shall operate, in
relation to the financial matters dealt within the agreement, in substitution
for any rights of the parties to the agreement under this Part.
(1A) Subsection (1) does not apply to a
maintenance agreement made after the commencement of this subsection.
(2) Where a maintenance agreement makes
provision as mentioned in subsection (1), the maintenance agreement has no
effect, and is not enforceable in any way, unless it has been approved by the
court.
(3) In proceedings for the approval of a
maintenance agreement, if the court is satisfied that the provisions of the
agreement with respect to financial matters are proper, the court shall, by
order, approve the agreement, but if the court is not so satisfied, it shall,
by order, refuse to approve the agreement.
(4) Where a maintenance agreement that makes
provision as mentioned in subsection (1) is approved by the court:
(a) any order having effect under this
Part or any order made under Part VIII of the repealed Act and continued
in effect by virtue of paragraph 3(2)(c) ceases to have effect in so far as it
relates to the financial matters dealt with in the agreement and, whether or
not the approval of the agreement is revoked, has no further effect; and
(b) subject to subsections (4A)
to (4C) (inclusive), no court having jurisdiction under this Act may make an
order (other than an order under this section or an order in connection with
the enforcement of the agreement) with respect to those financial matters
unless the approval of the agreement is revoked.
(4A) The approval, after the commencement of
this subsection, of a maintenance agreement under this section does not exclude
or limit the power of a court having jurisdiction under this Act to make an
order in relation to the maintenance of a party to the relevant marriage if the
court is satisfied that, at the time the agreement was approved, the
circumstances of the party were such that, taking into account the terms and
effect of the agreement, the party would have been unable to support himself or
herself without an income tested pension, allowance or benefit.
(4B) Where subsection (4A) applies in
relation to an approved maintenance agreement, section 83 applies in
relation to the variation of the agreement, in so far as the agreement makes
provision for the maintenance of a party to the marriage, as if the agreement
were an order made by consent under this Act by a court in which the agreement
is registered or deemed to be registered.
(4C) The approval, whether before or after the
commencement of this subsection, of a maintenance agreement under this section
does not exclude or limit the power of a court having jurisdiction under Part VII
to make any order under that Part in relation to a child of the relevant
marriage and, where the agreement makes provision for the maintenance of a child
of the marriage, section 66S applies in relation to the variation of the
agreement, in so far as it makes that provision, as if the agreement were an
order made by consent under that Part by a court in which the agreement is
registered or deemed to be registered.
(4D) Where:
(a) a maintenance agreement that makes
provision as mentioned in subsection (1) is, at any time, approved by the
court; and
(b) the maintenance agreement makes
provision for the maintenance of a child; and
(c) an application could properly be
made, at that time, under the Child Support (Assessment) Act 1989 by one
of the parties to the agreement for administrative assessment of child support
(within the meaning of that Act) for the child seeking payment of the child
support by the other party to the agreement (whether or not such an application
has in fact been made by the party or by another person);
the maintenance agreement, so far as it makes provision
for the maintenance of the child, has no effect and is not enforceable in any
way.
(5) Notwithstanding any rule of law or
equity, an approved maintenance agreement shall not be taken to be void,
voidable or unenforceable by reason that it makes provision as mentioned in subsection (1).
(6) Where a court has approved a maintenance
agreement, the agreement shall be deemed to be registered in that court.
(7) An agreement that is by virtue of subsection (6)
deemed to be registered in a court may be registered, as prescribed by the
applicable Rules of Court, in another court having jurisdiction under this Act.
(8) A court may, by order, revoke the
approval of a maintenance agreement under this section if, and only if, the
agreement is registered or deemed to be registered in that court and the court
is satisfied that:
(a) the approval was obtained by
fraud;
(b) the parties to the agreement
desire the revocation of the approval;
(c) the agreement is void, voidable or
unenforceable; or
(d) in the circumstances that have
arisen since the agreement was approved it is impracticable for the agreement
to be carried out or impracticable for a part of the agreement to be carried
out.
(9) Where the approval of a maintenance
agreement under this section is revoked by a court:
(a) the agreement ceases, for all
purposes, to be in force; and
(b) the court may, in proceedings for
the revocation of the approval or on application by a party to the agreement or
any other interested person, make such order or orders (including an order for
the transfer of property) as it considers just and equitable for the purpose of
preserving or adjusting the rights of the parties to the agreement and any
other interested persons;
and, in exercising its powers under paragraph (b),
the court shall have regard to the ground on which it revoked the approval of
the agreement.
(10) Where a maintenance agreement has been
approved by a court as provided by this section, then:
(a) unless the agreement otherwise
provides, the agreement (other than a provision in the agreement providing for
the payment by way of maintenance of a periodic sum) continues to operate
notwithstanding the death of a party to the agreement and operates in favour
of, and is binding on, the legal personal representative of that party; and
(b) if the agreement so provides, a
provision in the agreement providing for the payment to a person by way of
maintenance of a periodic sum continues to operate notwithstanding the death of
any party to the agreement who is liable to make payments pursuant to that
provision and is binding on the legal personal representative of that party
but, notwithstanding any provision in the agreement, does not continue to
operate after the death of the person who is entitled to receive those
payments.
(11) Apart from the provision made by subsections (2),
(4A), (4C), (5), (9) and (10), the validity, enforceability and effect of an
approved maintenance agreement shall be determined by the court according to
the principles of law and equity that are applicable in determining the
validity, enforceability and effect of contracts and purported contracts, and,
in proceedings of the kind referred to in subparagraph (ea)(iii) of the
definition of matrimonial cause in subsection 4(1), being
proceedings instituted in a court in which the approved maintenance agreement
is registered or deemed to be registered, the court:
(a) subject to paragraph (b), has
the same powers, may grant the same remedies and shall have the same regard to
the rights of third parties as the High Court has, may grant and is required to
have in proceedings in connection with contracts or purported contracts, being
proceedings in which the High Court has original jurisdiction;
(b) has power to make an order for the
payment, by a party to the agreement to another party to the agreement, of
interest on an amount payable pursuant to the agreement, from the time when the
amount became or becomes due and payable, at a rate not exceeding the rate
prescribed by the Rules of the Court; and
(c) in addition to, or instead of,
making an order or orders pursuant to paragraph (a) or (b), may order that
the agreement, or a specified part of the agreement, be enforced as if it were
an order of the court.
(12) Where the approval of a maintenance
agreement under this section has been revoked, a court shall, in considering
whether, and if so, how, to exercise any powers under this Part, have regard
to:
(a) anything done or omitted to be
done by a party to the agreement pursuant to the agreement;
(b) any change in the circumstances of
a party to the agreement arising out of the doing of any act by a person, or
the failure of a person to do an act, pursuant to the agreement;
(c) any order made by that court or
another court exercising jurisdiction under this Act in connection with the
agreement while the agreement was in force; and
(d) any order made under paragraph (9)(b)
in connection with the revocation of the approval of the agreement.
(15) In this section, approved
maintenance agreement means a maintenance agreement that has been
approved under this section and the approval of which has not been revoked.
(16) Nothing in this Act affects the operation
of an agreement sanctioned under paragraph 87(1)(k) of the repealed Act or the
rights and obligations of a person under such an agreement.
(17) Subject to section 89, this section
does not apply to overseas maintenance agreements.
87A
Specification in maintenance agreements of payments etc. for maintenance
purposes
(1) Where:
(a) a maintenance agreement (whether
or not registered under section 86 or approved under section 87) has
the effect of requiring:
(i) payment of a lump sum,
whether in one amount or by instalments; or
(ii) the transfer or
settlement of property; and
(b) the purpose, or one of the
purposes, of the payment, transfer or settlement is to make provision for the
maintenance of a party to a marriage or a child or children of a marriage;
the agreement shall:
(c) state that the agreement is an
agreement to which this section applies; and
(d) specify:
(i) the person or persons
for whose maintenance provision is made by the payment, transfer or settlement;
and
(ii) the portion of the
payment, or the value of the portion of the property, attributable to the
provision of maintenance for that person or each of those persons, as the case
may be.
(2) Where a
maintenance agreement of a kind referred to in paragraph (1)(a):
(a) does
not state that the agreement is an agreement to which this section applies; or
(b) states
that the agreement is an agreement to which this section applies, but does not
comply with paragraph (1)(d);
any payment, transfer or settlement of a kind referred to
in paragraph (1)(a), that the agreement has the effect of requiring, shall
be taken not to make provision for the maintenance of a party to the relevant
marriage or of a child of the relevant marriage.
88
Enforcement of maintenance agreements
(1) A maintenance agreement that has been
registered, or is deemed to have been registered, in a court may be enforced as
if it were an order of that court.
(2) Subsection (1) does not apply in relation
to maintenance agreements that have been approved under section 87.
89
Overseas maintenance agreements
The regulations may make provision for
and in relation to:
(a) the application of sections 86
and 87, with such additions, exceptions and modifications as are prescribed, to
overseas maintenance agreements; and
(b) the transmission to appropriate
courts or authorities of prescribed overseas jurisdictions of, or of copies of,
maintenance agreements and of agreements for maintenance of ex‑nuptial
children for the purpose of securing the enforcement of those agreements in
those jurisdictions.
89A
Institution of spousal maintenance proceedings by authority or person
The regulations may make provision for
and in relation to the authorizing of a prescribed authority of the
Commonwealth, of a State or of a Territory, or the person for the time being
holding a prescribed office under a law of the Commonwealth, of a State or of a
Territory, in the discretion of the authority or person, to institute and
prosecute proceedings with respect to the maintenance of a party to a marriage,
on behalf of that party.
90
Certain instruments not liable to duty
(1) The following agreements, deeds and other
instruments are not subject to any duty or charge under any law of a State or
Territory or any law of the Commonwealth that applies only to or in relation to
a Territory:
(a) a deed or other instrument
executed by a person for the purposes of, or in accordance with, an order made
under this Part;
(b) a relevant maintenance agreement
that confers a benefit upon a party to, or a child of, the marriage to which
the maintenance agreement relates, to the extent that the maintenance agreement
confers that benefit;
(c) a deed or other instrument
executed by a person for the purposes of, or in accordance with, a relevant
maintenance agreement, being a deed or other instrument that confers a benefit
upon a party to, or a child of, the marriage to which the maintenance agreement
relates, to the extent that the deed or other instrument confers that benefit.
(2) The following maintenance agreements are
relevant maintenance agreements for the purposes of this section:
(a) a registered maintenance agreement
made in connection with the termination of the marriage to which the maintenance
agreement relates by divorce or the annulment of the marriage to which the
maintenance agreement relates;
(b) a registered maintenance agreement
(other than a maintenance agreement referred to in paragraph (a)) made in
contemplation of the termination of the marriage to which the maintenance
agreement relates by divorce or the annulment of the marriage to which the
maintenance agreement relates;
(c) a registered maintenance agreement
(other than a maintenance agreement referred to in paragraph (a) or (b))
made in connection with the breakdown of the marriage to which the maintenance
agreement relates;
(d) an approved maintenance agreement
made in connection with the termination of the marriage to which the
maintenance agreement relates by divorce or the annulment of the marriage to
which the maintenance agreement relates;
(e) an
approved maintenance agreement (other than a maintenance agreement referred to
in paragraph (d)) made in contemplation of the termination of the marriage
to which the maintenance agreement relates by divorce or the annulment of the
marriage to which the maintenance agreement relates;
(f) an approved maintenance agreement
(other than a maintenance agreement referred to in paragraph (d) or (e))
made in connection with the breakdown of the marriage to which the maintenance
agreement relates.
(3) For the purposes of this section, a
maintenance agreement, deed or other instrument that confers an entitlement to
property on a person may be taken to confer a benefit upon the person
notwithstanding that the maintenance agreement, deed or other instrument also
deprives the person of an entitlement to other property of an equal or greater
value.
(4) In this section:
(a) approved maintenance
agreement means a maintenance agreement approved by a court by order
under section 87;
(b) registered maintenance
agreement means a maintenance agreement registered in a court under
section 86 or a maintenance agreement that is registered in a court under
regulations made pursuant to section 89; and
(c) a reference to the marriage to
which a maintenance agreement relates is a reference to the marriage the
parties to which are parties to the maintenance agreement.
Part VIIIAA—Orders and injunctions binding third parties
Division 1—Preliminary
Subdivision A—Scope of this Part
90AA
Object of this Part
The object of this Part is to allow the
court, in relation to the property of a party to a marriage, to:
(a) make an order under section 79
or 114; or
(b) grant an injunction under section 114;
that is directed to, or alters the rights, liabilities or
property interests of a third party.
90AB
Definitions
In this Part:
marriage includes a void marriage.
third party, in relation to a marriage, means
a person who is not a party to the marriage.
90AC
This Part overrides other laws, trust deeds etc.
(1) This Part has effect despite anything to
the contrary in any of the following (whether made before or after the
commencement of this Part):
(a) any other law (whether written or
unwritten) of the Commonwealth, a State or Territory;
(b) anything in a trust deed or other
instrument.
(2) Without limiting subsection (1),
nothing done in compliance with this Part by a third party in relation to a
marriage is to be treated as resulting in a contravention of a law or
instrument referred to in subsection (1).
90ACA
This Part not to apply to certain annuities
The powers of the court under this Part
do not apply to superannuation annuities (within the meaning of the Income
Tax Assessment Act 1997).
90AD
Extended meaning of matrimonial cause and property
(1) For the purposes of this Part, a debt
owed by a party to a marriage is to be treated as property for the purposes of paragraph (ca)
of the definition of matrimonial cause in section 4.
(2) For the purposes of paragraph 114(1)(e), property
includes a debt owed by a party to a marriage.
90ADA
Other provisions of this Act not affected by this Part
This Part does not affect the operation
of any other provision of this Act.
Example: Paragraph 90AE(3)(e) and subsection 90AE(4) do
not limit the operation of any other provisions of this Act that require or
permit the court to take matters into account in making an order in proceedings
under section 79.
Division 2—Orders under section 79
90AE
Court may make an order under section 79 binding a third party
(1) In proceedings under section 79, the
court may make any of the following orders:
(a) an order directed to a creditor of
the parties to the marriage to substitute one party for both parties in relation
to the debt owed to the creditor;
(b) an order directed to a creditor of
one party to a marriage to substitute the other party, or both parties, to the
marriage for that party in relation to the debt owed to the creditor;
(c) an order directed to a creditor of
the parties to the marriage that the parties be liable for a different
proportion of the debt owed to the creditor than the proportion the parties are
liable to before the order is made;
(d) an order directed to a director of
a company or to a company to register a transfer of shares from one party to
the marriage to the other party.
(2) In proceedings under section 79, the
court may make any other order that:
(a) directs a third party to do a
thing in relation to the property of a party to the marriage; or
(b) alters the rights, liabilities or
property interests of a third party in relation to the marriage.
(3) The court may only make an order under subsection (1)
or (2) if:
(a) the making of the order is
reasonably necessary, or reasonably appropriate and adapted, to effect a
division of property between the parties to the marriage; and
(b) if the order concerns a debt of a
party to the marriage—it is not foreseeable at the time that the order is made
that to make the order would result in the debt not being paid in full; and
(c) the third party has been accorded
procedural fairness in relation to the making of the order; and
(d) the court is satisfied that, in
all the circumstances, it is just and equitable to make the order; and
(e) the court is satisfied that the
order takes into account the matters mentioned in subsection (4).
(4) The matters are as follows:
(a) the taxation effect (if any) of
the order on the parties to the marriage;
(b) the taxation effect (if any) of
the order on the third party;
(c) the social security effect (if
any) of the order on the parties to the marriage;
(d) the third party’s administrative
costs in relation to the order;
(e) if the order concerns a debt of a
party to the marriage—the capacity of a party to the marriage to repay the debt
after the order is made;
Note: See paragraph (3)(b) for requirements for
making the order in these circumstances.
Example: The capacity of a party to the marriage to repay the
debt would be affected by that party’s ability to repay the debt without undue
hardship.
(f) the economic, legal or other
capacity of the third party to comply with the order;
Example: The legal capacity of the third party to comply with
the order could be affected by the terms of a trust deed. However, after taking
the third party’s legal capacity into account, the court may make the order
despite the terms of the trust deed. If the court does so, the order will have
effect despite those terms (see section 90AC).
(g) if, as a result of the third party
being accorded procedural fairness in relation to the making of the order, the
third party raises any other matters—those matters;
Note: See paragraph (3)(c) for the requirement to
accord procedural fairness to the third party.
(h) any other matter that the court
considers relevant.
Division 3—Orders or injunctions under section 114
90AF
Court may make an order or injunction under section 114 binding a third
party
(1) In proceedings under section 114,
the court may:
(a) make an order restraining a person
from repossessing property of a party to a marriage; or
(b) grant an injunction restraining a
person from commencing legal proceedings against a party to a marriage.
(2) In proceedings under section 114,
the court may make any other order, or grant any other injunction that:
(a) directs a third party to do a
thing in relation to the property of a party to the marriage; or
(b) alters the rights, liabilities or
property interests of a third party in relation to the marriage.
(3) The court may only make an order or grant
an injunction under subsection (1) or (2) if:
(a) the making of the order, or the
granting of the injunction, is reasonably necessary, or reasonably appropriate
and adapted, to effect a division of property between the parties to the
marriage; and
(b) if the order or injunction
concerns a debt of a party to the marriage—it is not foreseeable at the time
that the order is made, or the injunction granted, that to make the order or
grant the injunction would result in the debt not being paid in full; and
(c) the third party has been accorded
procedural fairness in relation to the making of the order or injunction; and
(d) for an injunction or order under
subsection 114(1)—the court is satisfied that, in all the circumstances, it is
proper to make the order or grant the injunction; and
(e) for an injunction under subsection
114(3)—the court is satisfied that, in all the circumstances, it is just or
convenient to grant the injunction; and
(f) the court is satisfied that the
order or injunction takes into account the matters mentioned in subsection (4).
(4) The matters are as follows:
(a) the taxation effect (if any) of
the order or injunction on the parties to the marriage;
(b) the taxation effect (if any) of
the order or injunction on the third party;
(c) the social security effect (if
any) of the order or injunction on the parties to the marriage;
(d) the third party’s administrative
costs in relation to the order or injunction;
(e) if the order or injunction
concerns a debt of a party to the marriage—the capacity of a party to the
marriage to repay the debt after the order is made or the injunction is
granted;
Note: See paragraph (3)(b) for requirements for
making the order or granting the injunction in these circumstances.
Example: The capacity of a party to the marriage to repay the
debt would be affected by that party’s ability to repay the debt without undue
hardship.
(f) the economic, legal or other
capacity of the third party to comply with the order or injunction;
Example: The legal capacity of the third party to comply with
the order or injunction could be affected by the terms of a trust deed.
However, after taking the third party’s legal capacity into account, the court
may make the order or grant the injunction despite the terms of the trust deed.
If the court does so, the order or injunction will have effect despite those
terms (see section 90AC).
(g) if, as a result of the third party
being accorded procedural fairness in relation to the making of the order or the
granting of the injunction, the third party raises any other matters—those
matters;
Note: See paragraph (3)(c) for the requirement to
accord procedural fairness to the third party.
(h) any other matter that the court
considers relevant.
Division 4—Other matters
90AG
Orders and injunctions binding on trustees
If an order or injunction binds a person
in the capacity of trustee in relation to property, then the order or
injunction is also binding (by force of this section) on any person who
subsequently becomes the trustee.
90AH
Protection for a third party
A third party in relation to a marriage
is not liable for loss or damage suffered by any person because of things done
(or not done) by the third party in good faith in reliance on an order or injunction
made or granted by a court in accordance with this Part.
90AI
Service of documents on a third party
(1) If a document is required or permitted to
be served for the purposes of this Part on a third party in relation to a
marriage, the document may be served in any of the ways in which a document may
be served under the applicable Rules of Court.
(2) Subsection (1) is in addition to any
other method of service permitted by law.
90AJ
Expenses of third party
(1) Subsection (2) applies if:
(a) the court has made an order or
granted an injunction in accordance with this Part in relation to a marriage;
and
(b) a third party in relation to the
marriage has incurred expense as a necessary result of the order or injunction.
(2) The court may make such order as it
considers just for the payment of the reasonable expenses of the third party
incurred as a necessary result of the order or injunction.
(3) In
deciding whether to make an order under subsection (2), subject to what
the court considers just, the court must take into account the principle that
the parties to the marriage should bear the reasonable expenses of the third
party equally.
(4) The regulations may provide, in
situations where the court has not made an order under subsection (2):
(a) for the charging by the third
party of reasonable fees to cover the reasonable expenses of the third party
incurred as a necessary result of the order or injunction; and
(b) if such fees are charged—that each
of the parties to the marriage is separately liable to pay the third party an
amount equal to half of those fees; and
(c) for conferring jurisdiction on a
particular court or courts in relation to the collection or recovery of such
fees.
90AK
Acquisition of property
(1) The court must not make an order or grant
an injunction in accordance with this Part if the order or injunction would:
(a) result in the acquisition of
property from a person otherwise than on just terms; and
(b) be invalid because of paragraph
51(xxxi) of the Constitution.
(2) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
Part VIIIA—Financial agreements
90A
Definitions
In this Part:
dealt with includes the meaning given by
subsection 90F(2).
marriage includes a void marriage.
90B
Financial agreements before marriage
(1) If:
(a) people who are contemplating
entering into a marriage with each other make a written agreement with respect
to any of the matters mentioned in subsection (2); and
(aa) at the time of the making of the
agreement, the people are not the spouse parties to any other binding agreement
(whether made under this section or section 90C or 90D) with respect to
any of those matters; and
(b) the agreement is expressed to be
made under this section;
the agreement is a financial agreement. The
people may make the financial agreement with one or more other people.
(2) The matters referred to in paragraph (1)(a)
are the following:
(a) how, in the event of the breakdown
of the marriage, all or any of the property or financial resources of either or
both of the spouse parties at the time when the agreement is made, or at a
later time and before divorce, is to be dealt with;
(b) the maintenance of either of the
spouse parties:
(i) during the marriage;
or
(ii) after divorce; or
(iii) both during the
marriage and after divorce.
(3) A financial agreement made as mentioned
in subsection (1) may also contain:
(a) matters incidental or ancillary to
those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new
agreement) made as mentioned in subsection (1) may terminate a
previous financial agreement (however made) if all of the parties to the previous
agreement are parties to the new agreement.
90C
Financial agreements during marriage
(1) If:
(a) the parties to a marriage make a
written agreement with respect to any of the matters mentioned in subsection (2);
and
(aa) at the time of the making of the
agreement, the parties to the marriage are not the spouse parties to any other
binding agreement (whether made under this section or section 90B or 90D)
with respect to any of those matters; and
(b) the agreement is expressed to be
made under this section;
the agreement is a financial agreement. The
parties to the marriage may make the financial agreement with one or more other
people.
(2) The matters referred to in paragraph (1)(a)
are the following:
(a) how, in the event of the breakdown
of the marriage, all or any of the property or financial resources of either or
both of the spouse parties at the time when the agreement is made, or at a
later time and during the marriage, is to be dealt with;
(b) the maintenance of either of the
spouse parties:
(i) during the marriage;
or
(ii) after divorce; or
(iii) both during the
marriage and after divorce.
(2A) For the avoidance of doubt, a financial
agreement under this section may be made before or after the marriage has
broken down.
(3) A financial agreement made as mentioned
in subsection (1) may also contain:
(a) matters incidental or ancillary to
those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new
agreement) made as mentioned in subsection (1) may terminate a
previous financial agreement (however made) if all of the parties to the
previous agreement are parties to the new agreement.
90D
Financial agreements after divorce order is made
(1) If:
(a) after a divorce order is made in
relation to a marriage (whether it has taken effect or not), the parties to the
former marriage make a written agreement with respect to any of the matters
mentioned in subsection (2); and
(aa) at the time of the making of the
agreement, the parties to the former marriage are not the spouse parties to any
other binding agreement (whether made under this section or section 90B or
90C) with respect to any of those matters; and
(b) the agreement is expressed to be
made under this section;
the agreement is a financial agreement. The
parties to the former marriage may make the financial agreement with one or
more other people.
(2) The matters referred to in paragraph (1)(a)
are the following:
(a) how all or any of the property or
financial resources that either or both of the spouse parties had or acquired
during the former marriage is to be dealt with;
(b) the maintenance of either of the
spouse parties.
(3) A financial agreement made as mentioned
in subsection (1) may also contain:
(a) matters incidental or ancillary to
those mentioned in subsection (2); and
(b) other matters.
(4) A financial agreement (the new
agreement) made as mentioned in subsection (1) may terminate a
previous financial agreement (however made) if all of the parties to the
previous agreement are parties to the new agreement.
90DA
Need for separation declaration for certain provisions of financial agreement
to take effect
(1) A financial agreement that is binding on
the parties to the agreement, to the extent to which it deals with how, in the
event of the breakdown of the marriage, all or any of the property or financial
resources of either or both of the spouse parties:
(a) at the time when the agreement is
made; or
(b) at a later time and before the
termination of the marriage by divorce;
are to be dealt with, is of no force or effect until a
separation declaration is made.
Note: Before the separation declaration is made, the
financial agreement will be of force and effect in relation to the other
matters it deals with (except for any matters covered by section 90DB).
(1A) Subsection (1) ceases to apply if:
(a) the spouse parties divorce; or
(b) either or both of them die.
Note: This means the financial agreement will be of
force and effect in relation to the matters mentioned in subsection (1)
from the time of the divorce or death(s).
(2) A separation declaration is a written
declaration that complies with subsections (3) and (4), and may be
included in the financial agreement to which it relates.
(3) The declaration must be signed by at
least one of the spouse parties to the financial agreement.
(4) The
declaration must state that:
(a) the spouse parties have separated
and are living separately and apart at the declaration time; and
(b) in the opinion of the spouse
parties making the declaration, there is no reasonable likelihood of
cohabitation being resumed.
(5) In this section:
declaration time means the time when the
declaration was signed by a spouse party to the financial agreement.
separated has the same meaning as in section 48
(as affected by section 49).
90DB
Whether or when certain other provisions of financial agreements take effect
(1) A financial agreement that is binding on
the parties to the agreement, to the extent to which it provides for a third
party to contribute to the maintenance of a spouse party during the marriage,
is of no force or effect.
(2) A financial agreement that is binding on
the parties to the agreement, to the extent to which it provides for matters
covered by paragraph 90B(3)(b) or 90C(3)(b), is of no force or effect unless
and until the marriage breaks down.
90E
Requirements with respect to provisions in financial agreements relating to the
maintenance of a party or a child or children
A provision of a financial agreement
that relates to the maintenance of a spouse party to the agreement or a child
or children is void unless the provision specifies:
(a) the party, or the child or
children, for whose maintenance provision is made; and
(b) the amount provided for, or the
value of the portion of the relevant property attributable to, the maintenance
of the party, or of the child or each child, as the case may be.
90F
Certain provisions in agreements
(1) No provision of a financial agreement
excludes or limits the power of a court to make an order in relation to the
maintenance of a party to a marriage if subsection (1A) applies.
(1A) This subsection applies if the court is
satisfied that, when the agreement came into effect, the circumstances of the
party were such that, taking into account the terms and effect of the
agreement, the party was unable to support himself or herself without an income
tested pension, allowance or benefit.
(2) To avoid doubt, a provision in an
agreement made as mentioned in subsection 90B(1), 90C(1) or 90D(1) that
provides for property or financial resources owned by a spouse party to the
agreement to continue in the ownership of that party is taken, for the purposes
of that section, to be a provision with respect to how the property or
financial resources are to be dealt with.
90G
When financial agreements are binding
(1) A financial agreement is binding on the
parties to the agreement if, and only if:
(a) the agreement is signed by all
parties; and
(b) the agreement contains, in
relation to each spouse party to the agreement, a statement to the effect that
the party to whom the statement relates has been provided, before the agreement
was signed by him or her, as certified in an annexure to the agreement, with
independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(c) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(d) the agreement has not been
terminated and has not been set aside by a court; and
(e) after the agreement is signed, the
original agreement is given to one of the spouse parties and a copy is given to
each of the other parties.
Note: For the manner in which the contents of a
financial agreement may be proved, see section 48 of the Evidence Act
1995.
(2) A court may make such orders for the
enforcement of a financial agreement that is binding on the parties to the
agreement as it thinks necessary.
90H
Effect of death of party to financial agreement
A financial agreement that is binding on
the parties to the agreement continues to operate despite the death of a party
to the agreement and operates in favour of, and is binding on, the legal
personal representative of that party.
90J
Termination of financial agreement
(1) The parties to a financial agreement may
terminate the agreement only by:
(a) including a provision to that
effect in another financial agreement as mentioned in subsection 90B(4), 90C(4)
or 90D(4); or
(b) making a written agreement (a termination
agreement) to that effect.
(2) A
termination agreement is binding on the parties if, and only if:
(a) the
agreement is signed by all parties to the agreement; and
(b) the agreement contains, in
relation to each spouse party to the agreement, a statement to the effect that
the party to whom the statement relates has been provided, before the agreement
was signed by him or her, as certified in an annexure to the agreement, with
independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(c) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(d) the agreement has not been set
aside by a court; and
(e) after the agreement is signed, the
original agreement is given to one of the spouse parties and a copy is given to
each of the other parties.
(3) A court may, on an application by a person
who was a party to the financial agreement that has been terminated, or by any
other interested person, make such order or orders (including an order for the
transfer of property) as it considers just and equitable for the purpose of
preserving or adjusting the rights of persons who were parties to that
financial agreement and any other interested persons.
Note: For the manner in which the contents of a
financial agreement may be proved, see section 48 of the Evidence Act
1995.
90K
Circumstances in which court may set aside a financial agreement or termination
agreement
(1) A court
may make an order setting aside a financial agreement or a termination
agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by
fraud (including non‑disclosure of a material matter); or
(aa) a party to the agreement entered
into the agreement:
(i) for the purpose, or
for purposes that included the purpose, of defrauding or defeating a creditor
or creditors of the party; or
(ii) with reckless
disregard of the interests of a creditor or creditors of the party; or
(ab) a party (the agreement party)
to the agreement entered into the agreement:
(i) for the purpose, or
for purposes that included the purpose, of defrauding another person who is a
party to a de facto relationship with a spouse party; or
(ii) for the purpose, or
for purposes that included the purpose, of defeating the interests of that
other person in relation to any possible or pending application for an order
under section 90SM, or a declaration under section 90SL, in relation
to the de facto relationship; or
(iii) with reckless
disregard of those interests of that other person; or
(b) the agreement is void, voidable or
unenforceable; or
(c) in the circumstances that have arisen
since the agreement was made it is impracticable for the agreement or a part of
the agreement to be carried out; or
(d) since the making of the agreement,
a material change in circumstances has occurred (being circumstances relating
to the care, welfare and development of a child of the marriage) and, as a
result of the change, the child or, if the applicant has caring responsibility
for the child (as defined in subsection (2)), a party to the agreement
will suffer hardship if the court does not set the agreement aside; or
(e) in respect of the making of a
financial agreement—a party to the agreement engaged in conduct that was, in
all the circumstances, unconscionable; or
(f) a payment flag is operating under
Part VIIIB on a superannuation interest covered by the agreement and there
is no reasonable likelihood that the operation of the flag will be terminated
by a flag lifting agreement under that Part; or
(g) the agreement covers at least one
superannuation interest that is an unsplittable interest for the purposes of
Part VIIIB.
(1A) For the purposes of paragraph (1)(aa),
creditor, in relation to a party to the agreement, includes a
person who could reasonably have been foreseen by the party as being reasonably
likely to become a creditor of the party.
(2) For the
purposes of paragraph (1)(d), a person has caring responsibility
for a child if:
(a) the person is a parent of the
child with whom the child lives; or
(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.
(3) A court may, on an application by a
person who was a party to the financial agreement that has been set aside, or
by any other interested person, make such order or orders (including an order for
the transfer of property) as it considers just and equitable for the purpose of
preserving or adjusting the rights of persons who were parties to that
financial agreement and any other interested persons.
(4) An order under subsection (1) or (3)
may, after the death of a party to the proceedings in which the order was made,
be enforced on behalf of, or against, as the case may be, the estate of the
deceased party.
(5) If a party to proceedings under this
section dies before the proceedings are completed:
(a) the proceedings may be continued
by or against, as the case may be, the legal personal representative of the
deceased party and the applicable Rules of Court may make provision in relation
to the substitution of the legal personal representative as a party to the
proceedings; and
(b) if the court is of the opinion:
(i) that it would have
exercised its powers under this section if the deceased party had not died; and
(ii) that it is still
appropriate to exercise those powers;
the court may make any order
that it could have made under subsection (1) or (3); and
(c) an order under paragraph (b)
may be enforced on behalf of, or against, as the case may be, the estate of the
deceased party.
(6) The court
must not make an order under this section if the order would:
(a) result
in the acquisition of property from a person otherwise than on just terms; and
(b) be
invalid because of paragraph 51(xxxi) of the Constitution.
For this purpose, acquisition of property
and just terms have the same meanings as in paragraph 51(xxxi) of
the Constitution.
90KA
Validity, enforceability and effect of financial agreements and termination
agreements
The question whether a financial
agreement or a termination agreement is valid, enforceable or effective is to
be determined by the court according to the principles of law and equity that
are applicable in determining the validity, enforceability and effect of
contracts and purported contracts, and, in proceedings relating to such an
agreement, the court:
(a) subject to paragraph (b), has
the same powers, may grant the same remedies and must have the same regard to
the rights of third parties as the High Court has, may grant and is required to
have in proceedings in connection with contracts or purported contracts, being
proceedings in which the High Court has original jurisdiction; and
(b) has power to make an order for the
payment, by a party to the agreement to another party to the agreement, of
interest on an amount payable under the agreement, from the time when the
amount became or becomes due and payable, at a rate not exceeding the rate
prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of,
making an order or orders under paragraph (a) or (b), may order that the
agreement, or a specified part of the agreement, be enforced as if it were an
order of the court.
90L
Financial and other agreements etc. not liable to duty
None of the following is subject to any
duty or charge under any law of a State or Territory or any law of the Commonwealth
that applies only in relation to a Territory:
(a) a financial agreement;
(b) a termination agreement;
(c) a deed or other instrument
executed by a person for the purposes of, or in accordance with, an order or
financial agreement made under this Part.
90M
Notification of proceeds of crime orders etc.
(1) If:
(a) a person makes an application for
an order, under this Part, with respect to:
(i) the property of the
parties to a marriage or either or them; or
(ii) the maintenance of a
party to a marriage; and
(b) the person knows that the property
of the parties to the marriage or either of them is covered by:
(i) a proceeds of crime
order; or
(ii) a forfeiture
application;
the person must:
(c) disclose in the application the
proceeds of crime order or forfeiture application; and
(d) give to the court a sealed copy of
that order or application.
(2) A person who does not comply with subsection (1)
commits an offence punishable, on conviction, by a fine not exceeding 50
penalty units.
(3) If:
(a) a person is a party to property
settlement or spousal maintenance proceedings under this Part; and
(b) the person is notified by the DPP
that the property of the parties to the marriage or either of them is covered
by:
(i) a proceeds of crime
order; or
(iii) a forfeiture
application;
the person must notify the Registry Manager in
writing of the proceeds of crime order or forfeiture application.
(4) A person who does not comply with subsection (3)
commits an offence punishable, on conviction, by a fine not exceeding 50
penalty units.
90N
Court to stay property or spousal maintenance proceedings affected by proceeds
of crime orders etc.
(1) A court in which property settlement or spousal maintenance proceedings are
pending must stay those proceedings if notified under section 90M
in relation to the proceedings.
(1A) The
court may, before staying proceedings under subsection (1), invite or
require the DPP to make submissions relating to staying the proceedings.
(2) A court must, on the application of the
DPP, stay property settlement or spousal maintenance proceedings under this
Part if the property of the parties to the marriage or either of them is
covered by:
(a) a proceeds of crime order; or
(b) a forfeiture application.
(3) A court must notify the DPP if the court
stays property settlement or spousal maintenance proceedings under subsection (1)
or (2).
(4) The DPP must notify the Registry Manager
if:
(a) a proceeds of crime order ceases
to be in force; or
(b) a forfeiture application is finally
determined.
(5) For the purposes of subsection (4),
a forfeiture application is taken to be finally determined when:
(a) the application is withdrawn; or
(b) if the application is
successful—the resulting forfeiture order comes into force; or
(c) if the application is
unsuccessful—the time within which an appeal can be made has expired and any
appeals have been finally determined or otherwise disposed of.
90P
Lifting a stay
(1) A court
that stayed the property settlement or spousal maintenance proceedings under
section 90N must wholly or partially lift the stay if:
(a) either party to the proceedings
makes an application for the stay to be lifted and the DPP consents to such an
application; or
(b) the DPP makes an application for
the stay to be lifted.
(2) A court that stayed the property
settlement or spousal maintenance proceedings under section 90N may, on
its own motion, wholly or partially lift the stay if the DPP consents to such a
motion.
(3) Giving the
Registry Manager written notice of the DPP’s consent under this section is
taken to be the giving of that consent, unless the court requires the DPP to
appear in the proceedings. The notice may be given by the DPP or by a party to
the proceedings.
90Q Intervention by DPP
(1) The DPP may intervene in any property
settlement or spousal maintenance proceedings in relation to which a court is
notified under section 90M, or in any proceedings under section 90N
or 90P in which the DPP is not already a party.
(2) If the DPP intervenes, the DPP is taken
to be a party to the proceedings with all the rights, duties and liabilities of
a party.
Part VIIIAB—Financial matters relating to de facto relationships
Division 1—Preliminary
Subdivision A—Meaning of key terms
90RA
Participating jurisdictions
Participating jurisdictions
(1) For the purposes of this Act, the
following are the participating jurisdictions:
(a) each referring State;
(b) each Territory.
Referring States
(2) A State is a referring State
if:
(a) the Parliament of the State has
referred, or refers, to the Parliament of the Commonwealth financial matters
relating to the parties to de facto relationships arising out of the
breakdown of those de facto relationships; and
(b) the referral of the financial
matters is made:
(i) for the purposes of
paragraph 51(xxxvii) of the Constitution; and
(ii) to the extent that the
financial matters are not otherwise included in the legislative powers of the
Parliament of the Commonwealth (otherwise than by a reference under paragraph
51(xxxvii) of the Constitution).
This subsection has effect subject to subsection (5).
(3) To avoid doubt, a State is not a referring
State if its Parliament has referred, or refers, to the Parliament of
the Commonwealth only a limited class of the matters referred to in
paragraph (2)(a).
(4) A State is a referring State
even if a law of the State provides that a reference to the Commonwealth
Parliament described in subsection (2) is to terminate in particular
circumstances.
(5) A State ceases to be a referring State
if the State’s reference to the Commonwealth Parliament described in
subsection (2) terminates.
90RB
Meaning of child of a de facto relationship
For the purposes of this Part, a child
is a child of a de facto relationship if the child is the
child of both of the parties to the de facto relationship.
Note: To determine who is a child of a person see
Subdivision D of Division 1 of Part VII.
Subdivision B—Relationship with State and Territory laws
90RC
Relationship with State and Territory laws
De facto financial provisions
(1) In this section:
de facto financial provisions means the
following provisions:
(a) this Part;
(b) Part VIIIAA (as applied by
section 90TA);
(c) Part VIIIB, to the extent to
which it relates to a superannuation interest to be allocated between the
parties to a de facto relationship;
(d) subsection 114(2A).
State and Territory laws do not apply to financial
matters
(2) Parliament intends that the de facto
financial provisions are to apply to the exclusion of any law of a State or
Territory to the extent that the law:
(a) deals with financial matters
relating to the parties to de facto relationships arising out of the
breakdown of those de facto relationships; and
(b) deals with those matters by
referring expressly to de facto relationships (regardless of how the State
or Territory law describes those relationships).
Note 1: If, for example, both this Part and a law of a
non‑referring State deal with the distribution of property between the
parties to a de facto relationship that has broken down after the
commencement of this section, then the parties can only seek to distribute the
property under this Part. Subsection (2) has the effect of preventing the
parties from seeking to distribute the property under the State law.
Note 2: For de facto relationship,
see section 4AA.
Exception—insufficient link to a participating
jurisdiction or Division 2 not applicable because of section 90SB
(3) Despite subsection (2), Parliament
does not intend that the de facto financial provisions are to apply to the
exclusion of a law of a State or Territory in relation to a financial matter
relating to the parties to a de facto relationship arising out of the
breakdown of the relationship if:
(a) a court cannot make an order under
this Part in relation to that financial matter because of section 90SB,
90SD or 90SK; and
(b) there is no Part VIIIAB
financial agreement that is binding on the parties dealing with that financial
matter.
Example 1: Abbey and Bob are parties to a de facto
relationship that has broken down, and have never been ordinarily resident in a
participating jurisdiction. Subsection (3) has the effect that State law
will govern financial matters arising out of the breakdown of their
relationship.
Example 2: Cleo and Dan are parties to a de facto
relationship that has broken down after the commencement of this section. Early
in their relationship, they made a financial agreement under the law of a non‑referring
State, but later spent most of their relationship in a participating jurisdiction.
Cleo and Dan now have a sufficient geographical link with a participating
jurisdiction for either of them to apply for an order under this Part in
relation to financial matters arising out of the breakdown of their
relationship. This means that subsection (3) will not apply and that their
financial agreement will not be enforceable under State law because of
subsection (2). However, their financial agreement will be enforceable
under this Part as a Part VIIIAB financial agreement (see
section 90UE).
Exception—laws facilitating this Act
(4) Despite subsection (2), Parliament
does not intend that the de facto financial provisions are to apply to the
exclusion of a law of a State or Territory to the extent that the law
facilitates the operation of this Act.
Note: This Part is not intended to apply to the
exclusion of, for example, a State law that deals with superannuation
entitlements by acknowledging superannuation splitting under Part VIIIB of
this Act.
Exception—prescribed State or Territory laws
(5) Despite subsection (2), Parliament
does not intend that the de facto financial provisions are to apply to the
exclusion of a law of a State or Territory if the law is prescribed in
regulations made for the purposes of this subsection.
Subdivision C—Declarations about existence of de facto relationships
90RD
Declarations about existence of de facto relationships
(1) If:
(a) an application is made for an
order under section 90SE, 90SG or 90SM, or a declaration under
section 90SL; and
(b) a claim is made, in support of the
application, that a de facto relationship existed between the applicant
and another person;
the court may, for the purposes of those proceedings (the primary
proceedings), declare that a de facto relationship existed, or
never existed, between those 2 persons.
(2) A declaration under subsection (1)
of the existence of a de facto relationship may also declare any or all of
the following:
(a) the period, or periods, of the
de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the
de facto relationship;
(c) whether one of the parties to the
de facto relationship made substantial contributions of a kind mentioned
in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto
relationship ended;
(e) where each of the parties to the
de facto relationship was ordinarily resident during the de facto
relationship.
Note: For child of a de facto
relationship, see section 90RB.
90RE
Effect of declarations
(1) A section 90RD declaration has
effect as a judgment of the court.
(2) For the purposes of this Act (other than
Part VII), a section 90RD declaration has effect according to its
terms.
90RF
Applying for declarations
Any party to the primary proceedings may
apply for a section 90RD declaration.
90RG Geographical
requirement
A court may make a section 90RD
declaration only if the court is satisfied that a person referred to in
paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a
participating jurisdiction when the primary proceedings commenced.
90RH
Setting aside declarations
(1) If, in the primary proceedings, a person
(the affected person) affected by a section 90RD declaration
made in those proceedings applies under this subsection, and the court is
satisfied that:
(a) a fact or circumstance has arisen
that has not previously been disclosed to the court; and
(b) if the affected person was a party
to the primary proceedings at the time the application for the declaration was
made—the fact or circumstance was not within the affected person’s knowledge at
that time;
the court may do any of the following:
(c) vary the declaration;
(d) set the declaration aside;
(e) set the declaration aside and make
another section 90RD declaration in substitution for the declaration so set
aside.
(2) The setting aside of a declaration does
not affect anything done in reliance on the declaration while it remained in
force.
(3) If the court sets aside a
section 90RD declaration, the court may, on application by the affected
person or any other interested person, make such order or orders (including an
order for the transfer of property) as it considers just and equitable for the
purpose of placing as far as practicable any person affected by the setting
aside of the declaration in the same position as that person would have been in
if the declaration had not been made.
Division 2—Maintenance, declarations of property interests and
alterations of property interests
Subdivision A—Application of Division
90SA
This Division does not apply to certain matters covered by binding financial
agreements
(1) This Division does not apply to any of
the following matters to which a Part VIIIAB financial agreement that is
binding on the parties to the agreement applies:
(a) the maintenance of one of the
spouse parties;
(b) the property of the spouse parties
or of either of them;
(c) the financial resources of the
spouse parties or of either of them.
(2) Subsection (1) does not apply in
relation to:
(a) proceedings between:
(i) a party to a
de facto relationship; and
(ii) the bankruptcy trustee
of a bankrupt party to the de facto relationship;
with respect to the maintenance
of the first‑mentioned party after the breakdown of the de facto
relationship; or
(b) proceedings between:
(i) a party to a
de facto relationship; and
(ii) the bankruptcy trustee
of a bankrupt party to the de facto relationship;
with respect to the
distribution, after the breakdown of the de facto relationship, of any
vested bankruptcy property in relation to the bankrupt party.
(3) Despite subsection (1), a party to a
de facto relationship is not prevented from bringing property settlement
proceedings under this Part if a Part VIIIAB financial agreement is not
binding on that party.
Example: Before Amy and Ben’s de facto relationship
breaks down, Ben and Cathy make a Part VIIIAB financial agreement. Ben and
Cathy’s Part VIIIAB financial agreement does not prevent Amy from bringing
property settlement proceedings against Ben.
90SB
When this Division applies—length of relationship etc.
A court may make an order under
section 90SE, 90SG or 90SM, or a declaration under section 90SL, in
relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of
the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the
de facto relationship; or
(c) that:
(i) the party to the
de facto relationship who applies for the order or declaration made
substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or
(c); and
(ii) a failure to make the
order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was
registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship,
see section 90RB.
90SC
This Division ceases to apply in relation to a de facto relationship if
the parties marry each other
(1) This Division (other than subsections
90SJ(2) to (5)) ceases to apply in relation to a de facto relationship if
the parties to the de facto relationship later marry each other.
(2) Despite subsection (1), a
declaration, order or injunction:
(a) made in property settlement
proceedings under this Division in relation to the de facto relationship;
and
(b) in force when the parties marry
each other;
may, after the marriage, be enforced, varied or set aside
in accordance with this Act.
(3) If a declaration, order or injunction is
set aside as described in subsection (2), another declaration, order or
injunction may be made under this Division in substitution for that
declaration, order or injunction.
Subdivision B—Maintenance
90SD
Geographical requirement
(1) A court may make an order under
section 90SE or 90SG in relation to a de facto relationship only if
the court is satisfied:
(a) that either or both of the parties
to the de facto relationship were ordinarily resident in a participating
jurisdiction when the application for the order was made (the application
time); and
(b) that either:
(i) both parties to the
de facto relationship were ordinarily resident during at least a third of
the de facto relationship; or
(ii) the applicant for the
order made substantial contributions, in relation to the de facto
relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or
Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A)
is met.
(1A) The alternative condition is that the
parties to the de facto relationship were ordinarily resident in a
participating jurisdiction when the relationship broke down.
(2) For the purposes of
paragraph (1)(b), a State need not have been a participating jurisdiction
during the de facto relationship.
(3) If each State is a referring State, the
Governor‑General may, by Proclamation, fix a day as the day on which
paragraph (1)(b), and the alternative condition in subsection (1A),
cease to apply in relation to new applications.
Note: Paragraph (1)(b) and subsection (1A)
will continue to apply in relation to applications made before the proclaimed
day.
(4) If:
(a) a Proclamation under
subsection (3) is in force; and
(b) a State ceases to be a referring
State on a particular day;
the Proclamation is revoked by force of this subsection on
and from that day.
(5) If, under subsection (4), a
Proclamation under subsection (3) is revoked:
(a) this section has effect as if the
revoked Proclamation had not been made; but
(b) the effect of the revoked
Proclamation on applications made before the specified day is not affected.
90SE
Power of court in maintenance proceedings
(1) After the breakdown of a de facto
relationship, a court may make such order as it considers proper for the
maintenance of one of the parties to the de facto relationship in
accordance with this Division.
Note 1: The geographical requirement in
section 90SD must be satisfied.
Note 2: The court must be satisfied of at least one of
the matters in section 90SB.
(2) If:
(a) an application is made for an
order under this section in proceedings between the parties to a de facto
relationship with respect to the maintenance of a party to the de facto
relationship; and
(b) either of the following
subparagraphs apply to a party to the de facto relationship:
(i) when the application was
made, the party was a bankrupt;
(ii) after the application
was made but before the proceedings are finally determined, the party became a
bankrupt; and
(c) the bankruptcy trustee applies to
the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the bankrupt’s creditors may be affected by the making of an order
under this section in the proceedings;
the court must join the bankruptcy trustee as a party to
the proceedings.
(3) If, under subsection (2), a
bankruptcy trustee is a party to proceedings with respect to the maintenance of
a party to a de facto relationship, then, except with the leave of the
court, the bankrupt party to the de facto relationship is not entitled to
make a submission to the court in connection with any vested bankruptcy
property in relation to the bankrupt party.
(4) The court must not grant leave under
subsection (3) unless the court is satisfied that there are exceptional
circumstances.
(5) If:
(a) an application is made for an
order under this section in proceedings between the parties to a de facto
relationship with respect to the maintenance of a party to the de facto
relationship; and
(b) either of the following
subparagraphs apply to a party to the de facto relationship (the debtor
party):
(i) when the application
was made, the debtor party was a debtor subject to a personal insolvency
agreement;
(ii) after the application
was made but before it is finally determined, the debtor party becomes a debtor
subject to a personal insolvency agreement; and
(c) the trustee of the agreement
applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the debtor party’s creditors may be affected by the making of an
order under this section in the proceedings;
the court must join the trustee of the agreement as a
party to the proceedings.
(6) If, under subsection (5), the
trustee of a personal insolvency agreement is a party to proceedings with
respect to the maintenance of a party to a de facto relationship, then,
except with the leave of the court, the debtor party is not entitled to make a
submission to the court in connection with any property subject to the
agreement.
(7) The court must not grant leave under
subsection (6) unless the court is satisfied that there are exceptional
circumstances.
(8) For the purposes of subsections (2)
and (5), an application for an order under this section is taken to be finally
determined when:
(a) the application is withdrawn or dismissed;
or
(b) an order (other than an interim
order) is made as a result of the application.
90SF Matters
to be taken into consideration in relation to maintenance
(1) In exercising jurisdiction under
section 90SE (after being satisfied of the matters in subsections 44(5)
and (6) and sections 90SB and 90SD), the court must apply the principle
that a party to a de facto relationship must maintain the other party to
the de facto relationship:
(a) only to the extent that the first‑mentioned
party is reasonably able to do so; and
(b) only if the second‑mentioned
party is unable to support himself or herself adequately whether:
(i) by reason of having
the care and control of a child of the de facto relationship who has not
attained the age of 18 years; or
(ii) by reason of age or
physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate
reason.
Note: For child of a de facto
relationship, see section 90RB.
(2) In applying this principle, the court
must take into account only the matters referred to in subsection (3).
(3) The
matters to be so taken into account are:
(a) the age and state of health of
each of the parties to the de facto relationship (the subject
de facto relationship); and
(b) the income, property and financial
resources of each of the parties and the physical and mental capacity of each
of them for appropriate gainful employment; and
(c) whether either party has the care
or control of a child of the de facto relationship who has not attained
the age of 18 years; and
(d) commitments of each of the parties
that are necessary to enable the party to support:
(i) himself or herself;
and
(ii) a child or another
person that the party has a duty to maintain; and
(e) the responsibilities of either
party to support any other person; and
(f) subject to subsection (4),
the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the
Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation
fund or scheme, whether the fund or scheme was established, or operates, within
or outside Australia;
and the rate of any such
pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all
the circumstances is reasonable; and
(h) the extent to which the payment of
maintenance to the party whose maintenance is under consideration would
increase the earning capacity of that party by enabling that party to undertake
a course of education or training or to establish himself or herself in a
business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order
on the ability of a creditor of a party to recover the creditor’s debt, so far
as that effect is relevant; and
(j) the extent to which the party whose
maintenance is under consideration has contributed to the income, earning
capacity, property and financial resources of the other party; and
(k) the duration of the de facto
relationship and the extent to which it has affected the earning capacity of the
party whose maintenance is under consideration; and
(l) the need to protect a party who
wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with
another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or
proposed to be made under section 90SM in relation to:
(i) the property of the
parties; or
(ii) vested bankruptcy
property in relation to a bankrupt party; and
(o) the terms of any order or
declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject
de facto relationship (in relation to another de facto relationship);
or
(ii) a person who is a
party to another de facto relationship with a party to the subject
de facto relationship; or
(iii) the property of a
person covered by subparagraph (i) and of a person covered by
subparagraph (ii), or of either of them; or
(iv) vested bankruptcy
property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or
declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject
de facto relationship; or
(ii) a person who is a
party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a
person covered by subparagraph (i) and of a person covered by
subparagraph (ii), or of either of them; or
(iv) vested bankruptcy
property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child
Support (Assessment) Act 1989 that a party to the subject de facto
relationship has provided, is to provide, or might be liable to provide in the
future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which,
in the opinion of the court, the justice of the case requires to be taken into
account; and
(s) the terms of any Part VIIIAB
financial agreement that is binding on either or both of the parties to the
subject de facto relationship; and
(t) the terms of any financial
agreement that is binding on a party to the subject de facto relationship.
(4) In exercising its jurisdiction under
section 90SE, a court must disregard any entitlement of the party whose
maintenance is under consideration to an income tested pension, allowance or
benefit.
90SG
Urgent maintenance cases
If, in proceedings with respect to the
maintenance of a party to a de facto relationship in accordance with this
Division, it appears to the court that:
(a) the party is in immediate need of
financial assistance; and
(b) it is not practicable in the
circumstances to determine immediately what order, if any, should be made;
the court may order the payment, pending the disposal of
the proceedings, of such periodic sum or other sums as the court considers
reasonable.
Note 1: The geographical requirement in
section 90SD must be satisfied.
Note 2: The court must be satisfied of at least one of
the matters in section 90SB.
90SH
Specification in orders of payments etc. for maintenance purposes
(1) If:
(a) a court makes an order under this
Act (whether or not the order is made in proceedings in relation to the
maintenance of a party to a de facto relationship in accordance with this
Division, is made by consent or varies an earlier order), and the order has the
effect of requiring:
(i) payment of a lump sum,
whether in one amount or by instalments; or
(ii) the transfer or
settlement of property; and
(b) the purpose, or one of the
purposes, of the payment, transfer or settlement is to make provision for the
maintenance of a party to a de facto relationship in relation to the
breakdown of the de facto relationship;
the court must:
(c) express the order to be an order
to which this section applies; and
(d) specify the portion of the
payment, or the value of the portion of the property, attributable to the
maintenance of the party.
(2) If:
(a) a court makes an order of a kind
referred to in paragraph (1)(a); and
(b) the order:
(i) is not expressed to be
an order to which this section applies; or
(ii) is expressed to be an
order to which this section applies, but does not comply with
paragraph (1)(d);
any payment, transfer or settlement of a kind referred to
in paragraph (1)(a), that the order has the effect of requiring, must be
taken not to make provision for the maintenance of a party to the relevant
de facto relationship.
90SI
Modification of maintenance orders
(1) If there is in force an order with
respect to the maintenance of a party to a de facto relationship in
accordance with this Division:
(a) made by the court; or
(b) made
by another court and registered in the first‑mentioned court in
accordance with the applicable Rules of Court;
the court may:
(c) discharge the order if there is
any just cause for so doing; or
(d) suspend its operation wholly or in
part and either until further order or until a fixed time or the happening of
some future event; or
(e) revive wholly or in part an order
suspended under paragraph (d); or
(f) subject to subsection (3),
vary the order so as to increase or decrease any amount ordered to be paid or
in any other manner.
(2) The court’s jurisdiction under
subsection (1) may be exercised:
(a) in any case—in proceedings with
respect to the maintenance of a party to the de facto relationship in
accordance with this Division; or
(b) if there is a bankrupt party to
the de facto relationship—on the application of the bankruptcy trustee; or
(c) if a party to the de facto
relationship is a debtor subject to a personal insolvency agreement—on the
application of the trustee of the agreement.
(3) The court must not make an order
increasing or decreasing an amount ordered to be paid by an order unless it is
satisfied:
(a) that, since the order was made or
last varied:
(i) the circumstances of a
person for whose benefit the order was made have so changed (including the
person entering into a stable and continuing de facto relationship); or
(ii) the circumstances of
the person liable to make payments under the order have so changed; or
(iii) in
the case of an order that operates in favour of, or is binding on, a legal
personal representative—the circumstances of the estate are such;
as to justify its so doing; or
(b) that, since the order was made, or
last varied, the cost of living has changed to such an extent as to justify its
so doing; or
(c) in a case where the order was made
by consent—that the amount ordered to be paid is not proper or adequate; or
(d) that:
(i) material facts were
withheld from the court that made the order, or from a court that varied the order;
or
(ii) material evidence
previously given before such a court was false.
(4) In satisfying itself for the purposes of
paragraph (3)(b), the court must have regard to any changes that have
occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court must not, in considering the
variation of an order, have regard to a change in the cost of living unless at
least 12 months have elapsed since the order was made or was last varied having
regard to a change in the cost of living.
(6) In satisfying itself for the purposes of
paragraph (3)(c), the court must have regard to any payments, and any
transfer or settlement of property, previously made by a party to the
de facto relationship, or by the bankruptcy trustee of a party to the
de facto relationship, to:
(a) the other party; or
(b) any other person for the benefit
of the other party.
(7) An order decreasing the amount of a
periodic sum payable under an order or discharging an order may be expressed to
be retrospective to such date as the court considers appropriate.
(8) If, as provided by subsection (7),
an order decreasing the amount of a periodic sum payable under an order is
expressed to be retrospective to a specified date, any money paid under the
second‑mentioned order since the specified date, being money that would
not have been required to be paid under the second‑mentioned order as
varied by the first‑mentioned order, may be recovered in a court having
jurisdiction under this Act.
(9) If, as provided by subsection (7),
an order discharging an order is expressed to be retrospective to a specified
date, any money paid under the second‑mentioned order since the specified
date may be recovered in a court having jurisdiction under this Act.
(10) For the purposes of this section, the
court must have regard to the provisions of section 90SF.
(11) The discharge of an order does not affect
the recovery of arrears due under the order at the time as at which the
discharge takes effect.
90SJ
Cessation of maintenance orders
(1) An order with respect to the maintenance
of a party to a de facto relationship in accordance with this Division
ceases to have effect upon:
(a) the death of the party; or
(b) the death of the person liable to
make payments under the order.
(2) An order with respect to the maintenance
of a party to a de facto relationship in accordance with this Division
ceases to have effect upon the marriage of the party unless in special
circumstances a court having jurisdiction under this Act otherwise orders.
(3) If a marriage referred to in
subsection (2) takes place, it is the duty of the person for whose benefit
the order was made to inform without delay the person liable to make payments
under the order of the date of the marriage.
(4) Any money paid in respect of a period
after the event referred to in subsection (2) may be recovered in a court
having jurisdiction under this Act.
(5) Nothing in this section affects the
recovery of arrears due under an order at the time when the order ceased to
have effect.
Subdivision C—Declarations and alterations of property interests
90SK
Geographical requirement
(1) A court may make a declaration under
section 90SL, or an order under section 90SM, in relation to a
de facto relationship only if the court is satisfied:
(a) that either or both of parties to
the de facto relationship were ordinarily resident in a participating
jurisdiction when the application for the declaration or order was made (the application
time); and
(b) that either:
(i) both parties to the de facto
relationship were ordinarily resident during at least a third of the
de facto relationship; or
(ii) the applicant for the
declaration or order made substantial contributions in relation to the
de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or
(c);
in one or more States or
Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A)
is met.
(1A) The alternative condition is that the
parties to the de facto relationship were ordinarily resident in a
participating jurisdiction when the relationship broke down.
(2) For the purposes of
paragraph (1)(b), a State need not have been a participating jurisdiction
during the de facto relationship.
(3) If each State is a referring State, the
Governor‑General may, by Proclamation, fix a day as the day on which
paragraph (1)(b), and the alternative condition in subsection (1A),
cease to apply in relation to new applications.
Note: Paragraph (1)(b) and subsection (1A)
will continue to apply in relation to applications made before the proclaimed
day.
(4) If:
(a) a Proclamation under
subsection (3) is in force; and
(b) a State ceases to be a referring
State on a particular day;
the Proclamation is revoked by force of this subsection on
and from that day.
(5) If, under subsection (4), a
Proclamation under subsection (3) is revoked:
(a) this section has effect as if the
revoked Proclamation had not been made; but
(b) the effect of the revoked
Proclamation on applications made before the specified day is not affected.
90SL
Declaration of interests in property
(1) In proceedings between the parties to a
de facto relationship:
(a) after the breakdown of the
de facto relationship; and
(b) with respect to existing title or
rights in respect of property;
the court may declare the title or rights, if any, that a
party has in respect of the property.
Note 1: The geographical requirement in
section 90SK must be satisfied.
Note 2: The court must be satisfied of at least one of the
matters in section 90SB.
(2) If a court makes a declaration under
subsection (1), it may make consequential orders to give effect to the
declaration, including orders as to sale or partition and interim or permanent
orders as to possession.
90SM
Alteration of property interests
(1) In property settlement proceedings after
the breakdown of a de facto relationship, the court may make such order as
it considers appropriate:
(a) in the case of proceedings with
respect to the property of the parties to the de facto relationship or
either of them—altering the interests of the parties to the de facto
relationship in the property; or
(b) in the case of proceedings with
respect to the vested bankruptcy property in relation to a bankrupt party to
the de facto relationship—altering the interests of the bankruptcy trustee
in the vested bankruptcy property;
including:
(c) an order for a settlement of
property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the
parties to the de facto relationship; or
(ii) the relevant
bankruptcy trustee (if any);
to make, for the benefit of
either or both of the parties to the de facto relationship or a child of
the de facto relationship, such settlement or transfer of property as the
court determines.
Note 1: The geographical requirement in
section 90SK must be satisfied.
Note 2: The court must be satisfied of at least one of
the matters in section 90SB.
Note 3: For child of a de facto relationship,
see section 90RB.
(2) If a party to the de facto
relationship dies after the breakdown of the de facto relationship, an
order made under subsection (1) in property settlement proceedings may be
enforced on behalf of, or against, as the case may be, the estate of the
deceased party.
(3) The court must not make an order under
this section unless it is satisfied that, in all the circumstances, it is just
and equitable to make the order.
(4) In considering what order (if any) should
be made under this section in property settlement proceedings, the court must
take into account:
(a) the financial contribution made
directly or indirectly by or on behalf of a party to the de facto
relationship, or a child of the de facto relationship:
(i) to the acquisition,
conservation or improvement of any of the property of the parties to the
de facto relationship or either of them; or
(ii) otherwise in relation
to any of that last‑mentioned property;
whether or not that last‑mentioned
property has, since the making of the contribution, ceased to be the property
of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a
financial contribution) made directly or indirectly by or on behalf of a party
to the de facto relationship, or a child of the de facto
relationship:
(i) to the acquisition,
conservation or improvement of any of the property of the parties to the
de facto relationship or either of them; or
(ii) otherwise in relation
to any of that last‑mentioned property;
whether or not that last‑mentioned
property has, since the making of the contribution, ceased to be the property
of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party
to the de facto relationship to the welfare of the family constituted by
the parties to the de facto relationship and any children of the
de facto relationship, including any contribution made in the capacity of
homemaker or parent; and
(d) the effect of any proposed order
upon the earning capacity of either party to the de facto relationship;
and
(e) the matters referred to in
subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this
Act affecting a party to the de facto relationship or a child of the
de facto relationship; and
(g) any child support under the Child
Support (Assessment) Act 1989 that a party to the de facto
relationship has provided, is to provide, or might be liable to provide in the
future, for a child of the de facto relationship.
(5) Without limiting the power of any court
to grant an adjournment in proceedings under this Act, if, in property
settlement proceedings in relation to the parties to a de facto
relationship, a court is of the opinion:
(a) that there is likely to be a
significant change in the financial circumstances of the parties to the
de facto relationship or either of them and that, having regard to the
time when that change is likely to take place, it is reasonable to adjourn the
proceedings; and
(b) that an order that the court could
make with respect to:
(i) the property of the
parties to the de facto relationship or either of them; or
(ii) the vested bankruptcy
property in relation to a bankrupt de facto party to the de facto
relationship;
if that significant change in
financial circumstances occurs is more likely to do justice as between the
parties to the de facto relationship than an order that the court could
make immediately with respect to:
(iii) the property of the
parties to the de facto relationship or either of them; or
(iv) the vested bankruptcy
property in relation to a bankrupt party to the de facto relationship;
the court may, if so requested by either party to the
de facto relationship or the relevant bankruptcy trustee (if any), adjourn
the proceedings until such time, before the expiration of a period specified by
the court, as that party to the de facto relationship or the relevant
bankruptcy trustee, as the case may be, applies for the proceedings to be
determined, but nothing in this subsection requires the court to adjourn any
proceedings in any particular circumstances.
(6) If a court proposes to adjourn
proceedings as provided by subsection (5), the court may, before so
adjourning the proceedings, make such interim order or orders or such other
order or orders (if any) as it considers appropriate with respect to:
(a) any of the property of the parties
to the de facto relationship or of either of them; or
(b) any of the vested bankruptcy
property in relation to a bankrupt party to the de facto relationship.
(7) The court may, in forming an opinion for
the purposes of subsection (5) as to whether there is likely to be a
significant change in the financial circumstances of either or both of the
parties to the de facto relationship, have regard to any change in the financial
circumstances of a party to the de facto relationship that may occur by
reason that the party to the de facto relationship:
(a) is a contributor to a
superannuation fund or scheme, or participates in any scheme or arrangement
that is in the nature of a superannuation scheme; or
(b) may become entitled to property as
the result of the exercise in his or her favour, by the trustee of a
discretionary trust, of a power to distribute trust property;
but nothing in this subsection limits the circumstances in
which the court may form the opinion that there is likely to be a significant
change in the financial circumstances of a party to the de facto
relationship.
(8) If a party to the de facto
relationship dies after the breakdown of the de facto relationship, but
before property settlement proceedings are completed:
(a) the proceedings may be continued
by or against, as the case may be, the legal personal representative of the
deceased party and the applicable Rules of Court may make provision in relation
to the substitution of the legal personal representative as a party to the
proceedings; and
(b) if the court is of the opinion:
(i) that it would have
made an order with respect to property if the deceased party had not died; and
(ii) that it is still
appropriate to make an order with respect to property;
the court may make such order as
it considers appropriate with respect to:
(iii) any of the property of
the parties to the de facto relationship or either of them; or
(iv) any of the vested
bankruptcy property in relation to a bankrupt de facto party to the
de facto relationship; and
(c) an order made by the court
pursuant to paragraph (b) may be enforced on behalf of, or against, as the
case may be, the estate of the deceased party.
(9) The Family Court must not make an order
under this section in property settlement proceedings (other than an order
until further order or an order made with the consent of all the parties to the
proceedings) unless:
(a) the parties to the proceedings
have attended a conference in relation to the matter to which the proceedings
relate with a Registrar or Deputy Registrar of the Family Court; or
(b) the court is satisfied that,
having regard to the need to make an order urgently, or to any other special
circumstance, it is appropriate to make the order notwithstanding that the
parties to the proceedings have not attended a conference as mentioned in
paragraph (a); or
(c) the court is satisfied that it is
not practicable to require the parties to the proceedings to attend a conference
as mentioned in paragraph (a).
(10) The following are entitled to become a
party to proceedings in which an application is made for an order under this
section by a party to a de facto relationship (the subject
de facto relationship):
(a) a creditor of a party to the
proceedings if the creditor may not be able to recover his or her debt if the
order were made;
(b) a person:
(i) who is a party to a
de facto relationship (the other de facto relationship)
with a party to the subject de facto relationship; and
(ii) who could apply, or
has an application pending, for an order under section 90SM, or a
declaration under section 90SL, in relation to the other de facto
relationship;
(c) a person who is a party to a
Part VIIIAB financial agreement (that is binding on the person) with a
party to the subject de facto relationship;
(d) a person:
(i) who is a party to a
marriage with a party to the subject de facto relationship; and
(ii) who could apply, or
has an application pending, for an order under section 79, or a
declaration under section 78, in relation to the marriage (or void
marriage);
(e) a person who is a party to a
financial agreement (that is binding on the person) with a party to the subject
de facto relationship;
(f) any other person whose interests
would be affected by the making of the order.
(11) Subsection (10) does not apply to a
creditor of a party to the proceedings:
(a) if the party is a bankrupt—to the
extent to which the debt is a provable debt (within the meaning of the Bankruptcy
Act 1966); or
(b) if the party is a debtor subject
to a personal insolvency agreement—to the extent to which the debt is covered
by the personal insolvency agreement.
(12) If a person becomes a party to proceedings
under this section because of paragraph (10)(b), the person may, in the
proceedings, apply for:
(a) an order under section 90SM;
or
(b) a declaration under
section 90SL;
in relation to the other de facto relationship
described in that paragraph.
(13) If a person becomes a party to proceedings
under this section because of paragraph (10)(d), the person may, in the
proceedings, apply for:
(a) an order under section 79; or
(b) a declaration under
section 78;
in relation to the marriage (or void marriage) described
in that paragraph.
(14) If:
(a) an application is made for an
order under this section in proceedings between the parties to a de facto
relationship with respect to the property of the parties to the de facto
relationship or either of them; and
(b) either of the following subparagraphs
apply to a party to the de facto relationship:
(i) when the application
was made, the party was a bankrupt;
(ii) after the application
was made but before it is finally determined, the party became a bankrupt; and
(c) the bankruptcy trustee applies to
the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the bankrupt’s creditors may be affected by the making of an order
under this section in the proceedings;
the court must join the bankruptcy trustee as a party to
the proceedings.
(15) If a bankruptcy trustee is a party to
property settlement proceedings in relation to the parties to a de facto
relationship, then, except with the leave of the court, the bankrupt party to
the de facto relationship is not entitled to make a submission to the
court in connection with any vested bankruptcy property in relation to the
bankrupt party.
(16) The court must not grant leave under
subsection (15) unless the court is satisfied that there are exceptional
circumstances.
(17) If:
(a) an application is made for an
order under this section in proceedings between the parties to a de facto
relationship with respect to the property of the parties to the de facto
relationship or either of them; and
(b) either of the following
subparagraphs apply to a party to the de facto relationship (the debtor
party):
(i) when the application
was made, the party was a debtor subject to a personal insolvency agreement;
(ii) after the application
was made but before it is finally determined, the party becomes a debtor
subject to a personal insolvency agreement; and
(c) the trustee of the agreement
applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the
interests of the debtor party’s creditors may be affected by the making of an
order under this section in the proceedings;
the court must join the trustee of the agreement as a
party to the proceedings.
(18) If the trustee of a personal insolvency
agreement is a party to property settlement proceedings in relation to the
parties to a de facto relationship, then, except with the leave of the
court, the party to the de facto relationship who is the debtor subject to
the agreement is not entitled to make a submission to the court in connection
with any property subject to the agreement.
(19) The court must not grant leave under
subsection (18) unless the court is satisfied that there are exceptional
circumstances.
(20) For the purposes of subsections (14)
and (17), an application for an order under this section is taken to be finally
determined when:
(a) the application is withdrawn or
dismissed; or
(b) an order (other than an interim
order) is made as a result of the application.
90SN
Varying and setting aside orders altering property interests
(1) If, on application by a person affected
by an order made by a court under section 90SM in property settlement
proceedings, the court is satisfied that:
(a) there has been a miscarriage of
justice by reason of fraud, duress, suppression of evidence (including failure
to disclose relevant information), the giving of false evidence or any other
circumstance; or
(b) in the circumstances that have
arisen since the order was made it is impracticable for the order to be carried
out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying
out an obligation imposed on the person by the order and, in the circumstances
that have arisen as a result of that default, it is just and equitable to vary
the order or to set the order aside and make another order in substitution for
the order; or
(d) in the circumstances that have
arisen since the making of the order, being circumstances of an exceptional
nature relating to the care, welfare and development of a child of the
de facto relationship, the child or, where the applicant has caring
responsibility for the child (as defined in subsection (3)), the
applicant, will suffer hardship if the court does not vary the order or set the
order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been
made covering property of the parties to the de facto relationship or
either of them, or a proceeds of crime order has been made against a party to
the de facto relationship;
the court may, in its discretion, vary the order or set
the order aside and, if it considers appropriate, make another order under
section 90SM in substitution for the order so set aside.
Note: For child of a de facto
relationship, see section 90RB.
(2) A court may, on application by a person
affected by an order made by a court under section 90SM in property
settlement proceedings, and with the consent of all the parties to the
proceedings in which the order was made, vary the order or set the order aside
and, if it considers appropriate, make another order under section 90SM in
substitution for the order so set aside.
(3) For the purposes of
paragraph (1)(d), a person has caring responsibility for a
child if:
(a) the person is a parent of the child
with whom the child lives; or
(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.
(4) An order varied or made under
subsection (1) or (2) may, after the death of a party to the de facto
relationship in relation to which the order was so varied or made, be enforced
on behalf of, or against, as the case may be, the estate of the deceased party.
(5) If, before proceedings under this section
in relation to an order made under section 90SM are completed, a party to
the de facto relationship dies:
(a) the proceedings may be continued
by or against, as the case may be, the legal personal representative of the
deceased party and the applicable Rules of Court may make provision in relation
to the substitution of the legal personal representative as a party to the
proceedings; and
(b) if the court is of the opinion:
(i) that it would have
exercised its powers under subsection (1) or (2) in relation to the order
if the deceased party had not died; and
(ii) that it is still
appropriate to exercise its powers under subsection (1) or (2) in relation
to the order;
the court may vary the order,
set the order aside, or set the order aside and make another order under
section 90SM in substitution for the order so set aside; and
(c) an order varied or made by the
court pursuant to paragraph (b) may be enforced on behalf of, or against,
as the case may be, the estate of the deceased party.
(6) In the exercise of its powers under
subsection (1), (2) or (5), a court must have regard to the interests of,
and must make any order proper for the protection of, a bona fide purchaser
or other person interested.
(7) For the purposes of this section, a
creditor of a party to the proceedings in which the order under
section 90SM was made is taken to be a person whose interests are affected
by the order if the creditor may not be able to recover his or her debt because
the order has been made.
(8) For the
purposes of this section, if:
(a) an order is made by a court under
section 90SM in proceedings with respect to the property of the parties to
a de facto relationship or either of them; and
(b) either of the following
subparagraphs apply to a party to the de facto relationship:
(i) when the order was
made, the party was a bankrupt;
(ii) after the order was
made, the party became a bankrupt;
the bankruptcy trustee is taken to be a person whose
interests are affected by the order.
(9) For the purposes of this section, if:
(a) a party to a de facto
relationship is a bankrupt; and
(b) an order is made by a court under
section 90SM in proceedings with respect to the vested bankruptcy property
in relation to the bankrupt party;
the bankruptcy trustee is taken to be a person whose
interests are affected by the order.
(10) For the purposes of this section, if:
(a) an order is made by a court under
section 90SM in proceedings with respect to the property of the parties to
a de facto relationship or either of them; and
(b) either of the following
subparagraphs apply to a party to the de facto relationship:
(i) when the order was
made, the party was a debtor subject to a personal insolvency agreement;
(ii) after the order was
made, the party became a debtor subject to a personal insolvency agreement;
the trustee of the agreement is taken to be a person whose
interests are affected by the order.
Subdivision D—Notification of application
90SO
Notifying third parties about application
The applicable Rules of Court may
specify the circumstances in which a person who:
(a) applies for an order under this
Division; or
(b) is a party to a proceeding for an
order under this Division;
is to give notice of the application to a person who is
not a party to the proceedings.
Note: The applicable Rules of Court may, for
example, make provision for the notification of a person married to, or in a
de facto relationship with, the applicant or respondent to the
proceedings.
90SP
Notifying bankruptcy trustee etc. about application under section 90SE,
90SL, 90SM or 90SN
(1) The applicable Rules of Court may make
provision for a bankrupt who becomes a party to a proceeding for an application
under section 90SE, 90SL, 90SM or 90SN to give notice of the application
to the bankruptcy trustee.
(2) The applicable Rules of Court may make
provision for a debtor subject to a personal insolvency agreement who becomes a
party to a proceeding for an application under section 90SE, 90SL, 90SM or
90SN to give notice of the application to the trustee of the agreement.
90SQ Notifying
court about bankruptcy etc.
Bankruptcy
(1) The applicable Rules of Court may make
provision for a person who:
(a) is a party to a de facto
relationship that has broken down; and
(b) is a party to a proceeding for an
application under section 90SE, 90SL, 90SM or 90SN; and
(c) before that application is finally
determined, becomes a bankrupt;
to notify a court exercising jurisdiction under this Act
that the person has become a bankrupt.
Debtor subject to a personal insolvency agreement
(2) The applicable Rules of Court may make
provision for a person who:
(a) is a party to a de facto
relationship that has broken down; and
(b) is a party to a proceeding for an
application under section 90SE, 90SL, 90SM or 90SN; and
(c) before that application is finally
determined, becomes a debtor subject to a personal insolvency agreement;
to notify a court exercising jurisdiction under this Act
that the person has become a debtor subject to a personal insolvency
agreement.
Institution of proceeding under the Bankruptcy Act 1966
(3) The applicable Rules of Court may make
provision for a person who:
(a) is a party to a de facto
relationship that has broken down; and
(b) is a party to a proceeding for an
application under section 90SE, 90SL, 90SM or 90SN; and
(c) before that application is finally
determined, becomes a party to a proceeding before the Federal Court or the
Federal Magistrates Court under the Bankruptcy Act 1966 that relates to:
(i) the bankruptcy of the
person; or
(ii) the person’s capacity
as a debtor subject to a personal insolvency agreement;
to notify a court exercising jurisdiction under this Act
of the institution of the proceeding under the Bankruptcy Act 1966.
(4) The applicable Rules of Court may make
provision for a person who:
(a) is the bankruptcy trustee of a
bankrupt party to a de facto relationship; and
(b) the de facto relationship has
broken down; and
(c) applies under section 139A of
the Bankruptcy Act 1966 for an order under Division 4A of
Part VI of that Act;
to notify a court exercising jurisdiction under this Act
of the making of the application.
When application finally determined
(5) For the purposes of this section, an
application for an order under section 90SE, 90SM or 90SN is taken to be
finally determined when:
(a) the application is withdrawn or
dismissed; or
(b) an order (other than an interim
order) is made as a result of the application.
(6) For the purposes of this section, an
application for a declaration under section 90SL is taken to be finally
determined when:
(a) the application is withdrawn or
dismissed; or
(b) a declaration is made as a result
of the application.
90SR
Notifying non‑bankrupt de facto party about application under
section 139A of the Bankruptcy Act 1966
The applicable Rules of Court may make
provision for a person who:
(a) is the bankruptcy trustee of a
bankrupt party to a de facto relationship; and
(b) applies under section 139A of
the Bankruptcy Act 1966 for an order under Division 4A of
Part VI of that Act in relation to an entity (other than the other party
to the de facto relationship);
to notify the other party to the de facto
relationship of the making of the application if that bankruptcy trustee is
aware that the de facto relationship has broken down.
Subdivision E—Court powers
90SS
General powers of court
General powers
(1) The court, in exercising its powers under
this Division, may do any or all of the following:
(a) order payment of a lump sum,
whether in one amount or by instalments;
(b) order payment of a weekly,
monthly, yearly or other periodic sum;
(c) order that a specified transfer or
settlement of property be made by way of maintenance for a party to a
de facto relationship;
(d) order that payment of any sum
ordered to be paid be wholly or partly secured in such manner as the court
directs;
(e) order that any necessary deed or
instrument be executed and that such documents of title be produced or such
other things be done as are necessary to enable an order to be carried out
effectively or to provide security for the due performance of an order;
(f) appoint or remove trustees;
(g) order that payments be made direct
to a party to the de facto relationship, to a trustee to be appointed or
into court or to a public authority for the benefit of a party to the
de facto relationship;
(h) make a permanent order, an order
pending the disposal of proceedings or an order for a fixed term or for a life
or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order, or grant any
other injunction, (whether or not of the same nature as those mentioned in the
preceding paragraphs of this section) which it thinks it is necessary to make
to do justice;
(l) subject to this Act and the
applicable Rules of Court, make an order under this Division at any time before
or after the making of a decree under another provision of this Act.
Note: The court also has specific powers in relation
to third parties (see Division 3 of Part VIIIAA (as that Division has
effect because of section 90TA)).
Limitation for orders or injunctions covered by
section 90AF
(2) Subsection (1) has effect subject to
subsection 90AF(3) (as that subsection has effect because of
section 90TA).
Note: An order or injunction made or granted under
subsection (1) that is of a kind covered by subsection 90AF(1) or (2) can
only be made or granted in accordance with subsection 90AF(3).
Maintenance orders
(3) The making of an order of a kind referred
to in paragraph (1)(c), or of any other order under this Division, in
relation to the maintenance of a party to a de facto relationship does not
prevent a court from making a subsequent order in relation to the maintenance
of the party.
(4) The applicable Rules of Court may make
provision with respect to the making of orders under this Division in relation
to the maintenance of parties to de facto relationships (whether as to
their form or otherwise) for the purpose of facilitating their enforcement and
the collection of maintenance payable under them.
Injunctions
(5) Without limiting paragraph (1)(k),
the court may:
(a) grant:
(i) an interlocutory
injunction; or
(ii) an injunction in aid
of the enforcement of a decree;
in any case in which it appears
to the court to be just or convenient to do so; and
(b) grant an injunction either
unconditionally or upon such terms and conditions as the court considers
appropriate.
Bankruptcy and insolvency
(6) If a bankruptcy trustee is a party to a
proceeding before the court, the court may make an order under
paragraph (1)(e) directed to the bankrupt.
(7) If the trustee of a personal insolvency
agreement is a party to a proceeding before the court, the court may make an
order under paragraph (1)(e) directed to the debtor subject to the
agreement.
(8) Subsections (6) and (7) do not limit
paragraph (1)(e).
(9) If a party to a de facto
relationship is a bankrupt, a court may, on the application of the other party
to the de facto relationship, by interlocutory order, grant an injunction
under subsection (1) restraining the bankruptcy trustee from declaring and
distributing dividends amongst the bankrupt’s creditors.
(10) If a party to a de facto relationship
is a debtor subject to a personal insolvency agreement, a court may, on the
application of the other party to the de facto relationship, by
interlocutory order, grant an injunction under subsection (1) restraining
the trustee of the agreement from disposing of (whether by sale, gift or
otherwise) property subject to the agreement.
(11) Subsections (9) and (10) do not limit
subsections (1) and (5).
90ST
Duty of court to end financial relations
In proceedings under this Division,
other than proceedings under section 90SL, the court must, as far as
practicable, make such orders as will finally determine the financial
relationships between the parties to the de facto relationship and avoid
further proceedings between them.
Division 3—Orders and injunctions binding third parties
90TA
Orders and injunctions binding third parties
(1) In addition to the effect
Part VIIIAA has apart from this section, that Part also has effect in
relation to:
(a) orders and injunctions under
Division 2; and
(b) proceedings for orders or
injunctions under Division 2;
with the modifications provided for in
subsections (2) and (3).
(2) Part VIIIAA has effect in accordance
with subsection (1) as if the following substitutions were made:
|
Substitutions to be
made
|
|
Item
|
For a reference in
Part VIIIAA to ...
|
substitute a reference
to ...
|
|
1
|
marriage
|
de facto relationship
|
|
2
|
section 79
|
section 90SM
|
|
3
|
section 114
|
section 90SS
|
|
4
|
paragraph (ca) of the definition of matrimonial
cause
|
paragraph (c) of the definition of de facto
financial cause
|
|
5
|
orders or injunctions under section 114
|
orders or injunctions under Division 2 of
Part VIIIAB
|
|
6
|
proceedings under section 114
|
proceedings under Division 2 of Part VIIIAB
|
|
7
|
an injunction under subsection 114(3)
|
an injunction covered by subsection 90SS(5)
|
(3) Part VIIIAA has effect in accordance
with subsection (1) as if:
(a) subsection 90AD(2) were replaced
with the following:
“(2) For the purposes of section 90SS (to
the extent that it provides for the granting of an injunction in relation to
the property of a party to a de facto relationship), property
includes a debt owed by a party to the de facto relationship.”; and
(b) paragraph 90AF(3)(d) were omitted;
and
(c) the following paragraph were
inserted after paragraph 90AF(3)(e):
“(ea) for any other injunction—the court
is satisfied that, in all the circumstances, it is necessary to grant the
injunction to do justice; and”; and
(d) the following subsection were
added at the end of section 90AF:
“(5) Subsections (1) and (2) do not limit
subsection 90SS(1).”.
Division 4—Financial agreements
90UA
Geographical requirement for agreements made in participating jurisdictions
Two or more people can make a
Part VIIIAB financial agreement under section 90UB, 90UC or 90UD only
if the spouse parties are ordinarily resident in a participating jurisdiction
when they make the agreement.
90UB
Financial agreements before de facto relationship
(1) If:
(a) people who are contemplating
entering into a de facto relationship with each other make a written
agreement with respect to any of the matters mentioned in subsection (2)
in the event of the breakdown of the de facto relationship; and
(b) at the time of the making of the
agreement, the people are not the spouse parties to any other Part VIIIAB
financial agreement that is binding on them with respect to any of those
matters; and
(c) the agreement is expressed to be
made under this section;
the agreement is a Part VIIIAB financial
agreement. The people may make the Part VIIIAB financial agreement
with one or more other people.
(2) The matters referred to in
paragraph (1)(a) are the following:
(a) how all or any of the:
(i) property; or
(ii) financial resources;
of either or both of the spouse
parties at the time when the agreement is made, or at a later time and during
the de facto relationship, is to be distributed;
(b) the maintenance of either of the
spouse parties.
(3) A Part VIIIAB financial agreement
made as mentioned in subsection (1) may also contain matters incidental or
ancillary to those mentioned in subsection (2).
(4) A Part VIIIAB financial agreement
(the new agreement) made as mentioned in subsection (1) may
terminate a previous Part VIIIAB financial agreement (however made) if all
of the parties to the previous agreement are parties to the new agreement.
90UC
Financial agreements during de facto relationship
(1) If:
(a) while in a de facto
relationship, the parties to the de facto relationship make a written
agreement about any of the matters mentioned in subsection (2) in the
event of the breakdown of the de facto relationship; and
(b) at the time of the making of the
agreement, the parties to the de facto relationship are not the spouse
parties to any other Part VIIIAB financial agreement that is binding on
them with respect to any of those matters; and
(c) the agreement is expressed to be
made under this section;
the agreement is a Part VIIIAB financial
agreement. The parties to the de facto relationship may make the
Part VIIIAB financial agreement with one or more other people.
(2) The matters referred to in
paragraph (1)(a) are the following:
(a) how all or any of the:
(i) property; or
(ii) financial resources;
of either or both of the spouse
parties at the time when the agreement is made, or at a later time and during
the de facto relationship, is to be distributed;
(b) the maintenance of either of the
spouse parties.
(3) A Part VIIIAB financial agreement
made as mentioned in subsection (1) may also contain matters incidental or
ancillary to those mentioned in subsection (2).
(4) A
Part VIIIAB financial agreement (the new agreement) made as
mentioned in subsection (1) may terminate a previous Part VIIIAB
financial agreement (however made) if all of the parties to the previous
agreement are parties to the new agreement.
90UD
Financial agreements after breakdown of a de facto relationship
(1) If:
(a) after the breakdown of a
de facto relationship, the parties to the former de facto
relationship make a written agreement with respect to any of the matters
mentioned in subsection (2); and
(b) at the time of the making of the
agreement, the parties to the former de facto relationship are not the
spouse parties to any other Part VIIIAB financial agreement that is
binding on them with respect to any of those matters; and
(c) the agreement is expressed to be
made under this section;
the agreement is a Part VIIIAB financial
agreement. The parties to the former de facto relationship may
make the Part VIIIAB financial agreement with one or more other people.
(2) The matters referred to in
paragraph (1)(a) are the following:
(a) how all or any of the:
(i) property; or
(ii) financial resources;
that either or both of the
spouse parties had or acquired during the former de facto relationship is
to be distributed;
(b) the maintenance of either of the
spouse parties.
(3) A Part VIIIAB financial agreement
made as mentioned in subsection (1) may also contain matters incidental or
ancillary to those mentioned in subsection (2).
(4) A Part VIIIAB financial agreement
(the new agreement) made as mentioned in subsection (1) may
terminate a previous Part VIIIAB financial agreement (however made) if all
of the parties to the previous agreement are parties to the new agreement.
90UE
Agreements made in non‑referring States that become Part VIIIAB
financial agreements
How State agreements can become Part VIIIAB
financial agreements
(1) This section applies if:
(a) 2 people (the couple)
have made a written agreement, signed by both of them, with respect to any of
the matters (the eligible agreed matters) mentioned
in subsection (3); and
(b) the agreement was made under a non‑referring
State de facto financial law; and
(c) either:
(i) a court could not,
because of that law, make an order under that law that is inconsistent with the
agreement with respect to any of the eligible agreed matters; or
(ii) a court could not,
because of that law, make an order under that law that is with respect to any
of the eligible agreed matters to which the agreement applies; and
(d) at the time the agreement was
made, the members of the couple were not the spouse parties to any
Part VIIIAB financial agreement that is binding on them with respect to
any of the eligible agreed matters; and
(e) at a later time (the transition
time), the couple’s circumstances change so that:
(i) if the de facto
relationship has not broken down—sections 90SB, 90SD and 90SK would not
prevent a court from making an order or declaration under this Part in relation
to the eligible agreed matters if the de facto relationship were to break
down; or
(ii) if the de facto
relationship has broken down—sections 90SB, 90SD and 90SK do not prevent a
court from making an order or declaration under this Part in relation to the
eligible agreed matters; and
(f) immediately before the transition
time:
(i) the agreement was in
force under the non‑referring State de facto financial law; and
(ii) the couple were not
married to each other.
Paragraph (a) extends to agreements made before the
commencement of this section, and to agreements made with one or more other
people.
Note 1: This section extends to agreements made in
contemplation of a de facto relationship, during a de facto
relationship or after a de facto relationship has broken down.
Note 2: Part 2 of
Schedule 1 to the Family Law Amendment (De Facto Financial
Matters and Other Measures) Act 2008 deems
certain agreements, made under a law of a State that is or becomes a
participating jurisdiction, or made under a law of a Territory, to be
Part VIIIAB financial agreements.
(2) For the purposes of this Act, the
agreement is taken, on and after the transition time, to be a Part VIIIAB
financial agreement to the extent that the agreement deals with:
(a) the eligible agreed matters; and
(b) matters incidental or ancillary to
the eligible agreed matters.
Note: This means that, after the transition time,
the agreement can only be enforced, varied, terminated or otherwise set aside
under this Act.
Eligible agreed matters
(3) The matters referred to in
paragraph (1)(a) are the following:
(a) how all or any of the:
(i) property; or
(ii) financial resources;
of either member, or both members,
of the couple at the time when the agreement is made, or at a later time and
during a de facto relationship between them, is to be distributed;
(b) the maintenance of either member
of the couple;
in the event of the breakdown of a de facto relationship
between them, or in relation to a de facto relationship between them that
has broken down, as the case requires.
(4) For the purposes of
paragraph (1)(c), disregard whether the non‑referring State
de facto financial law permits the court to make such an order if the
court varies or sets aside the agreement.
90UF
Need for separation declaration for certain provisions of financial agreement
to take effect
(1) A Part VIIIAB financial agreement
that is binding on the parties to the agreement, to the extent to which it
deals with how, in the event of the breakdown of the de facto
relationship, all or any of the property or financial resources of either or
both of the spouse parties:
(a) at the time when the agreement is
made; or
(b) at a later time and during the
de facto relationship;
are to be dealt with, is of no force or effect until a
separation declaration is made.
Note: Before the separation declaration is made, the
financial agreement will be of force and effect in relation to the other
matters it deals with (except for any matters covered by section 90UG).
(2) Subsection (1) ceases to apply if
either or both of the spouse parties die.
Note: This means the financial agreement will be of
force and effect in relation to the matters mentioned in subsection (1)
from the time of the death(s).
Requirements for a valid separation declaration
(3) A separation declaration is a written
declaration that complies with subsections (4) and (5), and may be
included in the Part VIIIAB financial agreement to which it relates.
(4) The declaration must be signed by at
least one of the spouse parties to the Part VIIIAB financial agreement.
(5) The
declaration must state that:
(a) the spouse parties lived in a
de facto relationship; and
(b) the spouse parties have separated
and are living separately and apart at the declaration time; and
(c) in the opinion of the spouse
parties making the declaration, there is no reasonable likelihood of
cohabitation being resumed.
Meaning of declaration time
(6) In this section:
declaration time means the time when the
declaration was signed by a spouse party to the Part VIIIAB financial
agreement.
90UG
Whether or when certain other provisions of financial agreements take effect
A Part VIIIAB financial agreement
that is binding on the parties to the agreement, to the extent to which it
provides for matters covered by subsection 90UB(3) or 90UC(3) or paragraph
90UE(2)(b), is of no force or effect unless and until the de facto
relationship breaks down.
90UH
Requirements with respect to provisions in financial agreements relating to the
maintenance of a party or a child or children
(1) A provision of a Part VIIIAB
financial agreement that relates to the maintenance of a spouse party to the
agreement or a child or children is void unless the provision specifies:
(a) the party, or the child or
children, for whose maintenance provision is made; and
(b) the amount provided for, or the
value of the portion of the relevant property attributable to, the maintenance
of the party, or of the child or each child, as the case may be.
Note: While Part VIIIAB financial agreements
are not made with respect to child maintenance, provisions about child
maintenance could be included in the same document for child support (or other
non‑Part VIIIAB) purposes.
(2) Subsection (1) does not apply in
relation to a Part VIIIAB financial agreement covered by
section 90UE.
90UI
Certain provisions in financial agreements
(1) No provision of a Part VIIIAB
financial agreement excludes or limits the power of a court to make an order
under Division 2 in relation to the maintenance of a party to the
agreement if subsection (2) applies.
(2) This subsection applies if the court is
satisfied that, when the agreement came into effect, the circumstances of the
party were such that, taking into account the terms and effect of the
agreement, the party was unable to support himself or herself without an income
tested pension, allowance or benefit.
(3) To avoid doubt, a provision in a
Part VIIIAB financial agreement:
(a) made as mentioned in subsection
90UB(1), 90UC(1) or 90UD(1); or
(b) covered by section 90UE;
that provides for property or financial resources owned by
a spouse party to the agreement to continue in the ownership of that party is
taken, for the purposes of that subsection or section, to be a provision with
respect to how the property or financial resources are to be distributed.
90UJ
When financial agreements are binding
(1) A Part VIIIAB financial agreement
(other than an agreement covered by section 90UE) is binding on the
parties to the agreement if, and only if:
(a) the agreement is signed by all
parties; and
(b) the agreement contains, in
relation to each spouse party to the agreement, a statement to the effect that
the party to whom the statement relates has been provided, before the agreement
was signed by him or her, as certified in an annexure to the agreement, with
independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(c) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(d) the agreement has not been
terminated and has not been set aside by a court; and
(e) after the agreement is signed, the
original agreement is given to one of the spouse parties and a copy is given to
each of the other parties.
Note: For the manner in which the contents of a
financial agreement may be proved, see section 48 of the Evidence Act
1995.
(2) A Part VIIIAB financial agreement
covered by section 90UE is binding on the parties to the agreement if, and
only if, the agreement has not been terminated and has not been set aside by a
court.
(3) A Part VIIIAB financial agreement
ceases to be binding if, after making the agreement, the parties to the
agreement marry each other.
(4) A court may make such orders for the
enforcement of a Part VIIIAB financial agreement that is binding on the
parties to the agreement as it thinks necessary.
90UK
Effect of death of party to financial agreement
A Part VIIIAB financial agreement
that is binding on the parties to the agreement continues to operate despite
the death of a party to the agreement and operates in favour of, and is binding
on, the legal personal representative of that party.
Note: If the parties are still in the de facto
relationship when one of them dies, the de facto relationship is not taken
to have broken down for the purposes of enforcing the matters mentioned in the
financial agreement (see the definition of breakdown in
subsection 4(1)).
90UL
Termination of financial agreement
(1) The parties to a Part VIIIAB
financial agreement may terminate the agreement for the purposes of this Act
only by:
(a) including a provision to that
effect in another Part VIIIAB financial agreement as mentioned in
subsection 90UB(4), 90UC(4) or 90UD(4); or
(b) making a written agreement (a Part VIIIAB
termination agreement) to that effect.
(2) A
Part VIIIAB termination agreement is binding on the parties if, and only
if:
(a) the
termination agreement is signed by all parties to the Part VIIIAB
financial agreement; and
(b) the termination agreement
contains, in relation to each spouse party, a statement to the effect that the
party to whom the statement relates has been provided, before the termination
agreement was signed by him or her, as certified in an annexure to the
termination agreement, with independent legal advice from a legal practitioner
as to the following matters:
(i) the effect of the
termination agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the termination agreement; and
(c) the annexure to the termination
agreement contains a certificate signed by the person providing the independent
legal advice stating that the advice was provided; and
(d) the termination agreement has not
been set aside by a court; and
(e) after the termination agreement is
signed, the original termination agreement is given to one of the spouse
parties and a copy is given to each of the other parties.
(3) A court may, on an application by:
(a) a person who was a party to the
Part VIIIAB financial agreement; or
(b) any other interested person;
make such order or orders (including an order for the
transfer of property) as it considers just and equitable for the purpose of
preserving or adjusting the rights of:
(c) persons who were parties to the
Part VIIIAB financial agreement; and
(d) any other interested persons.
Note: For the manner in which the contents of a
Part VIIIAB financial agreement may be proved, see section 48 of the Evidence
Act 1995.
90UM
Circumstances in which court may set aside a financial agreement or termination
agreement
(1) A court
may make an order setting aside, for the purposes of this Act, a
Part VIIIAB financial agreement or a Part VIIIAB termination agreement
if, and only if, the court is satisfied that:
(a) the agreement was obtained by
fraud (including non‑disclosure of a material matter); or
(b) a party to the agreement entered
into the agreement:
(i) for the purpose, or
for purposes that included the purpose, of defrauding or defeating a creditor
or creditors of the party; or
(ii) with reckless
disregard of the interests of a creditor or creditors of the party; or
(c) a party (the agreement party)
to the agreement entered into the agreement:
(i) for the purpose, or
for purposes that included the purpose, of defrauding another person who is a
party to a de facto relationship (the other de facto
relationship) with a spouse party; or
(ii) for the purpose, or
for purposes that included the purpose, of defeating the interests of that
other person in relation to any possible or pending application for an order
under section 90SM, or a declaration under section 90SL, in relation
to the other de facto relationship; or
(iii) with reckless
disregard of those interests of that other person; or
(d) a party (the agreement party)
to the agreement entered into the agreement:
(i) for the purpose, or
for purposes that included the purpose, of defrauding another person who is a
party to a marriage with a spouse party; or
(ii) for the purpose, or
for purposes that included the purpose, of defeating the interests of that
other person in relation to any possible or pending application for an order
under section 79, or a declaration under section 78, in relation to
the marriage (or void marriage); or
(iii) with reckless
disregard of those interests of that other person; or
(e) the agreement is void, voidable or
unenforceable; or
(f) in the circumstances that have
arisen since the agreement was made it is impracticable for the agreement or a
part of the agreement to be carried out; or
(g) since the making of the agreement,
a material change in circumstances has occurred (being circumstances relating
to the care, welfare and development of a child of the de facto relationship)
and, as a result of the change, the child or, if the applicant has caring
responsibility for the child (as defined in subsection (4)), a party to
the agreement will suffer hardship if the court does not set the agreement
aside; or
(h) in respect of the making of a
Part VIIIAB financial agreement—a party to the agreement engaged in
conduct that was, in all the circumstances, unconscionable; or
(i) a payment flag is operating under
Part VIIIB on a superannuation interest covered by the agreement and there
is no reasonable likelihood that the operation of the flag will be terminated
by a flag lifting agreement under that Part; or
(j) the agreement covers at least one
superannuation interest that is an unsplittable interest for the purposes of Part VIIIB;
or
(k) if the agreement is a
Part VIIIAB financial agreement covered by
section 90UE—subsection (5) applies.
Note: For child of a de facto
relationship, see section 90RB.
(2) For the purposes of
paragraph (1)(b), creditor, in relation to a party to the
agreement, includes a person who could reasonably have been foreseen by the
party as being reasonably likely to become a creditor of the party.
(3) For the purposes of the application of
subparagraph (1)(c)(ii) to a Part VIIIAB financial agreement covered
by section 90UE:
(a) the reference in that subparagraph
to an order under section 90SM is taken to include a reference to an order
(however described) under a corresponding provision (if any) of the non‑referring
State de facto financial law concerned; and
(b) the reference in that subparagraph
to a declaration under section 90SL is taken to include a reference to a
declaration (however described) under a corresponding provision (if any) of the
non‑referring State de facto financial law concerned.
(4) For the purposes of
paragraph (1)(g), a person has caring responsibility for a
child if:
(a) the person is a parent of the
child with whom the child lives; or
(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.
(5) This subsection applies if:
(a) at least one of the spouse parties
to the agreement was not provided, before signing the agreement, with
independent legal advice from a legal practitioner about the following:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; or
(b) if the advice was provided to one
of the spouse parties—a signed statement by the legal practitioner stating that
the advice was provided was neither:
(i) included in, or
attached to, the agreement; or
(ii) given to the party;
and it would be unjust and inequitable, having regard to
the eligible agreed matters (within the meaning of section 90UE) for the
agreement, if the court does not set the agreement aside.
(6) A court may, on an application by a
person who was a party to the Part VIIIAB financial agreement that has
been set aside, or by any other interested person, make such order or orders
(including an order for the transfer of property) as it considers just and
equitable for the purpose of preserving or adjusting the rights of persons who
were parties to that financial agreement and any other interested persons.
(7) An order under subsection (1) or (6)
may, after the death of a party to the proceedings in which the order was made,
be enforced on behalf of, or against, as the case may be, the estate of the
deceased party.
(8) If a party to proceedings under this
section dies before the proceedings are completed:
(a) the proceedings may be continued
by or against, as the case may be, the legal personal representative of the
deceased party and the applicable Rules of Court may make provision in relation
to the substitution of the legal personal representative as a party to the
proceedings; and
(b) if the court is of the opinion:
(i) that it would have
exercised its powers under this section if the deceased party had not died; and
(ii) that it is still
appropriate to exercise those powers;
the court may make any order
that it could have made under subsection (1) or (6); and
(c) an order under paragraph (b)
may be enforced on behalf of, or against, as the case may be, the estate of the
deceased party.
(9) The court must not make an order under
this section if the order would:
(a) result in the acquisition of
property from a person otherwise than on just terms; and
(b) be invalid because of paragraph
51(xxxi) of the Constitution.
For this purpose, acquisition of property
and just terms have the same meanings as in paragraph 51(xxxi) of
the Constitution.
90UN
Validity, enforceability and effect of financial agreements and termination
agreements
The question whether a Part VIIIAB
financial agreement or a Part VIIIAB termination agreement is valid,
enforceable or effective is to be determined by the court according to the
principles of law and equity that are applicable in determining the validity,
enforceability and effect of contracts and purported contracts, and, in
proceedings relating to such an agreement, the court:
(a) subject to paragraph (b), has
the same powers, may grant the same remedies and must have the same regard to
the rights of third parties as the High Court has, may grant and is required to
have in proceedings in connection with contracts or purported contracts, being
proceedings in which the High Court has original jurisdiction; and
(b) has power to make an order for the
payment, by a party to the agreement to another party to the agreement, of
interest on an amount payable under the agreement, from the time when the
amount became or becomes due and payable, at a rate not exceeding the rate
prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of, making
an order or orders under paragraph (a) or (b), may order that the
agreement, or a specified part of the agreement, be enforced as if it were an
order of the court.
Division 5—Proceeds of crime and forfeiture
90VA
Notification of proceeds of crime orders etc.
(1) If:
(a) a person makes an application for
an order, under this Part, with respect to:
(i) the property of the
parties to a de facto relationship or either of them; or
(ii) the maintenance of a
party to a de facto relationship; and
(b) the person knows that the property
of the parties to the de facto relationship or either of them is covered
by:
(i) a proceeds of crime
order; or
(ii) a forfeiture
application;
the person must:
(c) disclose in the application the
proceeds of crime order or forfeiture application; and
(d) give to the court a sealed copy of
that order or application.
(2) A person who does not comply with
subsection (1) commits an offence punishable, on conviction, by a fine not
exceeding 50 penalty units.
(3) If:
(a) a person is a party to
de facto property settlement or maintenance proceedings under this Part;
and
(b) the person is notified by the DPP
that the property of the parties to the de facto relationship or either of
them is covered by:
(i) a proceeds of crime order;
or
(ii) a forfeiture
application;
the person must notify the Registry Manager in
writing of the proceeds of crime order or forfeiture application.
(4) A person who does not comply with
subsection (3) commits an offence punishable, on conviction, by a fine not
exceeding 50 penalty units.
90VB
Court to stay property or maintenance proceedings affected by proceeds of crime
orders etc.
(1) A court in which property settlement, or maintenance proceedings, are pending
must stay those proceedings if notified under section 90VA in
relation to the proceedings.
(2) The
court may, before staying proceedings under subsection (1), invite or
require the DPP to make submissions relating to staying the proceedings.
(3) A court must, on the application of the
DPP, stay de facto property settlement or maintenance proceedings under
this Part if the property of the parties to the de facto relationship or
either of them is covered by:
(a) a proceeds of crime order; or
(b) a forfeiture application.
(4) A court must notify the DPP if the court
stays de facto property settlement or maintenance proceedings under
subsection (1) or (3).
(5) The DPP must notify the Registry Manager
if:
(a) a proceeds of crime order ceases
to be in force; or
(b) a forfeiture application is
finally determined.
(6) For the purposes of subsection (5),
a forfeiture application is taken to be finally determined when:
(a) the application is withdrawn; or
(b) if the application is
successful—the resulting forfeiture order comes into force; or
(c) if the application is
unsuccessful—the time within which an appeal can be made has expired and any
appeals have been finally determined or otherwise disposed of.
90VC
Lifting a stay
(1) A court that stayed the de facto
property settlement or maintenance proceedings under section 90VB must
wholly or partially lift the stay if:
(a) either party to the proceedings
makes an application for the stay to be lifted and the DPP consents to such an
application; or
(b) the DPP makes an application for
the stay to be lifted.
(2) A court that stayed the de facto
property settlement or maintenance proceedings under section 90VB may, on
its own motion, wholly or partially lift the stay if the DPP consents to such a
motion.
(3) Giving the Registry Manager written
notice of the DPP’s consent under this section is taken to be the giving of
that consent, unless the court requires the DPP to appear in the proceedings.
The notice may be given by the DPP or by a party to the proceedings.
90VD Intervention by DPP
(1) The DPP may intervene in any
de facto property settlement or maintenance proceedings in relation to
which a court is notified under section 90VA, or in any proceedings under
section 90VB or 90VC in which the DPP is not already a party.
(2) If the DPP intervenes, the DPP is taken
to be a party to the proceedings with all the rights, duties and liabilities of
a party.
Division 6—Instruments not liable to duty
90WA
Certain instruments not liable to duty
(1) None of the following is subject to any
duty or charge under any law of a State or Territory or any law of the
Commonwealth that applies only in relation to a Territory:
(a) a deed or other instrument
executed by a person for the purposes of, or in accordance with, an order made
under Division 2;
(b) a Part VIIIAB financial
agreement;
(c) a Part VIIIAB termination
agreement;
(d) a deed or other instrument
executed by a person for the purposes of, or in accordance with, an order or
Part VIIIAB financial agreement made under Division 4.
(2) Subsection (1) does not apply to a
liability to pay duty or charge (if any) in relation to a Part VIIIAB
financial agreement covered by section 90UE if the liability arises before
the transition time (within the meaning of that section) for the agreement.
(3) Despite any State law, a failure to
discharge a liability covered by subsection (2) in relation to an
agreement has no effect for the purposes of this Act. In particular, the
failure does not affect whether the agreement may be presented in evidence in a
court for the purposes of this Act.
Part VIIIB—Superannuation interests
Division 1—Preliminary
Subdivision A—Scope of this Part
90MA
Object of this Part
The object of this Part is to allow
certain payments (splittable payments) in respect of a superannuation interest
to be allocated between:
(a) the parties to a marriage; or
(b) the parties to a de facto
relationship;
either by agreement or by court order.
90MB
This Part overrides other laws, trust deeds etc.
(1) Subject to subsection (3), this Part
has effect despite anything to the contrary in any of the following instruments
(whether made before or after the commencement of this Part):
(a) any other law of the Commonwealth;
(b) any law of a State or Territory;
(c) anything in a trust deed or other
instrument.
(2) Without limiting subsection (1),
nothing done in compliance with this Part by the trustee of an eligible
superannuation plan is to be treated as resulting in a contravention of a law
or instrument referred to in subsection (1).
(3) This Part has effect subject to the Superannuation
(Unclaimed Money and Lost Members) Act 1999.
90MC
Extended meanings of matrimonial cause and de facto financial cause
(1) A superannuation interest is to be
treated as property for the purposes of paragraph (ca) of the definition
of matrimonial cause in section 4.
(2) A superannuation interest is to be
treated as property for the purposes of paragraph (c) of the definition of
de facto financial cause in section 4.
Subdivision B—Interpretation
90MD
Definitions
In this Part, unless the contrary
intention appears:
approved deposit fund has the same meaning as
in the SIS Act.
business day means any day except:
(a) a Saturday or Sunday; or
(b) a day that is a public holiday in
the place concerned.
declaration time, in relation to a separation
declaration, means the time when the declaration was signed by a spouse (or
last signed by a spouse, if both spouses have signed).
Note: If a spouse has died, the spouse’s legal
personal representative may sign a declaration (see subsection 90MP(2)).
eligible superannuation plan means any of the
following:
(a) a superannuation fund within the
meaning of the SIS Act;
(b) an approved deposit fund;
(c) an RSA;
(d) an account within the meaning of
the Small Superannuation Accounts Act 1995;
(e) a superannuation annuity (within
the meaning of the Income Tax Assessment Act 1997).
flagging order means an order mentioned in
subsection 90MU(1).
flag lifting agreement has the meaning given
by section 90MN.
in force, in relation to an agreement, has
the meaning given by section 90MG.
interest includes a prospective or contingent
interest, and also includes an expectancy.
marriage includes a void marriage.
member, in relation to an eligible
superannuation plan, includes a beneficiary (including a contingent or
prospective beneficiary).
member spouse, in relation to a
superannuation interest, means the spouse who has the superannuation interest.
non‑member spouse, in relation to a
superannuation interest, means the spouse who is not the member spouse in
relation to that interest.
operative time:
(a) in relation to a payment split
under a superannuation agreement or flag lifting agreement—has the meaning
given by section 90MI; or
(b) in relation to a payment flag
under a superannuation agreement—has the meaning given by section 90MK or
paragraph 90MLA(2)(c) as appropriate; or
(c) in relation to a payment split
under a court order—means the time specified in the order.
payment flag means:
(a) the application of section 90ML
in relation to a superannuation interest; or
(b) the application of a flagging
order in relation to a superannuation interest.
payment split means:
(a) the application of section 90MJ
in relation to a splittable payment; or
(b) the application of a splitting
order in relation to a splittable payment.
percentage‑only interest means a
superannuation interest prescribed by the regulations for the purposes of this
definition.
regulated superannuation fund has the same
meaning as in the SIS Act.
reversionary beneficiary means a person who
becomes entitled to a benefit in respect of a superannuation interest of a
spouse, after the spouse dies.
reversionary interest has the meaning given
by section 90MF.
RSA means a retirement savings account within
the meaning of the Retirement Savings Accounts Act 1997.
secondary government trustee means a trustee
that:
(a) is the Commonwealth, a State or
Territory; and
(b) is a trustee only because of the
operation of section 90MDA.
separation declaration has the meaning given
by section 90MP.
SIS Act means the Superannuation Industry
(Supervision) Act 1993.
splittable payment has the meaning given by
section 90ME.
splitting order means an order mentioned in
subsection 90MT(1).
spouse means:
(a) a party to a marriage; or
(b) a party to a de facto
relationship.
superannuation agreement has the meaning
given by sections 90MH and 90MHA.
superannuation interest means an interest
that a person has as a member of an eligible superannuation plan, but does not
include a reversionary interest.
trustee, in relation to an eligible
superannuation plan, means:
(a) if the plan is a fund that has a
trustee (within the ordinary meaning of that word)—the trustee of the plan; or
(b) if paragraph (a) does not
apply and a person is identified in accordance with the regulations as the
trustee of the plan for the purposes of this definition—the person identified
in accordance with the regulations; or
(c) in any other case—the person who
manages the plan.
unflaggable interest means a superannuation
interest prescribed by the regulations for the purposes of this definition.
unsplittable interest means a superannuation
interest prescribed by the regulations for the purposes of this definition.
90MDA
Extended meaning of trustee
If a
person who is not the trustee of an eligible superannuation plan nevertheless
has the power to make payments to members of the plan, then references in this
Part to the trustee of the plan include references to that person.
90ME
Splittable payments
(1) Each of the following payments in respect
of a superannuation interest of a spouse is a splittable payment:
(a) a payment to the spouse;
(b) a payment to another person for
the benefit of the spouse;
(c) a payment to the legal personal
representative of the spouse, after the death of the spouse;
(d) a payment to a reversionary
beneficiary, after the death of the spouse;
(e) a payment to the legal personal
representative of a reversionary beneficiary covered by paragraph (d),
after the death of the reversionary beneficiary.
(2) A payment is not a splittable payment if
it is prescribed by the regulations for the purposes of this subsection. The
regulations may prescribe a payment either:
(a) generally (that is, for the
purposes of all payment splits in respect of a superannuation interest); or
(b) only for the purposes of applying
this Part to a particular payment split in respect of a superannuation
interest.
(3) If a payment is made to another person
for the benefit of 2 or more persons who include the spouse, then the payment
is nevertheless a splittable payment, to the extent to which it is paid for the
benefit of the spouse.
90MF
Reversionary interest
For the
purposes of this Part, a person’s interest in an eligible superannuation plan
is a reversionary interest at any time while the person’s
entitlement to benefits in respect of the interest is conditional on the death
of another person who is still living.
90MG
Meaning of in force
(1) A financial agreement is in force
at any time when it is binding on the parties in accordance with section 90G.
(1A) A Part VIIIAB financial agreement is in
force at any time when it is binding on the parties in accordance with
section 90UJ.
(2) A superannuation agreement is in
force at any time when the relevant financial agreement, or relevant
Part VIIIAB financial agreement, is in force.
(3) A flag lifting agreement is in
force if, and only if:
(a) it meets the requirements set out
in subsection 90MN(3); and
(b) it has not been set aside by a
court and has not been terminated.
Division 2—Payment splitting or flagging by agreement
Subdivision A—Superannuation agreements
90MH
Superannuation agreement to be included in financial agreement if about a
marriage
(1) A financial agreement under Part VIIIA
may include an agreement that deals with superannuation interests of either or
both of the spouse parties to the agreement as if those interests were
property. It does not matter whether or not the superannuation interests are in
existence at the time the agreement is made.
(2) The part of the financial agreement that
deals with superannuation interests is a superannuation agreement
for the purposes of this Part.
(3) A superannuation agreement has effect
only in accordance with this Part. In particular, it cannot be enforced under
Part VIIIA.
(4) A superannuation agreement that is
included in a financial agreement under section 90B (in contemplation of
marriage) has no effect unless and until the spouse parties marry.
(5) In applying sections 90B, 90C and
90D for the purposes of this Division, a superannuation interest of a spouse
party to a financial agreement is treated as being acquired at the time when
that party first becomes a member of the eligible superannuation plan in
respect of that interest.
90MHA
Superannuation agreement to be included in Part VIIIAB financial agreement
if about a de facto relationship
(1) A Part VIIIAB financial agreement
may include an agreement that deals with superannuation interests of either or
both of the spouse parties to the agreement as if those interests were
property. It does not matter whether or not the superannuation interests are in
existence at the time the agreement is made.
(2) The part of the Part VIIIAB
financial agreement that deals with superannuation interests is a superannuation
agreement for the purposes of this Part.
(3) A superannuation agreement has effect
only in accordance with this Part. In particular, it cannot be enforced under
Part VIIIAB.
(4) A superannuation agreement that is
included in a Part VIIIAB financial agreement under section 90UB (in
contemplation of a de facto relationship) has no effect unless and until
the spouse parties enter into that de facto relationship.
(5) In applying sections 90UB, 90UC,
90UD and 90UE for the purposes of this Division, a superannuation interest of a
spouse party to a Part VIIIAB financial agreement is treated as being
acquired at the time when that party first becomes a member of the eligible
superannuation plan in respect of that interest.
Subdivision B—Payment splitting
90MI
Operative time for payment split
(1) The operative time for a
payment split under a superannuation agreement or flag lifting agreement is the
beginning of the fourth business day after the day on which a copy of the
agreement is served on the trustee, accompanied by:
(a) if the parties are divorced—a copy
of the divorce order that has terminated the marriage; and
(aa) if, in the case of a payment split
under a superannuation agreement:
(i) the parties are not
divorced; and
(ii) a separation
declaration is not part of the superannuation agreement;
a separation declaration; and
(b) if the agreement specifies a
method for calculating a base amount—a document setting out the amount
calculated using that method; and
(c) if a form of declaration is
prescribed for the purposes of this paragraph—a declaration in that form.
Note: The base amount is used to calculate the
entitlement of the non‑member spouse under the regulations.
(2) For the purposes of subsection (1),
the separation declaration must have a declaration time that is not more than
28 days before the service on the trustee.
90MJ
Payment split under superannuation agreement or flag lifting agreement
(1) This section applies to a superannuation
interest if:
(a) the interest is identified in a
superannuation agreement or flag lifting agreement; and
(b) if the interest is a percentage‑only
interest—the agreement does one of the following:
(i) it specifies a
percentage that is to apply for the purposes of this sub‑paragraph;
(ii) it specifies a percentage
that is to apply to all splittable payments in respect of the interest; and
(c) if the interest is not a
percentage‑only interest—the agreement does one of the following:
(i) it specifies an amount
as a base amount in relation to the interest for the purposes of this Part;
(ii) it specifies a method
by which such a base amount can be calculated at the time when the agreement is
served on the trustee under section 90MI;
(iii) it specifies a
percentage that is to apply to all splittable payments in respect of the
interest; and
(d) the agreement is in force at the
operative time; and
(da) if the agreement relates to a
marriage—the marriage is broken down at the operative time; and
(db) if the agreement relates to a
de facto relationship—the de facto relationship is broken down at the
operative time; and
(e) the
interest is not an unsplittable interest.
Note: The base amount is used to calculate the
entitlement of the non‑member spouse under the regulations.
(2) The following provisions begin to apply
to the interest at the operative time.
(3) Whenever a splittable payment becomes
payable in respect of the interest:
(a) the non‑member spouse is
entitled to be paid the amount (if any) that is calculated under subsection (4);
and
(b) there is a corresponding reduction
in the entitlement of the person to whom the splittable payment would have been
made but for the payment split.
(4) The amount is calculated as follows:
(a) if the agreement specifies a
percentage as mentioned in subparagraph (1)(b)(ii) or subparagraph (1)(c)(iii)—the
amount is calculated by applying the specified percentage to the splittable
payment; or
(b) otherwise—the amount is calculated
in accordance with the regulations.
(5) Subject to section 90MV, this
section continues to apply to the superannuation interest even if the agreement
referred to in subsection (1) later ceases to be in force.
Subdivision C—Payment flagging
90MK
Operative time for payment flag
(1) The operative time for a
payment flag under a superannuation agreement is:
(a) the service time, if the eligible
superannuation plan is a self‑managed superannuation fund; or
(b) otherwise, the beginning of the
fourth business day after the day on which the service time occurs.
(2) In this
section:
self‑managed superannuation fund has
the same meaning as in the SIS Act.
service time means the time when a copy of
the agreement is served on the trustee, accompanied by:
(a) if the parties are divorced—a copy
of the divorce order that has terminated the marriage; and
(aa) if the parties are not divorced—a
separation declaration with a declaration time that is not more than 28 days
before the service on the trustee; and
(b) if a form of declaration is
prescribed for the purposes of this paragraph—a declaration in that form.
90ML
Payment flag
(1) This section applies to a superannuation
interest if:
(a) the interest is identified in a
superannuation agreement; and
(b) the agreement provides that the
interest is to be subject to a payment flag under this Part; and
(c) the agreement is in force at the
operative time; and
(d) the interest is not an unflaggable
interest.
(2) A payment flag starts to operate on the
superannuation interest at the operative time and continues to operate until
either:
(a) a court terminates the operation
of the payment flag by an order mentioned in section 90MM; or
(b) a flag lifting agreement is served
on the trustee as mentioned in section 90MI in respect of the
superannuation interest.
(3) If a payment flag ceases to operate
because of paragraph (2)(b), the cessation is not affected by a later
termination of the flag lifting agreement.
(4) While a
payment flag is operating on a superannuation interest, the trustee must not
make any splittable payment to any person in respect of the interest.
Penalty: 50 penalty units.
Note: The penalty for a body corporate is 250
penalty units. See subsection 4B(3) of the Crimes Act 1914.
(4A) Subsection (4) does not apply if the
splittable payment is made in circumstances in which section 90MLA applies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal
Code).
(5) If a splittable payment becomes payable
in respect of a superannuation interest while a payment flag is operating, the
trustee must, within 14 days after it became payable, give written notice to
the member spouse and the non‑member spouse.
Penalty: 50 penalty units.
Note: The penalty for a body corporate is 250
penalty units. See subsection 4B(3) of the Crimes Act 1914.
(6) Subsection (5) does not apply if the
trustee has previously given a notice under that subsection, for an earlier
splittable payment, in respect of the payment flag.
(7) If either spouse dies while a payment
flag is operating:
(a) the payment flag nevertheless
continues to operate; and
(b) the legal personal representative
of the deceased spouse has all the rights the deceased spouse would have had in
respect of the payment flag.
Note: The rights of the legal personal
representative under paragraph (b) include the right to enter into a flag
lifting agreement under section 90MN.
90MLA
Some splittable payments payable if payment flag operating
(1) This section applies if:
(a) a superannuation interest (original
interest) a person has in an eligible superannuation plan (old
ESP) is identified in a superannuation agreement; and
(b) a payment flag under section 90ML
is operating on the original interest; and
(c) a splittable payment is made by
the trustee of the old ESP to the trustee of another eligible superannuation
plan (new ESP) in respect of the original interest as part of a
successor fund transfer.
(2) If this
section applies, then:
(a) the new interest in the new ESP is
taken to be the original interest identified in the superannuation agreement;
and
(b) the payment flag operates on the
new interest; and
(c) despite section 90MK, the
operative time for the payment flag in respect of the new interest is the time
that the payment to the trustee of the new ESP is made.
(3) In this section:
successor fund transfer means the transfer of
a person’s superannuation interest in the old ESP in circumstances where:
(a) the new ESP confers on the person,
in relation to the new interest, equivalent rights to the rights the person had
in relation to the original interest; and
(b) before the transfer, the trustee
of the new ESP had agreed with the trustee of the old ESP to the conferral of
such rights.
90MM
Payment flag may be terminated by court
(1) If a court makes an order under section 90K
setting aside a financial agreement in respect of which a payment flag is
operating, the court may also make an order terminating the operation of the
flag.
Note: Under section 90MH, a superannuation
agreement must be part of a financial agreement. Therefore, setting aside the
financial agreement also has the effect of setting aside the superannuation
agreement.
(2) If a court makes an order under
section 90UM setting aside a Part VIIIAB financial agreement in
respect of which a payment flag is operating, the court may also make an order
terminating the operation of the flag.
Note: Under section 90MHA, a superannuation
agreement relating to a de facto relationship must be part of a
Part VIIIAB financial agreement. Therefore, setting aside the financial
agreement also has the effect of setting aside the superannuation agreement.
90MN
Flag lifting agreement etc.
(1) At any time when a payment flag is
operating on a superannuation interest, the spouses may make an agreement (a flag
lifting agreement) that either:
(a) provides that the flag is to cease
operating without any payment split; or
(b) specifies an amount, method or
percentage in accordance with subsection 90MJ(1).
(2) If the flag lifting agreement provides
for a payment split, the spouses may at any time make an agreement (a termination
agreement) that terminates the flag lifting agreement.
(3) A flag lifting agreement or termination
agreement has no effect unless it complies with the following requirements:
(a) the agreement must be signed by
both spouses;
(b) for each spouse, the agreement
must contain a statement that the spouse has been provided with independent
legal advice from a legal practitioner as to the legal effect of the agreement;
(c) a certificate must be attached to
the agreement, signed by the person who provided the legal advice and stating
that the advice was provided;
(d) after the agreement is signed by
the spouses, each spouse must be provided with a copy of the agreement.
(4) A court may make an order setting aside a
flag lifting agreement or termination agreement if, and only if, the court is
satisfied as to:
(a) if the spouses are parties to a
marriage—any of the grounds set out in subsection 90K(1) (other than paragraph
90K(1)(f)); or
(b) if the spouses are parties to a
de facto relationship—any of the grounds set out in subsection 90UM(1)
(other than paragraph 90UM(1)(i)).
(5) An order setting aside a flag lifting
agreement also operates to set aside the related financial agreement or
Part VIIIAB financial agreement.
(6) An order under section 90K setting
aside a financial agreement also operates to set aside the related flag lifting
agreement.
(7) An order under section 90UM setting
aside a Part VIIIAB financial agreement also operates to set aside the
related flag lifting agreement.
Subdivision D—Miscellaneous
90MO
Limitation on section 79 or 90SM order
(1) A court cannot make an order under
section 79 or 90SM with respect to a superannuation interest if:
(a) the superannuation interest is
covered by a superannuation agreement that is in force; or
(b) the non‑member spouse has
served a waiver notice on the trustee under section 90MZA in respect of
the interest; or
(c) a payment flag is operating on the
superannuation interest.
Note: Under section 90MM, the court can
terminate the operation of a payment flag in certain circumstances.
(2) Subsection (1) does not prevent the
court taking superannuation interests into account when making an order with
respect to other property of the spouses.
90MP
Separation declaration
(1) A separation declaration is
a written declaration that complies with this section, and may be included in
the superannuation agreement to which it relates.
(2) The declaration must be signed by at
least one of the spouses. For this purpose, if a spouse has died the spouse’s
legal personal representative may sign the declaration.
Spouses who are parties to a marriage
(2A) Subsections (3) to (5) apply if the
spouses are parties to a marriage.
(3) If section 90MQ applies to the
declaration, then the declaration must state that:
(a) the spouses are married; and
(b) the spouses separated and
thereafter lived separately and apart for a continuous period of at least 12
months immediately before the declaration time; and
(c) in the opinion of the spouse (or
spouses) making the declaration, there is no reasonable likelihood of
cohabitation being resumed.
(4) If section 90MQ does not apply to
the declaration, then the declaration must state that the spouses are married,
but are separated, at the declaration time.
(4A) If either or both of the spouses have died,
then the declaration must state:
(a) if section 90MQ applies to
the declaration—that at the most recent time when both spouses were alive:
(i) the spouses were
married; but
(ii) the spouses were
separated and had lived separately and apart for a continuous period of at
least 12 months immediately before that time; or
(b) if section 90MQ does not
apply to the declaration—that the spouses were married, but separated, at the
most recent time when both spouses were alive.
Subsections (3) and (4) have effect subject to this
subsection.
(5) For the purposes of subsections (3)
to (4A), the question whether spouses lived separately and apart for a
continuous period of not less than 12 months before a particular date is to be
determined in the same way as it is under section 48.
(6) In subsections (3) to (5):
separated has the same meaning as in section 48
(as affected by sections 49 and 50).
Spouses who are parties to a de facto relationship
(7) Subsections (8) to (12) apply if the
spouses are parties to a de facto relationship.
(8) If section 90MQ applies to the
declaration, then the declaration must state that:
(a) the spouses lived in a
de facto relationship; and
(b) the spouses separated and thereafter
lived separately and apart for a continuous period of at least 12 months
immediately before the declaration time; and
(c) in the opinion of the spouse (or
spouses) making the declaration, there is no reasonable likelihood of
cohabitation being resumed.
(9) If section 90MQ does not apply to
the declaration, then the declaration must state that the spouses lived in a
de facto relationship, but are separated, at the declaration time.
(10) If either or both of the spouses have
died, then the declaration must state:
(a) if section 90MQ applies to
the declaration—that:
(i) the spouses lived in a
de facto relationship; but
(ii) at the most recent
time when both spouses were alive, the spouses were separated and had lived
separately and apart for a continuous period of at least 12 months immediately
before that time; or
(b) if section 90MQ does not
apply to the declaration—that the spouses:
(i) lived in a
de facto relationship; but
(ii) were separated at the
most recent time when both spouses were alive.
Subsections (8) and (9) have effect subject to this
subsection.
(11) For the purposes of subsection (8)
and paragraph (10)(a), the spouses can have separated and be living
separately and apart even if:
(a) their cohabitation was brought to
an end by the action or conduct of one only of them; or
(b) they have continued to reside in
the same residence; or
(c) either of them has rendered some
household services to the other.
(12) For the purposes of subsection (8)
and paragraph (10)(a), if, after the spouses separated, they resumed
cohabitation on one occasion but, within a period of 3 months after the
resumption of cohabitation, they again separated and thereafter lived
separately and apart up to the relevant time referred to in paragraph (8)(b)
or (10)(a):
(a) the periods of living separately
and apart before and after the period of cohabitation may be aggregated as if
they were one continuous period; but
(b) the period of cohabitation shall
not be taken to be part of the period of living separately and apart.
90MQ
Superannuation interests in excess of low rate cap amount
(1) This section applies to a declaration if:
(a) if both spouses are alive at the
declaration time—at the declaration time; or
(b) otherwise—at the most recent time
when both spouses were alive;
the total withdrawal value for all the superannuation
interests of the member spouse is more than the member spouse’s low rate cap
amount for the income year in which that time occurs.
(2) This section does not apply in the
circumstances (if any) prescribed by the regulations.
(3) In this section:
low rate cap amount has the meaning given by
the Income Tax Assessment Act 1997 (disregarding subsection 307‑345(2)
of that Act and section 307‑345 of the Income Tax (Transitional
Provisions) Act 1997).
total withdrawal value means the amount
determined in accordance with the regulations.
90MR
Enforcement by court order
(1) A court may make such orders as it thinks
necessary for the enforcement of a payment split or payment flag under this
Division.
(2) The question whether a superannuation
agreement or flag lifting agreement is valid, enforceable or effective is to be
determined by the court according to the principles of law and equity that are
applicable in determining the validity, enforceability and effect of contracts
and purported contracts.
(3) Without
limiting subsection (2), in proceedings relating to a superannuation
agreement or flag lifting agreement, the court has the same powers, may grant
the same remedies and must have the same regard to the rights of third parties
as the High Court has, may grant and is required to have in proceedings in
connection with contracts or purported contracts, being proceedings in which
the High Court has original jurisdiction.
Division 3—Payment splitting or flagging by court order
90MS
Order under section 79 or 90SM may
include orders in relation to superannuation interests
(1) In proceedings under section 79 or
90SM with respect to the property of spouses, the court may, in accordance with
this Division, also make orders in relation to superannuation interests of the
spouses.
Note 1: Although the orders are made in accordance with
this Division, they will be made under either section 79 or 90SM.
Therefore they will be generally subject to all the same provisions as other
orders made under that section.
Note 2: Sections 71A and 90MO limit the scope of
section 79.
Note 3: Subsections 44(5) and (6) and
sections 90SB, 90SK and 90MO limit the scope of section 90SM.
(2) A court cannot make an order under
section 79 or 90SM in relation to a superannuation interest except in
accordance with this Part.
90MT
Splitting order
(1) A court, in accordance with section 90MS,
may make the following orders in relation to a superannuation interest (other
than an unsplittable interest):
(a) if the interest is not a
percentage‑only interest—an order to the effect that, whenever a
splittable payment becomes payable in respect of the interest:
(i) the non‑member
spouse is entitled to be paid the amount (if any) calculated in accordance with
the regulations; and
(ii) there is a
corresponding reduction in the entitlement of the person to whom the splittable
payment would have been made but for the order;
(b) an order to the effect that,
whenever a splittable payment becomes payable in respect of the interest:
(i) the non‑member
spouse is entitled to be paid a specified percentage of the splittable payment;
and
(ii) there is a
corresponding reduction in the entitlement of the person to whom the splittable
payment would have been made but for the order;
(c) if the interest is a percentage‑only
interest—an order to the effect that, whenever a splittable payment becomes
payable in respect of the interest:
(i) the non‑member
spouse is entitled to be paid the amount (if any) calculated in accordance with
the regulations by reference to the percentage specified in the order;
(ii) there is a
corresponding reduction in the entitlement of the person to whom the splittable
payment would have been made but for the order;
(d) such other orders as the court
thinks necessary for the enforcement of an order under paragraph (a), (b)
or (c).
(2) Before making an order referred to in subsection (1),
the court must make a determination under paragraph (a) or (b) as follows:
(a) if the regulations provide for the
determination of an amount in relation to the interest, the court must
determine the amount in accordance with the regulations;
(b) otherwise, the court must
determine the value of the interest by such method as the court considers
appropriate.
(2A) The amount determined under paragraph (2)(a)
is taken to be the value of the interest.
(3) Regulations for the purposes of paragraph (2)(a)
may provide for the amount to be determined wholly or partly by reference to
methods or factors that are approved in writing by the Minister for the
purposes of the regulations.
(4) Before making an order referred to in paragraph (1)(a),
the court must allocate a base amount to the non‑member spouse, not
exceeding the value determined under subsection (2).
Note: The base amount is used to calculate the
entitlement of the non‑member spouse under the regulations.
90MU
Flagging order
(1) A court, in accordance with section 90MS,
may make an order in relation to a superannuation interest (other than an
unflaggable interest):
(a) directing the trustee not to make
any splittable payment in respect of the interest without the leave of the
court; and
(b) requiring the trustee to notify
the member spouse and the non‑member spouse, within a period specified in
the order, of the next occasion when a splittable payment becomes payable in
respect of the interest.
(2) In deciding whether to make an order in
accordance with this section, the court may take into account such matters as
it considers relevant and, in particular, may take into account the likelihood
that a splittable payment will soon become payable in respect of the
superannuation interest.
90MUA
Some splittable payments may be made without leave of court
(1) A flagging order made under subsection
90MU(1) in relation to a superannuation interest (original interest)
a person has in an eligible superannuation plan (old ESP) does
not apply to a splittable payment if the splittable payment is made by the
trustee of the old ESP to the trustee of another eligible superannuation plan (new
ESP) in respect of the original interest as part of a successor fund
transfer.
(2) If the splittable payment is made, then
the flagging order is taken to be made in relation to the new interest from the
time that the payment to the trustee of the new ESP is made.
(3) In this section:
successor fund transfer means the transfer of
a person’s superannuation interest in the old ESP in circumstances where:
(a) the new ESP confers on the person,
in relation to the new interest, equivalent rights to the rights the person had
in relation to the original interest; and
(b) before the transfer, the trustee
of the new ESP had agreed with the trustee of the old ESP to the conferral of
such rights.
Division 4—General provisions about payment splitting
90MV
Court may cancel payment split
(1) A court may, under section 79 or
90SM, make an order terminating the operation of a payment split if:
(a) the superannuation agreement in
respect of the payment split has ceased to be in force; and
(b) the non‑member spouse has
not served a waiver notice on the trustee under section 90MZA in respect
of the payment split.
(2) The termination has effect for splittable
payments that become payable after the date specified in the order.
90MW
Deductions from splittable payment before calculating payment split
Any deduction that the trustee is
entitled to make from a splittable payment is to be deducted from the
splittable payment before calculating any payment split and before applying
section 90MX.
90MX
Multiple payment splits applying to the same splittable payment
(1) This section applies if 2 or more payment
splits apply to the same splittable payment.
(2) The payments splits are to be calculated
in order of their operative times, starting with the earliest time.
(3) For the purpose of calculating each of
those payment splits (other than the one with the earliest operative time), the
amount of the splittable payment is taken to be reduced by the amount to which
a person other than the member spouse is entitled under the payment split with
the next earlier operative time.
Example 1: W has a superannuation interest that is subject to
3 payment splits in respect of W’s marriages to X, Y and Z (in that order). The
operative times of the payment splits are in the same order as the marriages.
Assume each payment split provides for a 50% share to the non‑member
spouse. W becomes entitled to a splittable payment of $100. The final payment
entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the
remaining $12.50.
Example 2: W has a superannuation interest that is subject to
3 payment splits in respect of W’s de facto relationship with X, W’s
marriage to Y and W’s de facto relationship with Z (in that order). The
operative times of the payment splits are in the same order as the
relationships. Assume each payment split provides for a 50% share to the non‑member
spouse. W becomes entitled to a splittable payment of $100. The final payment
entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the
remaining $12.50.
90MY
Fees payable to trustee
(1) The regulations may:
(a) allow trustees to charge
reasonable fees:
(i) in respect of a
payment split; or
(ii) otherwise in respect
of the operation of this Part in relation to a superannuation interest; and
(b) prescribe the person or persons
liable to pay those fees.
(2) If any such fee remains unpaid after the
time it is due for payment, then the trustee may recover any unpaid amount by
deduction from amounts that would otherwise become payable by the trustee, in
respect of the superannuation interest, to the person who is liable to pay the
fee.
90MZ
Superannuation preservation requirements
(1) If the eligible superannuation plan for a
payment split is a regulated superannuation fund or approved deposit fund, then
the entitlement of the non‑member spouse is subject to any regulations
made under the SIS Act that provide for payment of that entitlement to a
regulated superannuation fund, approved deposit fund, RSA or exempt public
sector superannuation scheme within the meaning of the SIS Act for the benefit
of the non‑member spouse.
(2) If the eligible superannuation plan for a
payment split is an RSA, then the entitlement of the non‑member spouse is
subject to any regulations made under the Retirement Savings Accounts Act
1997 that provide for payment of that entitlement to a regulated
superannuation fund, approved deposit fund, RSA or exempt public sector
superannuation scheme within the meaning of the SIS Act for the benefit of the
non‑member spouse.
(3) If the eligible superannuation plan for a
payment split is a constitutionally protected fund (within the meaning of the Income
Tax Assessment Act 1997) or an exempt public sector superannuation
scheme within the meaning of the SIS Act, then the entitlement of the non‑member
spouse is subject to any law or other instrument that provides for payment of
that entitlement to a regulated superannuation fund, approved deposit fund, RSA
or exempt public sector superannuation scheme within the meaning of the SIS Act
for the benefit of the non‑member spouse.
90MZA
Waiver of rights under payment split
(1) If the non‑member spouse serves a
waiver notice on the trustee in respect of a payment split, then the following
provisions apply for each splittable payment that becomes payable after the
date specified in the waiver notice:
(a) the non‑member spouse is not
entitled to be paid any amount under the payment split in respect of the
splittable payment;
(b) the entitlement of the person to
whom the splittable payment would have been made but for the payment split
continues to be reduced in the same way as it would have been reduced if the
entitlement of the non‑member spouse had not been terminated.
Example: X has a superannuation interest that is subject
to a 50:50 payment split in favour of Y. Y serves a waiver notice on the
trustee, in exchange for a lump sum payment made by the trustee to another fund
for the benefit of Y. The effect is that X’s payments will continue to be
reduced by half, but Y will receive no further payments under the payment
split.
(2) To be effective for the purposes of this
section, a waiver notice must be in the prescribed form and must be accompanied
by:
(a) a statement to the effect that the
non‑member spouse has been provided with independent financial advice
from a prescribed financial adviser as to the financial effect of the waiver
notice; and
(b) a certificate signed by the person
who provided the financial advice, stating that the advice was provided.
90MZB
Trustee to provide information
(1) An eligible person may make an
application to the trustee of an eligible superannuation plan for information
about a superannuation interest of a member of the plan.
(2) The application must be accompanied by:
(a) a declaration, in the prescribed
form, stating that the applicant requires the information for either or both of
the following purposes:
(i) to assist the
applicant to properly negotiate a superannuation agreement;
(ii) to assist the
applicant in connection with the operation of this Part in relation to the
applicant; and
(b) the fee (if any) payable under
regulations made for the purposes of section 90MY.
(3) If the trustee receives an application
that complies with this section, the trustee must, in accordance with the
regulations, provide information about the superannuation interest to the
applicant.
Penalty: 50 penalty units.
Note: The penalty for a body corporate is 250
penalty units. See subsection 4B(3) of the Crimes Act 1914.
(4) Regulations for the purposes of subsection (3)
may specify circumstances in which the trustee is not required to provide
information.
Example: The regulations might provide that a secondary
government trustee is not required to provide information where there is
another trustee of the eligible superannuation plan who is better able to
provide the information.
(5) The trustee must not, in response to an
application under this section by a spouse of the member, provide the spouse
with any address of the member. For this purpose, address
includes a postal address.
Penalty: 50 penalty units.
Note: The penalty for a body corporate is 250
penalty units. See subsection 4B(3) of the Crimes Act 1914.
(6) If the trustee receives an application
under this section from a person other than the member, the trustee must not
inform the member that the application has been received.
Penalty: 50 penalty units.
Note: The penalty for a body corporate is 250
penalty units. See subsection 4B(3) of the Crimes Act 1914.
(7) The regulations may require the trustee
of an eligible superannuation plan, after the operative time for a payment
split, to provide information to the non‑member spouse about the
superannuation interest concerned. Such regulations may prescribe penalties for
contravention, not exceeding 10 penalty units.
(8) In this section:
eligible person, in relation to a
superannuation interest of a member of an eligible superannuation plan, means:
(a) the member; or
(aa) if the member has died—the legal
personal representative of the member; or
(b) a spouse of the member; or
(ba) if a spouse of the member has
died—the legal personal representative of the spouse; or
(c) a person who intends to enter into
a superannuation agreement with the member.
90MZC
Death of non‑member spouse
If the non‑member spouse dies
after the operative time for a payment split:
(a) the payment split nevertheless
continues to operate; and
(b) the payment split then operates in
favour of the legal personal representative of the deceased spouse and is
binding on that legal personal representative; and
(c) the legal personal representative
has all the rights the deceased spouse would have had in respect of the payment
split, including the right to serve a waiver notice under section 90MZA.
Division 5—Miscellaneous
90MZD
Orders binding on trustee
(1) An order under this Part in relation to a
superannuation interest may be expressed to bind the person who is the trustee
of the eligible superannuation plan at the time when the order takes effect.
However:
(a) in the case of a trustee who is
not a secondary government trustee—the court cannot make such an order unless
the trustee has been accorded procedural fairness in relation to the making of
the order; and
(b) in the case of a secondary
government trustee:
(i) the court cannot make
such an order unless another trustee of the eligible superannuation plan has
been accorded procedural fairness in relation to the making of the order; and
(ii) the court may, if it
thinks fit, require that the secondary government trustee also be accorded
procedural fairness.
(2) If an order is binding on the person who
is the trustee of an eligible superannuation plan at the time when the order
takes effect, then the order is also binding (by force of this subsection) on:
(a) any person who subsequently
becomes the trustee of that eligible superannuation plan; or
(b) in a case where section 90MUA
applies—a person who is the trustee, or any person who subsequently becomes the
trustee, of the new ESP.
90MZE
Protection for trustee
The trustee of an eligible
superannuation plan is not liable for loss or damage suffered by any person
because of things done (or not done) by the trustee in good faith in reliance
on:
(a) any document served on the trustee
for the purposes of this Part; or
(b) an order made by a court in
accordance with this Part.
90MZF
Service of documents on trustee
(1) If a document is required or permitted to
be served for the purposes of this Part on the trustee of an eligible superannuation
plan, the document may be served in any of the ways in which a document may be
served under the Rules of Court.
(2) Subsection (1) is in addition to any
other method of service permitted by law.
90MZG
False declarations
(1) A person is guilty of an offence if:
(a) the person makes a statement in a
declaration, knowing that the statement is false or misleading; and
(b) the declaration is served on the
trustee of an eligible superannuation plan for the purposes of this Part.
(2) An offence against subsection (1) is
punishable by imprisonment for a period of up to 12 months.
(3) Subsection (1) does not apply if the
statement is not false or misleading in a material particular.
(4) Subsection (1) does not apply in
relation to a declaration if a spouse to which the declaration relates died
before the declaration was made.
90MZH
Terminating employment because of payment flag etc.
A person must not terminate the
employment of an employee on either of the following grounds:
(a) a payment flag is operating in
respect of a superannuation interest of the employee;
(b) a superannuation agreement or
splitting order is in force in respect of a superannuation interest of the
employee.
Penalty: 100 penalty units.
Note: The penalty for a body corporate is 500
penalty units. See subsection 4B(3) of the Crimes Act 1914.
Part IX—Intervention
91
Intervention by Attorney‑General
(1) The Attorney‑General may intervene
in, and contest or argue any question arising in:
(a) any proceedings under this Act
where the court requests the Attorney‑General to do so or a matter arises
that affects the public interest; or
(b) any proceedings under this Act for
or in relation to:
(i) a parenting order,
other than a child maintenance order; or
(ii) an order under section 67ZC.
(1A) At any time after a divorce order has been
made in any proceedings and before it has taken effect, the Attorney‑General
may intervene in the proceedings for the purpose of bringing to the notice of
the court matters relevant to the exercise of its powers under section 58.
(2) Where the Attorney‑General
intervenes in any proceedings, the Attorney‑General shall be deemed to be
a party to the proceedings with all the rights, duties and liabilities of a
party.
91A
Delegation by Attorney‑General
(1) Where, in a State, there is a Family
Court of the State, the Attorney‑General may, either generally or as
otherwise provided by the instrument of delegation, by writing, delegate all or
any of his or her powers and functions under section 91 in respect of
intervention in proceedings in the Family Court of that State and in other
courts of that State to the person occupying from time to time, while the
delegation is in force, the office of Attorney‑General of that State.
(2) A power or function so delegated may be
exercised or performed by the delegate in accordance with the instrument of
delegation.
(3) A delegation under this section does not
prevent the exercise of a power or the performance of a function by the
Attorney‑General.
(4) Where the Attorney‑General of a
State intervenes in any proceedings in accordance with a delegation under this
section, the Attorney‑General of the State shall be deemed to be a party
to the proceedings with all the rights, duties and liabilities of a party.
91B
Intervention by child welfare officer
(1) In any proceedings under this Act that
affect, or may affect, the welfare of a child, the court may request the
intervention in the proceedings of an officer of a State, of a Territory or of
the Commonwealth, being the officer who is responsible for the administration
of the laws of the State or Territory in which the proceedings are being heard
that relate to child welfare.
(2) Where the court has, under subsection (1),
requested an officer to intervene in proceedings:
(a) the officer may intervene in those
proceedings; and
(b) where the officer so intervenes,
the officer shall be deemed to be a party to the proceedings with all the
rights, duties and liabilities of a party.
92
Intervention by other persons
(1) In proceedings (other than divorce or
validity of marriage proceedings), any person may apply for leave to intervene
in the proceedings, and the court may make an order entitling that person to
intervene in the proceedings.
(1A) In divorce or validity of marriage
proceedings, a person in relation to whom an order has been made under
subsection 69W(1) requiring a parentage testing procedure to be carried out may
apply for leave to intervene in the proceedings, and the court may make an
order entitling the person to intervene in the proceedings.
(2) An order under this section may be made
upon such conditions as the court considers appropriate.
(3) Where a person intervenes in any
proceedings by leave of the court the person shall, unless the court otherwise
orders, be deemed to be a party to the proceedings with all the rights, duties
and liabilities of a party.
92A
Intervention in child abuse cases
(1) This section applies to proceedings under
this Act in which it has been alleged that a child has been abused or is at
risk of being abused.
(2) Each of the following persons is entitled
to intervene in the proceedings:
(a) a guardian of the child;
(b) a parent of the child with whom
the child lives;
(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;
(c) any other person responsible for
the care, welfare or development of the child;
(d) a prescribed child welfare
authority;
(e) a person who is alleged to have
abused the child or from whom the child is alleged to be at risk of abuse.
(3) Where a person intervenes in proceedings
pursuant to this section, the person is, unless the court otherwise orders, to
be taken to be a party to the proceedings with all the rights, duties and
liabilities of a party.
Part X—Appeals
93 No
appeal after divorce order takes effect
An appeal does not lie from a divorce
order after the order has taken effect.
93A
Appellate jurisdiction of Family Court
(1) The Family Court has jurisdiction with
respect to matters arising under this Act or under any other law made by the
Parliament in respect of which:
(a) appeals referred to in section 94
are instituted; or
(aa) appeals referred to in subsection
94AAA(1) or (1A) are instituted; or
(b) appeals referred to in section 96
are instituted.
(2) Subject to section 96, in an appeal
the Family Court shall have regard to the evidence given in the proceedings out
of which the appeal arose and has power to draw inferences of fact and, in its
discretion, to receive further evidence upon questions of fact, which evidence
may be given:
(a) by affidavit; or
(b) by oral examination before the
Family Court or a Judge; or
(c) as provided for in Division 2
of Part XI.
94 Appeals
to Family Court from courts other than the Federal Magistrates Court and
the Magistrates Court of Western Australia
(1) Subject to sections 94AAA and 94AA,
an appeal lies to a Full Court of the Family Court from:
(a) a decree of the Family Court, constituted
otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i) under this Act; or
(ii) under any other law;
or
(b) a decree of:
(i) a Family Court of a
State; or
(ii) a Supreme Court of a
State or Territory constituted by a single Judge;
exercising original or appellate
jurisdiction under this Act or in proceedings continued in accordance with any
of the provisions of section 9.
(1AA) An appeal lies to a Full Court of the Family
Court from a decree or decision of a Judge exercising original or appellate
jurisdiction under this Act rejecting an application that he or she disqualify
himself or herself from further hearing a matter.
(1A) An appeal under subsection (1) or
(1AA) shall be instituted within the time prescribed by the standard Rules of
Court or within such further time as is allowed in accordance with the standard
Rules of Court.
(2) Upon such an appeal, the Full Court may
affirm, reverse or vary the decree or decision the subject of the appeal and
may make such decree or decision as, in the opinion of the court, ought to have
been made in the first instance, or may, if it considers appropriate, order a
re‑hearing, on such terms and conditions, if any, as it considers
appropriate.
(2A) If, in dismissing an appeal under subsection (1)
or (1AA), the Full Court is of the opinion that the appeal does not raise any
question of general principle, it may give reasons for its decision in short
form.
(2B) A Full Court of the Family Court, or a
Judge of the Appeal Division or other Judge if there is no Judge of the Appeal
Division available, may:
(a) join or remove a party to an
appeal under subsection (1) or (1AA); or
(b) make an order by consent disposing
of an appeal under subsection (1) or (1AA) (including an order for costs);
or
(c) give directions about the conduct
of an appeal under subsection (1) or (1AA), including directions about the
use of written submissions and limiting the time for oral argument.
(2C) The standard Rules of Court may make
provision enabling matters of the kind mentioned in subsection (2B) to be
dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(2D) Applications
of a procedural nature, including applications:
(a) for an extension of time within
which to institute an appeal under subsection (1) or (1AA); or
(b) for leave to amend the grounds of
an appeal under subsection (1) or (1AA); or
(c) to reinstate an appeal under subsection (1)
or (1AA) that, because of the standard Rules of Court, was taken to have been
abandoned; or
(d) to stay an order of a Full Court
of the Family Court made in connection with an appeal under subsection (1)
or (1AA); or
(e) for an extension of time within
which to file an application for leave to appeal; or
(f) for security for costs in
relation to an appeal; or
(g) to reinstate an appeal dismissed
under a provision of the Rules of Court; or
(h) to adjourn the hearing of an
appeal; or
(i) to vacate the hearing date of an
appeal; or
(j) to expedite the hearing of an
appeal;
may be heard and determined by a Judge of the Appeal
Division or other Judge if there is no Judge of the Appeal Division available,
or by a Full Court of the Family Court.
(2E) The standard Rules of Court may make
provision enabling applications of a kind mentioned in subsection (2D) to
be dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(2F) No appeal lies under this section from an
order or decision made under subsection (2B) or (2D).
(3) This section does not apply in relation
to a proceeding that is transferred to the Court from the Federal Court of
Australia.
94AAA
Appeals to Family Court from the Federal Magistrates Court and the
Magistrates Court of Western Australia
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal
Magistrates Court exercising original jurisdiction under this Act; or
(b) a
decree or decision of a Federal Magistrate exercising original jurisdiction
under this Act rejecting an application that he or she disqualify himself or
herself from further hearing a matter.
(1A) An appeal lies to the Family Court from:
(a) a decree of the Magistrates Court
of Western Australia constituted by a Family Law Magistrate of Western
Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Family
Law Magistrate of Western Australia exercising in the Magistrates Court of
Western Australia original jurisdiction under this Act rejecting an application
that he or she disqualify himself or herself from further hearing a matter.
(2) Subsections (1) and (1A) have effect
subject to section 94AA.
(3) The jurisdiction of the Family Court in
relation to an appeal under subsection (1) or (1A) is to be exercised by a
Full Court unless the Chief Judge considers that it is appropriate for the
jurisdiction of the Family Court in relation to the appeal to be exercised by a
single Judge.
(4) Subsection (3) has effect subject to
subsections (8) and (10).
(5) An appeal under subsection (1) or
(1A) is to be instituted within:
(a) the time prescribed by the
standard Rules of Court; or
(b) such further time as is allowed in
accordance with the standard Rules of Court.
(6) On an appeal under subsection (1) or
(1A), the Family Court may affirm, reverse or vary the decree or decision the
subject of the appeal and may make such decree or decision as, in the opinion
of the court, ought to have been made in the first instance, or may, if it
considers appropriate, order a re‑hearing on such terms and conditions,
if any, as it considers appropriate.
(7) If, in dismissing an appeal under subsection (1)
or (1A), the Family Court is of the opinion that the appeal does not raise any
question of general principle, it may give reasons for its decision in short
form.
(8) A single
Judge or a Full Court may:
(a) join or remove a party to an
appeal under subsection (1) or (1A); or
(b) make an order by consent disposing
of an appeal under subsection (1) or (1A) (including an order for costs);
or
(c) give directions about the conduct
of an appeal under subsection (1) or (1A), including directions about:
(i) the use of written
submissions; and
(ii) limiting the time for
oral argument.
(9) The standard Rules of Court may make
provision enabling matters of the kind mentioned in subsection (8) to be
dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(10) Applications of a procedural nature,
including applications:
(a) for an extension of time within
which to institute an appeal under subsection (1) or (1A); or
(b) for leave to amend the grounds of
an appeal under subsection (1) or (1A); or
(c) to reinstate an appeal under subsection (1)
or (1A) that, because of the standard Rules of Court, was taken to have been
abandoned; or
(d) to stay an order of the Family
Court made in connection with an appeal under subsection (1) or (1A); or
(e) for an extension of time within
which to file an application for leave to appeal; or
(f) for security for costs in relation
to an appeal; or
(g) to reinstate an appeal dismissed
under a provision of the Rules of Court; or
(h) to adjourn the hearing of an
appeal; or
(i) to vacate the hearing date of an
appeal; or
(j) to expedite the hearing of an
appeal;
may be heard and determined by a single Judge or by a Full
Court.
(11) The standard Rules of Court may make
provision enabling applications of a kind mentioned in subsection (10) to
be dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(12) An appeal does not lie to a Full Court
from a decision of a single Judge exercising jurisdiction under this section.
(13) The single Judge referred to in subsection (3),
(8) or (10) need not be a member of the Appeal Division.
94AAB
Appeals, and applications for leave, without oral hearing
(1) Subject to subsection (2), an appeal
under section 94 or 94AAA may be dealt with without an oral hearing if all
the parties to the appeal consent to the appeal being dealt with in that way.
(2) Subsection (1) does not apply to an
appeal if the court to which the appeal is made otherwise orders.
(3) A consent given under subsection (1)
may only be withdrawn with the leave of the court.
94AA
Leave to appeal needed in some cases
(1) The following table sets out the
circumstances in which leave to appeal is required:
|
Requirements for leave
to appeal
|
|
Item
|
Appeal from
|
Appeal to
|
Who determines the
application for leave to appeal
|
|
1
|
a prescribed decree of the Family Court (constituted
otherwise than as a Full Court)
|
a Full Court of the Family Court
|
a Full Court of the Family Court
|
|
2
|
a prescribed decree of a Family Court of a State
|
a Full Court of the Family Court
|
a Full Court of the Family Court
|
|
3
|
a prescribed decree of a Supreme Court of a State or
Territory constituted by a single Judge
|
a Full Court of the Family Court
|
a Full Court of the Family Court
|
|
4
|
a prescribed decree of the Federal Magistrates Court
|
the Family Court
|
(a) a single Judge of the Family Court (who need not be a
member of the Appeal Division); or
(b) a Full Court of the Family Court
|
|
5
|
a prescribed decree of the Magistrates Court of Western
Australia constituted by a Family Law Magistrate of Western Australia
|
the Family Court
|
(a) a single Judge of the Family Court (who need not be a
member of the Appeal Division); or
(b) a Full Court of the Family Court
|
(2) Despite subsection (1), an order by
consent disposing of an application under this section for leave to appeal
under subsection 94(1) or (1AA) (including an order for costs) may be made by:
(a) a Full Court of the Family Court;
or
(b) a Judge of the Appeal Division; or
(c) another Judge if there is no Judge
of the Appeal Division available.
(2A) Despite subsection (1), an order by
consent disposing of an application under this section for leave to appeal
under subsection 94AAA(1) or (1A) (including an order for costs) may be made
by:
(a) a Full Court of the Family Court;
or
(b) a single Judge of the Family Court
(who need not be a member of the Appeal Division).
(3) The standard Rules of Court may make
provision for enabling applications for leave to be dealt with, subject to
conditions prescribed by the Rules, without an oral hearing.
94A
Case stated
(1) If, in proceedings in a court, being
proceedings in which a decree or decision to which subsection 94(1) or (1AA)
applies could be made, a question of law arises which the Judge and at least
one of the parties wish to have determined by a Full Court of the Family Court
before the proceedings are further dealt with, the Judge shall state the facts
and question in the form of a special case for the opinion of a Full Court, and
a Full Court shall hear and determine the question.
(2) The Full Court may draw from the facts
and the documents any inference, whether of fact or of law, which could have
been drawn from them by the Judge.
(3) If, in proceedings in the Federal Magistrates
Court, being proceedings in which a decree or decision to which subsection
94AAA(1) applies could be made, a question of law arises which:
(a) the Federal Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family
Court before the proceedings are further dealt with:
(c) the Federal Magistrate must state
the facts and question in the form of a special case for the opinion of a Full
Court of the Family Court; and
(d) a Full Court of the Family Court
must hear and determine the question.
(4) The Full Court may draw from the facts
and the documents any inference, whether of fact or of law, which could have
been drawn from them by the Federal Magistrate.
(5) If, in proceedings in the Magistrates
Court of Western Australia constituted by a Family Law Magistrate of Western
Australia, being proceedings in which a decree or decision to which subsection
94AAA(1A) applies could be made, a question of law arises which:
(a) the Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family
Court before the proceedings are further dealt with:
(c) the Magistrate must state the
facts and question in the form of a special case for the opinion of a Full
Court of the Family Court; and
(d) a Full Court of the Family Court
must hear and determine the question.
(6) The Full Court may draw from the facts
and the documents any inference, whether of fact or of law, which could have
been drawn from them by the Magistrate.
95
Appeals to High Court
Despite anything contained in any other
Act, an appeal does not lie to the High Court from a decree of a court
exercising jurisdiction under this Act, whether original or appellate, except
by special leave of the High Court.
96
Appeals from courts of summary jurisdiction
(1AA) This section does not apply to a decree of
the Magistrates Court of Western Australia constituted by a Family Law
Magistrate of Western Australia.
Note: Appeals from these decrees are dealt with in
section 94AAA.
(1) An appeal lies from a decree of a court
of summary jurisdiction of a State or Territory exercising jurisdiction under
this Act to the Family Court or to the Supreme Court of that State or
Territory.
(1A) An appeal under subsection (1) shall
be instituted within the time prescribed by the standard Rules of Court or
within such further time as is allowed in accordance with the standard Rules of
Court.
(2) The Supreme Court of each State is
invested with federal jurisdiction, and jurisdiction is conferred on the
Supreme Court of each Territory, with respect to matters arising under this Act
in respect of which appeals are instituted under this section.
(3) The Governor‑General may, by
Proclamation, fix a date as the date on or after which appeals to the Supreme
Court of a specified State or Territory under this section may not be
instituted.
(4) The court
hearing an appeal under this section:
(a) shall, subject to subsection (5),
proceed by way of a hearing de novo, but may receive as evidence any
record of evidence given, including any affidavit filed or exhibit received, in
the court of summary jurisdiction; and
(b) may make such decrees as it considers
appropriate, including a decree affirming, reversing or varying the decree the
subject of the appeal.
(5) The court hearing an appeal under this
section may, on the application of a party or of its own motion, refer the
appeal to a Full Court of the Family Court.
(6) Where an appeal is referred to a Full
Court of the Family Court under subsection (5), the Full Court may:
(a) proceed by way of a hearing de
novo, but may receive as evidence any record of evidence given, including
any affidavit filed or exhibit received in the court of summary jurisdiction;
(b) order that questions of fact
arising in the proceedings be tried by a Judge;
(c) determine questions of law arising
in the proceedings and remit the appeal to a Judge for hearing in accordance with
directions given by it; and
(d) make such other decrees as it
considers appropriate, including a decree affirming, reversing or varying the
decree the subject of the appeal.
96AA
Power to dismiss appeal
If it appears to a court hearing an
appeal under this Part that the notice of the appeal does not disclose proper
grounds of appeal (whether generally, or in relation to a particular ground of
appeal), the court may order that the proceedings on the appeal be stayed or
dismissed (either generally or in relation to that ground).
96A
Part does not apply to section 111C jurisdiction
This Part does not apply in relation to
jurisdiction conferred on a federal court or a court of a Territory, or
invested in a court of a State, by regulations made for the purposes of section 111C.
Note: Those regulations may provide for courts to
have jurisdiction in respect of appeals arising from matters dealt with by
those regulations: see subsection 111C(5).
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).
Division 1—General matters concerning procedure and evidence
97
Procedure
(1) Subject to subsections (1A) and (2),
to the regulations and to the applicable Rules of Court, all proceedings in the
Family Court, in the Federal Magistrates Court, or in a court of a Territory
(other than the Northern Territory) when exercising jurisdiction under this
Act, shall be heard in open court.
(1A) The regulations and the applicable Rules of
Court may authorise proceedings to be heard by a Judge, Judicial Registrar,
Registrar, Federal Magistrate or magistrate sitting in Chambers.
(2) In any proceedings in the Family Court,
or in another court when exercising jurisdiction under this Act, the court may,
of its own motion or on the application of a party to the proceedings, make one
or more of the following orders:
(a) an order that a specified person
is not, or specified persons are not, to be present in court during the
proceedings or during a specified part of the proceedings;
(b) an order that persons included in
a specified class of persons are not to be present in court during the
proceedings or during a specified part of the proceedings;
(c) an order that only the parties to
the proceedings, their legal representatives and such other persons (if any) as
are specified by the court may be present in court during the proceedings or
during a specified part of the proceedings.
(3) In proceedings under this Act, the court
shall proceed without undue formality and shall endeavour to ensure that the
proceedings are not protracted.
98
Evidence by affidavit
(1) The standard Rules of Court may provide
for evidence of any material matter to be given on affidavit at the hearing of:
(a) divorce or validity of marriage
proceedings that are undefended at the time of hearing; and
(b) proceedings other than divorce or
validity of marriage proceedings.
(2) This section does not apply to
proceedings in the Federal Magistrates Court.
Note: For provisions relating to the Federal
Magistrates Court, see the Federal Magistrates Act 1999.
98A
Proceedings in absence of parties
(1) The applicable Rules of Court may provide
that where, at the date fixed for the hearing of proceedings for a divorce
order in relation to a marriage instituted by one party to the marriage:
(a) the proceedings are undefended;
(b) there are no children of the
marriage who have not attained the age of 18 years;
(c) the applicant has requested the
court to determine the proceedings in the absence of the parties; and
(d) the
respondent has not requested the court not to determine the proceedings in the
absence of the parties;
the court may, in its discretion, determine the
proceedings notwithstanding that neither the parties to the proceedings nor
their legal representatives are present in court.
(2) The applicable Rules of Court may provide
that where, at the date fixed for the hearing of proceedings for a divorce
order in relation to a marriage instituted jointly by the parties to the
marriage:
(a) one of the parties to the marriage
has requested the court to determine the proceedings in the absence of the
parties and the other party to the marriage has not requested the court not to
determine the proceedings in the absence of the parties; or
(b) both parties to the marriage have
requested the court to determine the proceedings in the absence of the parties;
the court may, in its discretion, determine the
proceedings notwithstanding that neither the parties to the proceedings nor
their legal representatives are present in court.
(2A) The court must not determine proceedings
for the divorce order in relation to the marriage under subsection (2) if:
(a) there are any children of the
marriage who are under 18; and
(b) the court is not satisfied that
proper arrangements in all the circumstances have been made for the care,
welfare and development of those children.
(2B) The court may determine proceedings under subsection (1)
or (2) in chambers.
(3) For the purposes of this section, a child
(including an ex‑nuptial child of either the husband or the wife, a child
adopted by either of them or a child who is not a child of either of them) is a
child of the marriage if the child was treated by the husband and wife as a
child of their family at the relevant time.
(4) For the purposes of subsection (3),
the relevant time is the time immediately before the time when the husband and
wife separated or, if they have separated on more than one occasion, the time
immediately before the time when they last separated before the institution of
the proceedings for the divorce order in relation to the marriage.
100
Evidence of husbands and wives
(1) The parties to proceedings under this Act
are competent and compellable witnesses.
(2) In proceedings under this Act, the
parties to a marriage are competent and compellable to disclose communications
made between them during the marriage.
(3) Subsection (2) applies to
communications made before, as well as to communications made after, the date
of commencement of this Act.
100B
Children swearing affidavits, being called as witnesses or being present in
court
(1) A child, other than a child who is or is
seeking to become a party to proceedings, must not swear an affidavit for the
purposes of proceedings, unless the court makes an order allowing the child to
do so.
(2) A child must not be called as a witness
in, or be present during, proceedings in the Family Court, or in another court
when exercising jurisdiction under this Act, unless the court makes an order
allowing the child to be called as a witness or to be present (as the case may
be).
(3) In this section:
child means a child under 18 years of age.
100C
Evidence in respect of which a child is a protected confider
(1) In any proceedings in the Family Court,
or in the Federal Magistrates Court when exercising jurisdiction under this Act,
a person described in subsection (2) may, on a child’s behalf, apply to
the court for:
(a) a direction under subsection
126B(1) of the Evidence Act 1995; or
(b) an order under section 126E
of that Act;
in relation to evidence in respect of which the child is a
protected confider (within the meaning of section 126A of that Act).
(2) For the purposes of subsection (1),
the following persons may apply to the court on a child’s behalf:
(a) the independent children’s lawyer;
or
(b) a parent of the child who has
responsibility for making decisions about major long‑term issues in
relation to the child; or
(c) a person other than a parent who
has responsibility for making decisions about major long‑term issues in
relation to the child.
101
Protection of witnesses
(1) The court shall forbid the asking of, or
excuse a witness from answering, a question that it regards as offensive,
scandalous, insulting, abusive or humiliating, unless the court is satisfied
that it is essential in the interests of justice that the question be answered.
(2) The court must forbid an examination of a
witness that it regards as oppressive, repetitive or hectoring, or excuse a
witness from answering questions asked during such an examination, unless the
court is satisfied that it is essential in the interests of justice for the
examination to continue or for the questions to be answered.
102
Proof of birth, parentage, death or marriage
In proceedings under this Act, the court
may receive as evidence of the facts stated in it a document purporting to be
either the original or a certified copy of:
(a) a certificate, entry or record of
a birth, death or marriage alleged to have taken place, whether in Australia or
elsewhere; or
(b) an entry in a register of
parentage information kept under the law of the Commonwealth or of a State,
Territory or prescribed overseas jurisdiction.
102A
Restrictions on examination of children
(1) Subject to this section, where a child is
examined without the leave of the court, the evidence resulting from the
examination which relates to the abuse of, or the risk of abuse of, the child
is not admissible in proceedings under this Act.
(2) Where a person causes a child to be
examined for the purpose of deciding:
(a) to bring proceedings under this
Act involving an allegation that the child has been abused or is at risk of
being abused; or
(b) to
make an allegation in proceedings under this Act that the child has been abused
or is at risk of being abused;
subsection (1) does not apply in relation to evidence
resulting from the first examination which the person caused the child to
undergo.
(3) In considering whether to give leave for
a child to be examined, the court must have regard to the following matters:
(a) whether the proposed examination
is likely to provide relevant information that is unlikely to be obtained
otherwise;
(b) the qualifications of the person
who proposes to conduct the examination to conduct that examination;
(c) whether any distress likely to be
caused to the child by the examination will be outweighed by the value of the
information that might be obtained from the examination;
(d) any distress already caused to the
child by any previous examination associated with the proceedings or with
related proceedings;
(e) any other matter that the court
thinks is relevant.
(4) In proceedings under this Act, a court
may admit evidence which is otherwise inadmissible under this section where it
is satisfied that:
(a) the evidence relates to relevant
matters on which the evidence already before the court is inadequate; and
(b) the court will not be able to
determine the proceedings properly unless the evidence is admitted; and
(c) the welfare of the child concerned
is likely to be served by the admission of the evidence.
(5) In this
section:
examined, in
relation to a child, means:
(a) subjected to a medical procedure;
or
(b) examined or assessed by a
psychiatrist or psychologist (other than by a family counsellor or family
consultant).
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.
102B
Assessors
In any
proceedings under this Act (other than prescribed proceedings), the court may,
in accordance with the applicable Rules of Court, get an assessor to help it in
the hearing and determination of the proceedings, or any part of them or any
matter arising under them.
Division 2—Use of video link, audio link or other appropriate means to
give testimony, make appearances and give submissions etc.
102C
Testimony
(1) The court or a Judge may, for the
purposes of any proceedings, direct or allow testimony to be given by video
link, audio link or other appropriate means.
Note: See also section 102F.
(2) The testimony must be given on oath or
affirmation unless:
(a) the person giving the testimony is
in a foreign country; and
(b) either:
(i) the law in force in
that country does not permit the person to give testimony on oath or
affirmation for the purposes of the proceedings; or
(ii) the law in force in
that country would make it inconvenient for the person to give testimony on
oath or affirmation for the purposes of the proceedings; and
(c) the court or a Judge is
satisfied that it is appropriate for the testimony to be given otherwise than
on oath or affirmation.
(3) If the testimony is given otherwise than
on oath or affirmation, the court or a Judge must give the testimony such
weight as the court or the Judge thinks fit in the circumstances.
(4) The power conferred on the court or a
Judge by subsection (1) may be exercised:
(a) on the application of a party to
the proceedings concerned; or
(b) on the court’s own initiative or
on the Judge’s own initiative, as the case may be.
(5) This section applies whether the person
giving testimony is in or outside Australia, but does not allow testimony to be
given by a person who is in New Zealand.
Note: See the Evidence and Procedure (New
Zealand) Act 1994.
102D
Appearance of persons
(1) The court or a Judge may, for the
purposes of any proceedings, direct or allow a person to appear before the
court or the Judge by way of video link, audio link or other appropriate
means.
Note: See also section 102F.
(2) The power conferred on the court or a
Judge by subsection (1) may be exercised:
(a) on the application of a party to
the proceedings concerned; or
(b) on the court’s own initiative or
on the Judge’s own initiative, as the case may be.
(3) This section applies whether the person
appearing is in or outside Australia, but does not apply if the person
appearing is in New Zealand.
Note: See the Evidence and Procedure (New
Zealand) Act 1994.
102E
Making of submissions
(1) The court or a Judge may, for the
purposes of any proceedings, direct or allow a person to make a submission to
the court or the Judge by way of video link, audio link or other appropriate
means.
Note: See also section 102F.
(2) The power conferred on the court or a
Judge by subsection (1) may be exercised:
(a) on the application of a party to
the proceedings concerned; or
(b) on the court’s own initiative or
on the Judge’s own initiative, as the case may be.
(3) This section applies whether the person
making the submission is in or outside Australia, but does not apply if the
person making the submission is in New Zealand.
Note: See the Evidence and Procedure (New
Zealand) Act 1994.
102F
Conditions for use of links
Video link
(1) The court
or a Judge must not exercise the power conferred by subsection 102C(1),
102D(1) or 102E(1) in relation to a video link unless the court or the Judge is
satisfied that the following conditions are met in relation to the video link:
(a) the courtroom is equipped with
facilities (for example, television monitors) that enable all eligible persons
present in that courtroom to see and hear the person (the remote person)
who is:
(i) giving the testimony;
or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of
the video link;
(b) the place at which the remote
person is located is equipped with facilities (for example, television
monitors) that enable all eligible persons present in that place to see and
hear each eligible person who is present in the courtroom;
(c) such other conditions (if any) as
are prescribed by the applicable Rules of Court in relation to the video link;
(d) such other conditions (if any) as
are imposed by the court or a Judge.
(2) The conditions that may be prescribed by
the applicable Rules of Court in accordance with paragraph (1)(c) include
conditions relating to:
(a) the form of the video link; and
(b) the equipment, or class of
equipment, used to establish the link; and
(c) the layout of cameras; and
(d) the standard of transmission; and
(e) the speed of transmission; and
(f) the quality of communication.
Audio link
(3) The court
or a Judge must not exercise the power conferred by subsection 102C(1),
102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is
satisfied that the following conditions are met in relation to the audio link:
(a) the
courtroom is equipped with facilities (for example, loudspeakers) that enable
all eligible persons present in that courtroom to hear the person (the remote
person) who is:
(i) giving the testimony;
or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of
the audio link;
(b) the place at which the remote
person is located is equipped with facilities (for example, loudspeakers) that
enable all eligible persons present in that place to hear each eligible person
who is present in the courtroom or other place where the court or the Judge is
sitting;
(c) such other conditions (if any) as
are prescribed by the applicable Rules of Court in relation to the audio link;
(d) such other conditions (if any) as
are imposed by the court or a Judge.
(4) The conditions that may be prescribed by
the applicable Rules of Court in accordance with paragraph (3)(c) include
conditions relating to:
(a) the form of the audio link; and
(b) the equipment, or class of
equipment, used to establish the audio link; and
(c) the standard of transmission; and
(d) the speed of transmission; and
(e) the quality of communication.
Other appropriate means
(5) The court or a Judge must not exercise
the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to
appropriate means other than video link or audio link unless the court or the
Judge is satisfied that the following conditions are met in relation to that
means:
(a) the conditions (if any) as are
prescribed by the applicable Rules of Court in relation to that other
appropriate means;
(b) such other conditions (if any) as
are imposed by the court or the Judge.
Eligible persons
(6) For the purposes of the application of
this section to particular proceedings, eligible persons are such
persons as the court or the Judge considers should be treated as
eligible persons for the purposes of the proceedings.
Meaning of courtroom
(7) In this section:
courtroom means:
(a) in relation to a Judge or a court
that is not a split court—the courtroom or other place where the Judge or court
is sitting; or
(b) in relation to a split court—each
of the courtrooms or places where the Judges of the split court are sitting.
102G
Putting documents to a person
(1) This section applies if, in the course of
an examination or appearance of a person by video link, audio link or other
appropriate means in accordance with this Division, it is necessary to put a
document to the person.
(2) A court (that is not a split court) or a
Judge may direct or allow the document to be put to the person:
(a) if the document is physically
present in the courtroom or other place where the court or the Judge is
sitting:
(i) by causing a copy of
the document to be transmitted to the place where the person is located; and
(ii) by causing the
transmitted copy to be put to the person; or
(b) if the document is physically
present in the place where the person is located:
(i) by causing the
document to be put to the person; and
(ii) by causing a copy of
the document to be transmitted to the courtroom or other place where the court
or the Judge is sitting.
(3) A split court may direct or allow the document
to be put to the person:
(a) if the document is physically
present in a courtroom or other place where a Judge of the split court is
sitting:
(i) by causing a copy of
the document to be transmitted to the place where the person is located; and
(ii) by causing the
transmitted copy to be put to the person; or
(b) if the document is physically
present in the place where the person is located:
(i) by causing the
document to be put to the person; and
(ii) by causing a copy of
the document to be transmitted to each of the courtrooms or other places where
the Judges of the split court are sitting.
102H
Putting documents to a split court
(1) If proceedings are before a split court
and it is necessary or appropriate to put a document to the court, the court
may direct or allow the document to be put to the court:
(a) if the document is physically
present in a courtroom or other place where a Judge of the split court is
sitting:
(i) by causing the
document to be put to the Judge; and
(ii) by causing a copy of
the document to be transmitted to each courtroom or other place where the other
Judge or Judges of the split court are sitting; and
(iii) by causing a copy of
the document to be transmitted to such other place where an eligible person is
located as the court directs; or
(b) if the document is not physically
present in a courtroom or other place where a Judge of the split court is
sitting:
(i) by causing a copy of
the document to be transmitted to each of the courtrooms or other places where
the Judges of the split court are sitting; and
(ii) by causing a copy of
the document to be transmitted to such other place where an eligible person is
located as the court directs.
Eligible persons
(2) For the purposes of the application of
this section to particular proceedings, eligible persons are such
persons as the court considers should be treated as eligible persons for the
purposes of the proceedings.
102J
Administration of oaths and affirmations
(1) An oath to be sworn, or an affirmation to
be made, by a person (the remote person) who is to give testimony
by video link, audio link or other appropriate means in accordance with
this Division may be administered:
(a) by means of the video link or
audio link, as the case may be, in a way that, as nearly as practicable,
corresponds to the way in which the oath or affirmation would be administered
if the remote person were to give testimony in the courtroom or other place
where the court or the Judge is sitting; or
(b) if the court or the Judge allows
another person who is present at the place where the remote person is located
to administer the oath or affirmation—by that other person.
(2) In this section:
courtroom or other place where the court or the Judge
is sitting, in relation to a split court, means the courtroom or other
place where the presiding Judge of the split court is sitting.
102K
Expenses
(1) The court or a Judge may make such
orders as the court or the Judge thinks just for the payment of
expenses, including the court’s expenses, incurred in connection with:
(a) the giving of testimony by video
link, audio link or other appropriate means in accordance with this Division;
or
(b) the appearance of a person by
video link, audio link or other appropriate means in accordance with this Division;
or
(c) the making of submissions by video
link, audio link or other appropriate means in accordance with this Division;
or
(d) the court sitting as a split court
in accordance with this Division and Division 3.
(2) Subsection (1) has effect subject to
the regulations.
102L New
Zealand proceedings
This Division does not affect the
operation of the Evidence and Procedure (New Zealand) Act 1994.
Division 3—Split court
102M
Determination that there is to be a split court
(1) If proceedings are to be heard and
determined by 2 or more Judges, then a directing Judge may determine:
(a) that the Family Court is to be a
split court; and
(b) which form of electronic
communication is to be used to facilitate the proceedings.
(2) In subsection (1):
directing Judge means:
(a) the Chief Justice; or
(b) the Presiding Judge in respect of
the proceedings.
electronic communication means:
(a) video link; or
(b) audio link; or
(c) other appropriate means of
communication.
102N
Conditions for split court
Conditions to be satisfied before direction under
section 102M may be given
(1) A direction must not be made under
subsection 102M(1) in respect of facilitating the sitting of a split court by a
form of electronic communication unless the directing Judge is satisfied:
(a) that each courtroom is equipped
with facilities that enable eligible persons present in the courtroom to
communicate with eligible persons present in the other courtrooms:
(i) using the particular
form of electronic communication; and
(ii) as required by the
proceedings before the court; and
(b) that such conditions of a kind
referred to in section 102F (if any) as are prescribed by the Rules of
Court in relation to the particular form of electronic communication are met.
Judges may impose own conditions
(2) Each Judge of the split court may, in
relation to the Judge’s courtroom, impose such other conditions in respect of
the form of electronic communication to be used to facilitate the split court
as the Judge considers appropriate.
Eligible persons
(3) For the purposes of the application of
this section to particular proceedings, eligible persons are such
persons as a Judge of the split court considers should be treated as eligible
persons for the purposes of the proceedings as facilitated in the Judge’s
courtroom.
(4) In this section:
communicate with, in relation to eligible
persons, means:
(a) in the case of video link—seeing
and hearing the eligible persons; and
(b) in the case of audio link—hearing
the eligible persons; and
(c) in the case of other appropriate
means of communication—as provided for in the applicable Rules of Court.
courtroom means the courtroom or other place
where a Judge of the split court is sitting.
electronic communication means:
(a) video link; or
(b) audio link; or
(c) other appropriate means of
communication.
Part XII—Recognition of decrees
103
Decrees under this Act
A decree under this Act has effect
throughout Australia and the external Territories.
104
Overseas decrees
(1) In this section:
applicant, in relation to a divorce or the
annulment of a marriage or the legal separation of the parties to a marriage,
means:
(a) the party at whose instance the divorce,
annulment or legal separation was effected; or
(b) where the divorce, annulment or
legal separation was effected at the instance of both the parties—each of the
parties.
marriage includes a purported marriage that
is void.
relevant date, in relation to a divorce or
the annulment of a marriage or the legal separation of the parties to a
marriage, means the date of the institution of the proceedings that resulted in
the divorce, annulment or legal separation.
respondent, in relation to a divorce or the
annulment of a marriage or the legal separation of the parties to a marriage,
means a party to the marriage, not being a party at whose instance the divorce,
annulment or legal separation was effected.
(2) For the purposes of this section, a
person who is a national of a country of which an overseas jurisdiction forms
part shall be deemed to be a national of that overseas jurisdiction.
(3) A divorce
or the annulment of a marriage, or the legal separation of the parties to a
marriage, effected in accordance with the law of an overseas jurisdiction shall
be recognized as valid in Australia where:
(a) the respondent was ordinarily
resident in the overseas jurisdiction at the relevant date;
(b) the applicant or, in a case
referred to in paragraph (b) of the definition of applicant
in subsection (1), one of the applicants, was ordinarily resident in the
overseas jurisdiction at the relevant date and either:
(i) the ordinary residence
of the applicant or of that applicant, as the case may be, had continued for
not less than 1 year immediately before the relevant date; or
(ii) the last place of
cohabitation of the parties to the marriage was in that jurisdiction;
(c) the applicant or the respondent
or, in a case referred to in paragraph (b) of the definition of applicant
in subsection (1), one of the applicants, was domiciled in the overseas
jurisdiction at the relevant date;
(d) the respondent was a national of
the overseas jurisdiction at the relevant date;
(e) the applicant or, in a case
referred to in paragraph (b) of the definition of applicant
in subsection (1), one of the applicants, was a national of the overseas
jurisdiction at the relevant date and either:
(i) the applicant or that
applicant, as the case may be, was ordinarily resident in that jurisdiction at
that date; or
(ii) the applicant or that
applicant, as the case may be, had been ordinarily resident in that
jurisdiction for a continuous period of 1 year falling, at least in part,
within the period of 2 years immediately before the relevant date; or
(f) the applicant or, in a case
referred to in paragraph (b) of the definition of applicant
in subsection (1), one of the applicants, was a national of, and present
in, the overseas jurisdiction at the relevant date and the last place of
cohabitation of the parties to the marriage was an overseas jurisdiction the
law of which, at the relevant date, did not provide for divorce, the annulment
of marriage or the legal separation of the parties to a marriage, as the case
may be.
(4) A divorce
or the annulment of a marriage, or the legal separation of the parties to a
marriage, shall not be recognized as valid by virtue of subsection (3)
where:
(a) under the common law rules of
private international law, recognition of its validity would be refused on the
ground that a party to the marriage had been denied natural justice; or
(b) recognition would manifestly be
contrary to public policy.
(5) Any divorce or any annulment of a
marriage, or any legal separation of the parties to a marriage, that would be
recognized as valid under the common law rules of private international law but
to which none of the preceding provisions of this section applies shall be
recognized as valid in Australia, and the operation of this subsection shall
not be limited by any implication from those provisions.
(6) Notwithstanding anything contained in
this section, the annulment in accordance with the law of an overseas
jurisdiction of a marriage solemnized under Part V of the Marriage Act
1961, being an annulment on the ground only of non‑compliance with
the formalities prescribed by the law of the jurisdiction in which the marriage
was solemnized, shall not be recognized as valid in Australia.
(7) For the purposes of this section, a court
in Australia, in considering the validity of a divorce or an annulment of a
marriage, or a legal separation of the parties to a marriage, effected under a
law of an overseas jurisdiction:
(a) where the respondent appeared in
the proceedings for the divorce, annulment or separation:
(i) is bound by the
findings of fact on the basis of which a court of the overseas jurisdiction
assumed jurisdiction to grant the divorce, annulment or separation; and
(ii) may treat as proved
any other facts found by a court of the overseas jurisdiction or otherwise
established for the purposes of the law of the overseas jurisdiction; or
(b) where the respondent did not
appear in the proceedings for the divorce, annulment or separation—may treat as
proved any facts found by a court of the overseas jurisdiction or otherwise
established for the purposes of the law of the overseas jurisdiction.
(8) For the purposes of the preceding
provisions of this section but without limiting the operation of those
provisions, a divorce or the annulment of a marriage, or the legal separation
of the parties to a marriage, shall be deemed to have been effected in
accordance with the law of an overseas jurisdiction if it was effected in
another overseas jurisdiction in circumstances in which, at the relevant date,
it would have been recognized as valid by the law of the first‑mentioned
overseas jurisdiction.
(9) Where a divorce or the annulment of a
marriage is to be recognized as valid in accordance with this section, the
capacity of a party to that marriage to re‑marry in accordance with the
law of Australia is not affected by the fact that the validity of the divorce
or annulment is not recognized under the law of some other jurisdiction.
(10) The preceding provisions of this section
apply in relation to divorces, annulments and legal separations effected
whether by decree, legislation or otherwise, whether before or after the
commencement of this Act, and, for the purposes of this section, any decree,
legislation or other process by which it is established that a purported
marriage was or is to become void shall be deemed to be an annulment of the
marriage.
104A
Recognition in external Territories
(1) In this section:
external Territory does not include Norfolk
Island.
overseas jurisdiction does not include an
external Territory.
(2) A divorce
or the annulment of a marriage, or the legal separation of the parties to a
marriage, effected in accordance with the law of an overseas jurisdiction that
is recognised as valid in Australia shall be recognised as valid in every
external Territory.
(3) A divorce
or the annulment of a marriage, or the legal separation of the parties to a
marriage, effected in accordance with the law of an external Territory that is
recognised as valid in Australia shall be recognised as valid in every other
external Territory.
Part XIII—Enforcement of decrees
105
Enforcement generally
(1) Subject to this Part, to the regulations
and to the applicable Rules of Court, all decrees made under this Act may be
enforced by any court having jurisdiction under this Act.
Note: For example, the Federal Magistrates Court can
enforce decrees made by the Family Court of Australia.
(2) Except as prescribed, a court shall not
entertain a proceeding under this Act for the enforcement of a decree made by
another court unless the decree is registered in the first‑mentioned
court in accordance with the regulations.
(2A) Subsection (2) does not prevent a
court from making an order under paragraph 90KA(c) or 90UN(c).
(3) Where a person bound by a decree made
under this Act has died, the decree may, by leave of:
(a) the court by which it was made; or
(b) any court in which the decree has
been registered in accordance with the regulations (whether the decree was
registered before or after the death of the person);
and on such terms and conditions as the court considers
appropriate, be enforced, in respect of liabilities that arose under the decree
before the death of that person, against the estate of that person.
106
Maintenance orders—more than 12 months in arrears
In determining whether to make an order
enforcing a maintenance order, a court must not require that there be special
circumstances that justify enforcing the maintenance order merely because the
maintenance payable under it is more than 12 months in arrears.
106A
Execution of instruments by order of court
(1) If:
(a) an order under this Act has
directed a person to execute a deed or instrument; and
(b) that person has refused or
neglected to comply with the direction or, for any other reason, the court
considers it necessary to exercise the powers of the court under this
subsection;
the court may appoint an officer of the court or other
person to execute the deed or instrument in the name of the person to whom the
direction was given and to do all acts and things necessary to give validity
and operation to the deed or instrument.
(2) If:
(a) a provision of a maintenance
agreement that has been registered under section 86 or approved by a court
under section 87 requires a person to execute a deed or instrument; and
(b) that person has refused or
neglected to comply with that provision of the maintenance agreement or, for
any other reason, the court considers it necessary to exercise the powers of
the court under this subsection;
the court may appoint an officer of the court or other
person to execute the deed or instrument in the name of the person required by
that provision of the maintenance agreement to execute the deed or instrument
and to do all acts and things necessary to give validity and operation to the
deed or instrument.
(3) The execution of a deed or instrument by
a person appointed under this section to execute that deed or instrument has
the same force and validity as if the deed or instrument had been executed by
the person directed by an order referred to in paragraph (1)(a), or
required by a provision of a maintenance agreement referred to in paragraph (2)(a),
to execute it.
(4) The court may make such order as it
considers just as to the payment of the costs and expenses of and incidental to
the preparation of the deed or instrument and its execution.
106B
Transactions to defeat claims
(1) In proceedings under this Act, the court
may set aside or restrain the making of an instrument or disposition by or on
behalf of, or by direction or in the interest of, a party, which is made or
proposed to be made to defeat an existing or anticipated order in those
proceedings or which, irrespective of intention, is likely to defeat any such
order.
(1A) If:
(a) a party to a marriage, or a party
to a de facto relationship, is a bankrupt; and
(b) the bankruptcy trustee is a party to
proceedings under this Act;
the court may set aside or restrain the making of an
instrument or disposition:
(c) which is made or proposed to be
made by or on behalf of, or by direction or in the interest of, the bankrupt;
and
(d) which is made or proposed to be
made to defeat an existing or anticipated order in those proceedings or which,
irrespective of intention, is likely to defeat any such order.
(1B) If:
(a) a party to a marriage, or a party
to a de facto relationship, is a debtor subject to a personal insolvency
agreement; and
(b) the trustee of the agreement is a
party to proceedings under this Act;
the court may set aside or restrain the making of an
instrument or disposition:
(c) which is made or proposed to be
made by or on behalf of, or by direction or in the interest of, the debtor; and
(d) which is made or proposed to be
made to defeat an existing or anticipated order in those proceedings or which,
irrespective of intention, is likely to defeat any such order.
(2) The court may order that any money or
real or personal property dealt with by any instrument or disposition referred
to in subsection (1), (1A) or (1B) may be taken in execution or charged
with the payment of such sums for costs or maintenance as the court directs, or
that the proceeds of a sale must be paid into court to abide its order.
(3) The court must have regard to the
interests of, and shall make any order proper for the protection of, a bona
fide purchaser or other person interested.
(4) A party or a person acting in collusion
with a party may be ordered to pay the costs of any other party or of a bona
fide purchaser or other person interested of and incidental to any such
instrument or disposition and the setting aside or restraining of the
instrument or disposition.
(4AA) An application may be made to the court for
an order under this section by:
(a) a party to the proceedings; or
(b) a creditor of a party to the
proceedings if the creditor may not be able to recover his or her debt if the
instrument or disposition were made; or
(c) any other person whose interests
would be affected by the making of the instrument or disposition.
(4A) In addition to the powers the court has
under this section, the court may also do any or all of the things listed in
subsection 80(1) or 90SS(1).
(5) In this section:
disposition includes:
(a) a sale or gift; and
(b) the issue, grant, creation,
transfer or cancellation of, or a variation of the rights attaching to, an
interest in a company or a trust.
interest:
(a) in a company includes:
(i) a share in or
debenture of the company; and
(ii) an option over a share
in or debenture of the company (whether the share or debenture is issued or
not); and
(b) in a trust includes:
(i) a beneficial interest
in the trust; and
(ii) the interest of a
settlor in property subject to the trust; and
(iii) a power of appointment
under the trust; and
(iv) a power to rescind or
vary a provision of, or to rescind or vary the effect of the exercise of a
power under, the trust; and
(v) an interest that is
conditional, contingent or deferred.
107
People not to be imprisoned for failure to comply with certain orders
(1) A person must not be imprisoned or
otherwise placed in custody because of a contravention of an order for the
payment of money made in a matrimonial cause or de facto financial cause.
(2) This section does not affect the
operation of:
(a) Division 13A of Part VII;
or
(b) Part XIIIA; or
(c) Part XIIIB.
109
Inter‑State enforcement of child bearing expenses order
(1) This section applies to the following
orders made under the law of a State or Territory:
(a) orders of a kind that may be made
under section 67D;
(b) orders for the payment of an
amount in relation to the maintenance of a child.
(2) The regulations may make provision for
and in relation to the enforcement in a State or Territory by a court having
jurisdiction under this Act of orders to which this section applies made by a
court in another State or Territory.
109A
Rules of Court relating to enforcement
(1) The power of the Judges, or a majority of
them, under section 123 to make Rules of Court extends to making Rules of
Court for or in relation to, or for or in relation to anything incidental to,
the enforcement by the court of:
(a) an order under this Act affecting
children; or
(b) an order under this Act (within
the meaning of Part XIIIA); or
(c) the Child Support (Registration
and Collection) Act 1988; or
(d) the Child Support (Assessment)
Act 1989;
and, in particular, for or in relation to any of the
specific matters mentioned in subsection (2).
(2) The specific matters are as follows:
(a) requiring a person to do any one
or more of the following:
(i) to attend before a
court or Registrar and answer questions or produce documents;
(ii) to deliver a document
or article to, or to a person specified by, a court or Registrar;
(iii) to transfer the
ownership of specified property to another person;
(iv) to give another person
possession (including exclusive possession) of specified property;
(v) to deliver a specified
chattel to another person;
(vi) to do, or abstain from
doing, any other act;
(b) prescribing the practice and
procedure to be followed for a hearing before a court or Registrar for the
purpose of giving effect to a requirement made as mentioned in subparagraph (a)(i);
(c) taking any one or more of the
actions mentioned in subsection (3) in respect of a person who:
(i) fails to pay the
amount of a fine imposed under Division 13A of Part VII or under Part XIIIA;
or
(ii) fails to pay an amount
payable under a bond entered into under Division 13A of Part VII or
under Part XIIIA; or
(iii) fails to pay under
section 66L an amount of maintenance for a person over the age of 18
years; or
(iv) fails to pay an amount
payable under a registered maintenance liability under the Child Support
(Registration and Collection) Act 1988 or the Child Support (Assessment)
Act 1989; or
(v) fails to comply with a
requirement made as mentioned in paragraph (a);
(d) delegating to a Registrar all or
any of the powers conferred on a court under Rules of Court made under this
section.
(3) Subject to
subsection (4), the actions in respect of a person the taking of which may
be provided for by Rules of Court as mentioned in paragraph (2)(c) are as
follows:
(a) the issue of a warrant for the
arrest of the person;
(b) the issue of a warrant of
execution against property of the person;
(c) the making of an order authorising
the taking of possession of property of the person;
(d) the making of an order for the
sequestration, and if necessary the sale, of property of the person;
(e) the making of an order for the
attachment, by garnishment or attachment of earnings, of debts owed to the
person;
(f) the appointment of a receiver of
property of the person.
(4) A reference in paragraph (2)(c) to a
failure to pay an amount is a reference to any such failure irrespective of the
length of the period during which the failure has continued, and includes a
reference to a failure to pay part of an amount.
(5) In this section:
property means real or personal property.
Note: Powers to make Rules of Court are also
contained in sections 26B and 37A.
109B
Rules of Court relating to enforcement—Federal Magistrates Court
(1) Section 109A applies to the making
of Rules of Court under section 81 of the Federal Magistrates Act 1999 in
a corresponding way to the way in which it applies to the making of Rules of
Court under section 123 of this Act.
(2) For the purposes of the application of
section 109A in accordance with subsection (1):
(a) the reference in subsection
109A(1) to the court is to be read as a reference to the Federal Magistrates
Court; and
(b) each reference in subsection
109A(2) to a court is to be read as a reference to the Federal Magistrates
Court; and
(c) each reference in subsection
109A(2) to a Registrar is to be read as a reference to a Registrar of the
Federal Magistrates Court.
(3) Section 109A has no effect in
relation to the Federal Magistrates Court except as provided by subsections (1)
and (2) of this section.
Part XIIIAA—International conventions, international agreements and
international enforcement
Division 1—International maintenance orders and agreements etc.
110
Overseas enforcement of maintenance orders etc.
(1) In this section:
jurisdiction with restricted reciprocity
means a country, or part of a country, outside Australia declared by the
regulations to be a jurisdiction with restricted reciprocity for the purposes
of this section.
maintenance order means:
(a) an order or determination (however
described) with respect to the maintenance of a party to a marriage;
(b) an order or determination (however
described) with respect to the maintenance of a child who has not attained the
age of 18 years, other than an order or determination of the kind referred to
in paragraph (c);
(c) an order or determination (however
described) with respect to the maintenance of a child who has not attained the
age of 18 years, being an order or determination that is expressed to continue
in force until a day that is later than, or for a period that extends beyond,
the day on which the child will attain that age, where the provision of
maintenance for the child is necessary to enable the child to complete a course
of study, vocational training or an apprenticeship or to continue his or her education
in any other way, or because the child is mentally or physically handicapped;
(d) an order or determination (however
described) with respect to the maintenance of a child who has attained the age
of 18 years, being an order or determination that is expressed to continue in
force until a day, or for a period, specified in the order or determination,
where the provision of maintenance for the child is necessary to enable the
child to complete a course of study, vocational training or an apprenticeship
or to continue his or her education in any other way, or because the child is
mentally or physically handicapped; and
(e) to the extent provided by the
regulations, an order made under section 67D, or an order or determination
(however described) that deals with matters of a kind in relation to which
orders may be made under that section.
reciprocating jurisdiction means a country,
or part of a country, outside Australia declared by the regulations to be a
reciprocating jurisdiction for the purposes of this section.
(2) The regulations may make provision for
and in relation to:
(a) the registration in, and
enforcement by, courts having jurisdiction under this Act of maintenance orders
made by courts or authorities of reciprocating jurisdictions or of
jurisdictions with restricted reciprocity;
(aa) the institution and prosecution,
by an officer of a court having jurisdiction under this Act, a prescribed
authority of the Commonwealth, of a State or Territory, or of another country
or a part of another country, or a person for the time being holding a
prescribed office under a law of the Commonwealth, of a State or Territory, or
of another country or a part of another country, in his, her or its discretion,
of proceedings:
(i) on behalf of the
person entitled to moneys payable under a maintenance order made by a court or
authority of a reciprocating jurisdiction or of a jurisdiction with restricted
reciprocity, for the enforcement by a court having jurisdiction under this Act
of that maintenance order; or
(ii) for the making of
orders for the confirmation of provisional orders made by courts of
reciprocating jurisdictions or of jurisdictions with restricted reciprocity,
being provisional orders referred to in paragraph (d);
(ab) the
institution and prosecution, by an authority entitled to moneys payable under a
maintenance order, in the authority’s discretion, of proceedings for the
enforcement of that maintenance order by a court having jurisdiction under this
Act;
(b) the transmission to appropriate
courts or authorities of reciprocating jurisdictions or of jurisdictions with
restricted reciprocity of maintenance orders made by courts having jurisdiction
under this Act for the purpose of securing the enforcement of those orders in those
jurisdictions;
(ba) the making of provisional
maintenance orders, and the transmission of such orders to appropriate courts
of reciprocating jurisdictions or jurisdictions with restricted reciprocity,
for the purposes of obtaining the confirmation, and securing the enforcement,
of those orders in those jurisdictions, and the effect in Australia of those
orders;
(c) the making of orders (including
provisional orders) for the variation, discharge, suspension or revival of
maintenance orders registered in accordance with regulations under this section
or of maintenance orders or provisional maintenance orders transmitted to other
jurisdictions in accordance with regulations under this section, and the effect
in Australia of orders under this paragraph;
(d) the making of orders for the
confirmation of provisional orders made by courts in reciprocating
jurisdictions or in jurisdictions with restricted reciprocity, being
provisional maintenance orders or provisional orders varying, discharging,
suspending or reviving maintenance orders, and the effect in Australia of
orders under this paragraph; and
(e) the making of orders for giving
effect to process certified or approved by a court in the United States of
America, being process relating to the provision of maintenance, and the effect
in Australia of orders under this paragraph.
(3) The regulations may make different
provision under this section in relation to reciprocating jurisdictions from
the provision made in relation to jurisdictions with restricted reciprocity.
110A
Registration and enforcement in Australia of overseas maintenance
agreements etc.
The regulations may make provision for
and in relation to the registration and enforcement in Australia of:
(a) overseas maintenance agreements;
or
(b) overseas administrative
assessments of maintenance liabilities.
110B
Transmission of agreements etc. to overseas jurisdictions
The regulations may make provision for
and in relation to the transmission, to appropriate courts or authorities of
prescribed overseas jurisdictions, of:
(a) agreements registered under
section 86; or
(b) agreements approved by courts
under section 87; or
(c) financial agreements made as
mentioned in subsection 90B(1) that contain matters referred to in paragraph
90B(2)(b); or
(d) financial agreements made as
mentioned in subsection 90C(1) that contain matters referred to in paragraph
90C(2)(b); or
(e) financial agreements made as
mentioned in subsection 90D(1) that contain matters referred to in paragraph
90D(2)(b); or
(f) administrative assessments of
maintenance liabilities;
for the purpose of securing the enforcement of those
agreements or assessments in those jurisdictions.
111
Convention on Recovery Abroad of Maintenance
The regulations may make such provision
as is necessary or convenient to enable the performance of the obligations of
Australia, or to obtain for Australia any advantage or benefit, under the
Convention on the Recovery Abroad of Maintenance signed at New York on 20 June
1956 but any such regulations shall not come into operation until the day on
which that Convention enters into force for Australia.
111A
Convention on Recognition and Enforcement of Decisions Relating to Maintenance
Obligations
The regulations may make such provision
as is necessary or convenient to enable the performance of the obligations of
Australia, or to obtain for Australia any advantage or benefit, under the
Convention on the Recognition and Enforcement of Decisions Relating to
Maintenance Obligations signed at The Hague on 2 October 1973 but any such
regulations shall not come into operation until the day on which that
Convention enters into force for Australia.
111AA
Maintenance obligations with New Zealand
(1) This section has effect despite anything
in Part VII.
(2) A court must not determine an application
for payment of child or spousal maintenance (whether under this Act or the
regulations) if:
(a) the person seeking payment is
habitually resident in New Zealand; and
(b) determining the application would
require the court to make a decision mentioned in Article 1.2 of the Australia‑New
Zealand Agreement.
Note: Article 1.2 of the Agreement is as follows:
For the purposes of this Agreement a
decision shall include:
(a) a child support assessment issued by an
administrative authority;
(b) an agreement to make payments for the
maintenance of a child or spouse which has been registered with an
administrative authority;
(c) an assessment, order or agreement suspending,
modifying or revoking a decision of the kind referred to in (a) or (b);
(d) an order for child maintenance made by a
judicial authority;
(e) an order for spousal maintenance made by a
judicial authority;
(f) an agreement to make payments for the
maintenance of a child or spouse which has been registered with a judicial
authority;
(g) an order or agreement suspending, modifying or
revoking a decision of the kind referred to in (d), (e) or (f);
(h) a liability to pay an amount to an
administrative authority for the maintenance of a child or as contribution to
the cost of government benefits paid to a payee for the maintenance of a child.
(3) In this section:
Australia‑New Zealand Agreement means
the Agreement between the Government of Australia and the Government of New
Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000.
111AB
Agreement between the Government of the United States of America and the
Government of Australia for the enforcement of Maintenance (Support)
Obligations
The regulations may make such provision
as is necessary or convenient to enable the performance of the obligations of
Australia, or to obtain for Australia any advantage or benefit, under the
Agreement between the Government of the United States of America and the
Government of Australia for the enforcement of Maintenance (Support)
Obligations, which was concluded and entered into force on 12 December
2002.
Division 2—International child abduction
111B
Convention on the Civil Aspects of International Child Abduction
(1) The regulations may make such provision as
is necessary or convenient to enable the performance of the obligations of
Australia, or to obtain for Australia any advantage or benefit, under the
Convention on the Civil Aspects of International Child Abduction signed at The
Hague on 25 October 1980 (the Convention) but any such
regulations shall not come into operation until the day on which that
Convention enters into force for Australia.
(1A) In relation to proceedings under
regulations made for the purposes of subsection (1), the regulations may make
provision:
(a) relating to the onus of
establishing that a child should not be returned under the Convention; and
(b) establishing rebuttable
presumptions in favour of returning a child under the Convention; and
(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.
(1B) The regulations made for the purposes of
this section must not allow an objection by a child to return under the
Convention to be taken into account in proceedings unless the objection imports
a strength of feeling beyond the mere expression of a preference or of ordinary
wishes.
(1C) A Central Authority within the meaning of
the regulations may arrange to place a child, who has been returned to
Australia under the Convention, with an appropriate person, institution or
other body to secure the child’s welfare until a court exercising jurisdiction
under this Act makes an order (including an interim order) for the child’s
care, welfare or development.
(1D) A Central Authority may do so despite any
orders made by a court before the child’s return to Australia.
(1E) Any regulations made for the purposes of
this section to give effect to Article 21 (rights of access) of the Convention
may have effect regardless of:
(a) whether an order or determination
(however described) has been made under a law in force in another Convention
country (within the meaning of the regulations made for the purposes of this
section), with respect to rights of access to the child concerned; or
(b) if the child was removed to Australia—when
that happened; or
(c) whether the child has been
wrongfully removed to, or retained in, Australia.
(2) Because of amendments of this Act made by
the Family Law Reform Act 1995:
(a) a parent or guardian of a child is
no longer expressly stated to have custody of the child; and
(b) a court can no longer make an
order under this Act expressed in terms of granting a person custody of, or
access to, a child.
(3) The purpose of subsection (4) is to
resolve doubts about the implications of these changes for the Convention. That
is the only purpose of the subsection.
(4) For the purposes of the Convention:
(a) each of the parents of a child
should be regarded as having rights of custody in respect of the child unless
the parent has no parental responsibility for the child because of any order of
a court for the time being in force; and
(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
(c) subject
to any order of a court for the time being in force, a person who has parental
responsibility for a child because of the operation of this Act or another
Australian law and is responsible for the day‑to‑day or long‑term
care, welfare and development of the child should be regarded as having rights
of custody in respect of the child; and
(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.
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)).
(5) Subsection (4)
is not intended to be a complete statement of the circumstances in which, under
the laws of the Commonwealth, the States and the Territories, a person has, for
the purposes of the Convention, custody of, or access to, a child, or a right
or rights of custody or access in relation to a child.
(5A) Subsections (1A) and (2) to (5) do
not, by implication, limit subsection (1).
(6) Expressions used in this section have the
same meaning as they have in Part VII.
Division 3—International agreements about adoption etc.
111C
International agreements about adoption etc.
(1) The regulations may make such provision
as is necessary or convenient to enable the performance of the obligations of Australia,
or to obtain for Australia any advantage or benefit, under the Convention on
Protection of Children and Cooperation in Respect of Intercountry Adoption
signed at The Hague on 29 May 1993.
(2) The regulations do not come into force
until the day on which the Convention enters into force for Australia.
(3) The regulations may make such provision
as is necessary or convenient to give effect to any bilateral agreement or
arrangement on the adoption of children made between:
(a) Australia, or a State or Territory
of Australia; and
(b) a prescribed overseas
jurisdiction.
(4) Regulations made for the purposes of subsection (3)
may, in particular:
(a) provide for the recognition of
adoptions made under a law of the prescribed overseas jurisdiction; and
(b) provide that the regulations do
not affect the operation of laws of a State or Territory that relate to
adoptions; and
(c) if
a State or Territory has made such a bilateral agreement or arrangement on
behalf of other States or Territories—give effect to the agreement or
arrangement so far as it relates to all of those States or Territories, or to
such of them as the regulations specify.
(5) Regulations made for the purposes of this
section may:
(a) confer jurisdiction on a federal
court (other than the High Court) or a court of a Territory; or
(b) invest a court of a State with
federal jurisdiction.
Such jurisdiction is in addition to any other jurisdiction
provided for under this Act.
(6) Regulations made for the purposes of subsection (5)
may make different provision in respect of matters arising in relation to
different States or Territories. (This subsection does not, by implication,
limit subsection 33(3A) of the Acts Interpretation Act 1901.)
(7) Subsections (4), (5) and (6) of this
section do not, by implication, limit subsections (1) and (3) of this
section.
(7A) The power of the Judges, or a majority of
them, under section 123 to make Rules of Court extends to making Rules of
Court for or in relation to the making of adoption orders.
(8) In this section, despite subsection 4(1),
Territory includes each external Territory.
Division 4—International protection of children
Subdivision A—Preliminary
111CA
Definitions
(1) In this Division:
another country means a Convention country or
a non‑Convention country.
Australia includes the external Territories.
central authority of a Convention country
means:
(a) if there is one central authority
of the Convention country under Article 29 of the Child Protection
Convention—the Convention country’s central authority; or
(b) otherwise—the central authority
designated, under Article 29 of the Child Protection Convention, as the
Convention country’s central authority to which any communication may be
addressed for transmission to the appropriate central authority of the
Convention country.
Child Protection Convention means the
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation
in respect of Parental Responsibility and Measures for the Protection of
Children signed at The Hague on 19 October 1996, a copy of the English
text of which is set out in Schedule 1.
Commonwealth central authority means the
Secretary of the Attorney‑General’s Department.
Commonwealth personal protection measure
relating to a child means a measure (within the meaning of the Child Protection
Convention) under this Act that is directed to the protection of the person of
the child.
Commonwealth property protection measure
relating to a child means a measure (within the meaning of the Child Protection
Convention) under this Act for appointing, or deciding the powers of, a
guardian of the child’s property.
competent authority:
(a) competent authority
of Australia means an entity that has responsibility or authority under the law
in force in Australia, or part of Australia, to take measures or make decisions
about:
(i) protecting the person
of a child; or
(ii) appointing or deciding
the powers of a guardian of a child’s property; and
(b) competent authority
of a Convention country means an entity that has responsibility or authority
under the law in force in the Convention country to take, or make decisions
about, a foreign measure relating to a child; and
(c) competent authority
of a non‑Convention country means an entity that has responsibility or
authority under the law in force in the country to take measures or make
decisions about:
(i) protecting the person
of a child; or
(ii) appointing or deciding
the powers of a guardian of a child’s property.
Convention country means a country, other
than Australia, for which the Child Protection Convention has entered into
force.
country of refuge of a child means a country
in which the child is present as a refugee child.
entity includes the following:
(a) an individual;
(b) a corporation;
(c) an unincorporated body;
(d) a government authority or body;
(e) a court or tribunal.
foreign measure means:
(a) a foreign personal protection
measure; or
(b) a foreign property protection
measure.
foreign personal protection measure relating
to a child means a measure (within the meaning of the Child Protection
Convention) taken by a competent authority of a Convention country for
protecting the person of the child.
foreign property protection measure relating
to a child means a measure (within the meaning of the Child Protection
Convention) taken by a competent authority of a Convention country for
appointing, or deciding the powers of, a guardian of the child’s property.
non‑Convention country means a country
for which the Child Protection Convention has not entered into force.
parental responsibility has the same meaning
as in the Child Protection Convention.
refugee child means a child:
(a) who is a refugee; or
(b) who is internationally displaced
due to disturbances occurring in his or her country of habitual residence; or
(c) whose country of habitual
residence cannot be determined.
Territory includes each external Territory.
(2) Unless the contrary intention appears,
expressions used:
(a) in this Division; or
(b) in regulations made for the
purposes of this Division;
have the same meaning as they have in the Child Protection
Convention.
111CB
Relationship between this Division and other provisions
(1) This Division has effect despite the rest
of this Act, except sections 69ZK and 111B and the regulations made for
the purposes of section 111B.
(2) This Division, except section 111CZ,
has effect subject to sections 69ZK and 111B and the regulations made for
the purposes of section 111B.
(3) Section 111CZ, and regulations made
for the purposes of that section, have effect despite section 69ZK.
Subdivision B—Jurisdiction for the person of a child
111CC
Application of this Subdivision
This Subdivision applies only if an
issue under this Act is whether a court, as opposed to any of the following
authorities, has jurisdiction to take measures directed to the protection of
the person of a child:
(a) a central authority or competent
authority of a Convention country;
(b) a competent authority of a non‑Convention
country.
111CD
Jurisdiction relating to the person of a child
(1) A court may exercise jurisdiction for a
Commonwealth personal protection measure only in relation to:
(a) a child who is present and
habitually resident in Australia; or
(b) a child who is present in Australia
and habitually resident in a Convention country, if:
(i) the child’s protection
requires taking the measure as a matter of urgency; or
(ii) the measure is
provisional and limited in its territorial effect to Australia; or
(iii) the child is a refugee
child; or
(iv) a request to assume
jurisdiction is made to the court by, or at the invitation of, a competent
authority of the country of the child’s habitual residence; or
(v) a competent authority
of the country of the child’s habitual residence agrees to the court assuming
jurisdiction; or
(vi) the court is exercising
jurisdiction in proceedings concerning the divorce or separation of the child’s
parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a
Convention country, if:
(i) the child is
habitually resident in Australia; or
(ii) the child has been
wrongfully removed from or retained outside Australia and the court keeps
jurisdiction under Article 7 of the Child Protection Convention; or
(iii) a request to assume
jurisdiction is made to the court by, or at the invitation of, a competent
authority of the country of the child’s habitual residence or country of
refuge; or
(iv) a competent authority
of the country of the child’s habitual residence or country of refuge agrees to
the court assuming jurisdiction; or
(v) the child is habitually
resident in a Convention country and the court is exercising jurisdiction in
proceedings concerning the divorce or separation of the child’s parents or the
annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia
and is a refugee child; or
(e) a child who is present in a non‑Convention
country, if:
(i) the child is
habitually resident in Australia; and
(ii) any of paragraphs
69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia,
if:
(i) the child is
habitually resident in a non‑Convention country; and
(ii) any of paragraphs
69E(1)(b) to (e) applies to the child.
(2) A court may only exercise jurisdiction in
accordance with subparagraph (1)(b)(ii) if the measure is not incompatible
with a foreign measure already taken by a competent authority of a Convention
country under Articles 5 to 10 of the Child Protection Convention.
(3) A court may only exercise jurisdiction in
accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth
personal protection measure relating to a child if:
(a) one or both of the child’s parents
are habitually resident in Australia when the proceedings referred to in that
subparagraph begin; and
(b) one or both of the parents have
parental responsibility for the child; and
(c) the jurisdiction of the court to
take the measure is accepted by the parents and each other person with parental
responsibility for the child; and
(d) the exercise of jurisdiction to
take the measure is in the best interests of the child; and
(e) the proceedings on the application
for divorce or separation of the child’s parents or the annulment of their
marriage have not been finalised.
(4) Paragraphs 111CD(1)(a) to (d) are subject
to the limitations in sections 111CE, 111CF and 111CH.
111CE
Limitation when a child is wrongfully removed from or retained outside a
Convention country
A court must not, other than in a case
of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a),
(b), (c) or (d) to take a Commonwealth personal protection measure relating to
a child if:
(a) the child has been wrongfully
removed from or retained outside a Convention country; and
(b) an authority of the Convention
country keeps jurisdiction under Article 7 of the Child Protection Convention.
111CF
Limitations when prior proceedings pending in a Convention country
(1) This section applies to the exercise of
jurisdiction by a court in accordance with paragraph 111CD(1)(a), subparagraph
111CD(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CD(1)(c) or (d).
(2) The court must not exercise that
jurisdiction to take a Commonwealth personal protection measure relating to a
child if:
(a) a corresponding measure has been
sought from a competent authority of a Convention country at the time of
commencement of the proceedings before the court; and
(b) any of the following applies:
(i) the child is
habitually resident in the Convention country;
(ii) the child is present
in the Convention country and is a refugee child;
(iii) a request to assume
jurisdiction is made to the competent authority of the Convention country by,
or at the invitation of, a competent authority of the country of the child’s
habitual residence or country of refuge;
(iv) a competent authority
of the country of the child’s habitual residence or country of refuge agrees to
the competent authority of the Convention country assuming jurisdiction;
(v) the competent authority
of the Convention country is exercising jurisdiction in proceedings concerning
the divorce or separation of the child’s parents or the annulment of their
marriage (but see subsection (3));
(vi) the child has been
wrongfully removed from or retained outside the Convention country and a
competent authority of the Convention country keeps jurisdiction under Article
7 of the Child Protection Convention.
(3) Subparagraph (2)(b)(v) only applies
(subject to subsection (4)) if:
(a) one or both of the child’s parents
are habitually resident in the Convention country when the proceedings referred
to in that subparagraph commence; and
(b) one or both of the parents has
parental responsibility for the child; and
(c) the jurisdiction of the competent
authority of the Convention country to take the measure is accepted by the
parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to
take the measure is in the best interests of the child; and
(e) the proceedings on the application
for divorce or separation of the child’s parents or the annulment of their
marriage have not been finalised.
(4) Subsection (2) does not apply if the
competent authority of the Convention country has declined jurisdiction or is
no longer considering taking the measure sought.
111CG
If a court is asked to assume jurisdiction
(1) A court may, if it considers that it is
in the child’s best interests, accept or reject a request made under Article 8
of the Child Protection Convention by, or at the invitation of, a competent
authority of a Convention country for the court to assume jurisdiction to take
a Commonwealth personal protection measure relating to the child.
(2) A court may order, or invite the parties
to proceedings before the court to ask, the Commonwealth central authority to
do both of the following in a way that the Commonwealth central authority
considers appropriate:
(a) to request, under Article 9 of the
Child Protection Convention, that a competent authority of a Convention country
agree to the court assuming jurisdiction to take a Commonwealth personal
protection measure relating to the child;
(b) to report to the court about the
outcome of the request.
(3) The court may only make the order or
issue the invitation under subsection (2) if it considers that it is
better placed than the competent authority to assess the child’s best
interests.
111CH
Limitation if a competent authority of a Convention country is asked to assume
jurisdiction
(1) The court may order, or invite the
parties to proceedings before the court to ask the Commonwealth central
authority, in a way the Commonwealth central authority considers appropriate,
to request a competent authority described in Article 8, paragraph 2, of the
Child Protection Convention:
(a) to assume jurisdiction under
Article 8 of the Convention for protecting the person of the child; and
(b) as the competent authority
considers necessary, to take measures to protect the person of the child; and
(c) to report to the court about the
outcome of the request.
(2) In addition, the court may make any other
order it considers necessary for an order under subsection (1).
(3) The court may only make the order or issue
the invitation under subsection (1) if the court considers that the
competent authority is better placed to assess the child’s best interests.
(4) The court may accept or reject a request
under Article 9 of the Child Protection Convention made by, or at the
invitation of, a competent authority of a Convention country described in
Article 8, paragraph 2 of the Convention, for the competent authority to assume
jurisdiction to take a measure for protecting the person of the child.
(5) If the competent authority assumes
jurisdiction under the request, a court must not exercise jurisdiction in
accordance with paragraph 111CD(1)(a), subparagraphs 111CD(1)(b)(iii) to (vi),
or paragraph 111CD(1)(c) or (d), while the competent authority continues to
exercise its jurisdiction.
111CI
When a certain Commonwealth personal protection measure lapses
(1) A Commonwealth personal protection
measure relating to a child that is taken by a court exercising jurisdiction in
accordance with subparagraph 111CD(1)(b)(i) or (ii) lapses if:
(a) a foreign personal protection
measure relating to the child is taken by a competent authority of a Convention
country; and
(b) any of the following applies:
(i) the child is
habitually resident in the Convention country;
(ii) the child is present
in the Convention country and is a refugee child;
(iii) a request to assume
jurisdiction is made to the competent authority of the Convention country by,
or at the invitation of, a competent authority of the country of the child’s
habitual residence;
(iv) a competent authority
of the country of the child’s habitual residence agrees to the competent
authority of the Convention country assuming jurisdiction;
(v) a competent authority
of the Convention country is exercising jurisdiction in proceedings concerning
the divorce or separation of the child’s parents or the annulment of their
marriage (but see subsection (2));
(vi) the child has been
wrongfully removed from or retained outside the Convention country and a
competent authority of the Convention country keeps jurisdiction under Article
7 of the Child Protection Convention.
(2) Subparagraph (1)(b)(v)
only applies if:
(a) one or both of the child’s parents
are habitually resident in the Convention country when the proceedings referred
to in that subparagraph are started; and
(b) one or both of the parents has
parental responsibility for the child; and
(c) the jurisdiction of the competent
authority of the Convention country to take the measure is accepted by the
parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to
take the measure is in the best interests of the child; and
(e) the proceedings on the application
for divorce or separation of the child’s parents or the annulment of their
marriage have not been finalised.
(3) A Commonwealth personal protection
measure relating to a child that is taken by a court exercising jurisdiction in
a case of urgency, or in the taking of a measure of a provisional character,
lapses if:
(a) a measure required by the
situation for protecting the person of the child is taken by a competent
authority of a non‑Convention country; and
(b) the measure is registered:
(i) in accordance with
regulations made for the purposes of section 70G; or
(ii) under a law of a State
or Territory.
Subdivision C—Jurisdiction for decisions about a guardian of a child’s
property
111CJ
Application of this Subdivision
This Subdivision applies only if an
issue under this Act is whether a court, as opposed to any of the following
authorities, has jurisdiction to appoint, or determine the powers of, a
guardian of a child’s property:
(a) a central authority or competent
authority of a Convention country;
(b) a competent authority of a non‑Convention
country.
111CK
Jurisdiction to appoint, or determine the powers of, a guardian for a child’s
property
(1) A court may exercise jurisdiction for a
Commonwealth property protection measure only in relation to:
(a) a child who is habitually resident
in Australia; or
(b) a child who is habitually resident
in a Convention country, if:
(i) the protection of the
child’s property in Australia requires taking the measure as a matter of
urgency; or
(ii) the measure is
provisional and limited in its territorial effect to property in Australia; or
(iii) a
request to assume jurisdiction is made to the court by, or at the invitation
of, a competent authority of the country of the child’s habitual residence or
country of refuge; or
(iv) a competent authority
of the country of the child’s habitual residence or country of refuge agrees to
the court assuming jurisdiction; or
(v) the child has been
wrongfully removed from or retained outside Australia and the court keeps
jurisdiction under Article 7 of the Child Protection Convention; or
(vi) the court is exercising
jurisdiction in proceedings concerning the divorce or separation of the child’s
parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in Australia
and is a refugee child; or
(d) a child who is present in a non‑Convention
country, if:
(i) the child is
habitually resident in Australia; and
(ii) any of paragraphs
69E(1)(b) to (e) applies to the child; or
(e) a child who is present in Australia,
if:
(i) the child is
habitually resident in a non‑Convention country; and
(ii) any of paragraphs
69E(1)(b) to (e) applies to the child.
(2) A court may only exercise jurisdiction in
accordance with subparagraph (1)(b)(ii) if the measure is not incompatible
with a foreign measure already taken by a competent authority of a Convention
country under Articles 5 to 10 of the Child Protection Convention.
(3) A court may only exercise jurisdiction in
accordance with subparagraph (1)(b)(vi) for a Commonwealth property
protection measure relating to a child if:
(a) one or both of the child’s parents
are habitually resident in Australia when the proceedings referred to in that
subparagraph begin; and
(b) one or both of the parents have
parental responsibility for the child; and
(c) the jurisdiction of the court to
take the measure is accepted by the parents and each other person with parental
responsibility for the child; and
(d) the exercise of jurisdiction to
take the measure is in the best interests of the child; and
(e) the proceedings on the application
for divorce or separation of the child’s parents or the annulment of their
marriage have not been finalised.
(4) Paragraphs (1)(a) to (c) are subject
to the limitations in sections 111CL, 111CM and 111CO.
111CL
Limitation when a child is wrongfully removed from or retained outside a
Convention country
A court must not, other than in a case
of urgency, exercise jurisdiction in accordance with paragraph 111CK(1)(a), (b)
or (c) to take a Commonwealth property protection measure relating to a child
if:
(a) the child has been wrongfully
removed from or retained outside a Convention country; and
(b) an authority of the Convention
country keeps jurisdiction under Article 7 of the Child Protection Convention.
111CM
Limitations when prior proceedings pending in a Convention country
(1) This section applies to the exercise of
jurisdiction by a court in accordance with paragraph 111CK(1)(a), subparagraph
111CK(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CK(1)(c).
(2) The court
must not exercise that jurisdiction to take a Commonwealth property protection
measure relating to a child if:
(a) a corresponding measure has been
sought from a competent authority of a Convention country at the time of
commencement of proceedings before the court; and
(b) any of the following applies:
(i) the child is
habitually resident in the Convention country;
(ii) the child is present
in the Convention country and is a refugee child;
(iii) a request to assume
jurisdiction is made to a competent authority of the country of the child’s
habitual residence or country of refuge;
(iv) a competent authority
of the country of the child’s habitual residence or country of refuge agrees to
the competent authority assuming jurisdiction;
(v) the competent authority
of the Convention country is exercising jurisdiction in proceedings concerning
the divorce or separation of the child’s parents or the annulment of their
marriage (but see subsection (3));
(vi) the child has been
wrongfully removed from or retained outside the Convention country and a
competent authority of the Convention country keeps jurisdiction under Article
7 of the Child Protection Convention.
(3) Subparagraph (2)(b)(v) only applies
(subject to subsection (4)) if:
(a) one or both of the child’s parents
are habitually resident in the Convention country when the proceedings referred
to in that subparagraph are commenced; and
(b) one or both of the parents have
parental responsibility for the child; and
(c) the jurisdiction of the competent
authority of the Convention country to take the measure is accepted by the
parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to
take the measure is in the best interests of the child; and
(e) the proceedings on the application
for divorce or separation of the child’s parents or the annulment of their
marriage have not been finalised.
(4) Subsection (2) does not apply if the
competent authority of the Convention country has declined jurisdiction or is
no longer considering taking the measure sought.
111CN
If a court is asked to assume jurisdiction
(1) A court may, if it considers that it is
in the child’s best interests, accept or reject a request made under Article 8
of the Child Protection Convention by, or at the invitation of, a competent
authority of a Convention country for the court to assume jurisdiction to take
a Commonwealth property protection measure relating to the child.
(2) A court may order, or invite the parties
to proceedings before the court to ask, the Commonwealth central authority to
do both of the following in a way that the Commonwealth central authority
considers appropriate:
(a) to request, under Article 9 of the
Child Protection Convention, that a competent authority of a Convention country
agree to the court assuming jurisdiction to take a Commonwealth property
protection measure relating to the child;
(b) to report to the court about the
outcome of the request.
(3) The court may only make the order or
issue the invitation under subsection (2) if it considers that it is
better placed than the competent authority to assess the child’s best
interests.
111CO
Limitation if a competent authority of a Convention country is asked to assume
jurisdiction
(1) The court may order, or invite the
parties to proceedings before the court to ask the Commonwealth central
authority, in a way the Commonwealth central authority considers appropriate,
to request a competent authority described in Article 8, paragraph 2, of the
Child Protection Convention:
(a) to assume jurisdiction under
Article 8 of the Convention for appointing, or deciding the powers of, a
guardian of the child’s property; and
(b) as the competent authority
considers necessary, to take a measure appointing, or deciding the powers of, a
guardian of the child’s property; and
(c) to
report to the court about the outcome of the request.
(2) In addition, the court may make any other
order it considers necessary for an order under subsection (1).
(3) The court may only make the order or
issue the invitation under subsection (1) if the court considers that the
competent authority is better placed to assess the child’s best interests.
(4) The court may accept or reject a request
under Article 9 of the Child Protection Convention made by, or at the
invitation of, a competent authority of a Convention country described in
Article 8, paragraph 2 of the Convention, for the competent authority to assume
jurisdiction to take a measure for the protection of the child’s property.
(5) If the competent authority assumes
jurisdiction under the request, a court must not exercise jurisdiction in
accordance with paragraph 111CK(a) or subparagraphs 111CK(1)(b)(iii) to (vi) or
paragraph 111CK(1)(c), while the competent authority continues to exercise its
jurisdiction.
111CP
When a certain Commonwealth property protection measure lapses
(1) A Commonwealth property protection
measure relating to a child that is taken by a court exercising jurisdiction in
accordance with subparagraph 111CK(1)(b)(i) or (ii) lapses if:
(a) a foreign property protection
measure relating to the child is taken by a competent authority of a Convention
country; and
(b) any of the following applies:
(i) the child is
habitually resident in the Convention country;
(ii) the child is present
in the Convention country and is a refugee child;
(iii) a request to assume
jurisdiction is made to the competent authority of the Convention country by,
or at the invitation of, a competent authority of the country of the child’s
habitual residence;
(iv) a competent authority
of the country of the child’s habitual residence agrees to the competent
authority of the Convention country assuming jurisdiction;
(v) a competent authority
of the Convention country is exercising jurisdiction in proceedings concerning
the divorce or separation of the child’s parents or the annulment of their
marriage (but see subsection (2));
(vi) the child
has been wrongfully removed from or retained outside the Convention country and
a competent authority of the Convention country keeps jurisdiction under
Article 7 of the Child Protection Convention.
(2) Subparagraph (1)(b)(v) only applies
if:
(a) one or both of the child’s parents
are habitually resident in the Convention country when the proceedings referred
to in that subparagraph are started; and
(b) one or both of the parents have
parental responsibility for the child; and
(c) the jurisdiction of the competent
authority of the Convention country to take the measure is accepted by the
parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to
take the measure is in the best interests of the child; and
(e) the proceedings on the application
for divorce or separation of the child’s parents or the annulment of their
marriage have not been finalised.
(3) A Commonwealth property protection
measure relating to a child that is taken by a court exercising jurisdiction in
a case of urgency, or in the taking of a measure of a provisional character,
lapses if:
(a) a measure required by the
situation for the appointment, or the determination of the powers, of a
guardian for a child’s property is taken by a competent authority of a non‑Convention
country; and
(b) the measure is registered:
(i) in accordance with
regulations made for the purposes of section 70G; or
(ii) under a law of a State
or Territory.
Subdivision D—Applicable law
111CQ
Meaning of law
In this Subdivision:
law does not include choice of law rules.
111CR
Applicable law generally
(1) This section applies to a court
exercising jurisdiction in accordance with Subdivision B or C.
(2) The court must apply the law of Australia
in exercising that jurisdiction.
(3) However, the court may in exceptional
circumstances apply or take into account the law of another country with
which:
(a) a child has a substantial
connection; or
(b) a child’s property is
substantially connected;
if the court considers the protection of the person of the
child, or the child’s property, requires the court to do so.
(4) In subsection (2):
law of Australia means:
(a) law in force throughout Australia;
or
(b) law in force in a part of Australia;
and includes the principles and rules of the common law
and of equity as so in force.
111CS
Applicable law concerning parental responsibility
(1) The principles set out in this section
apply despite anything in this Act.
(2) The circumstances in which parental
responsibility for a child is attributed to a person, or extinguished, by
operation of law (without the intervention of a court or appropriate authority)
are governed by the law that applies in the country of the child’s habitual
residence.
(3) The circumstances in which parental
responsibility for a child is attributed to a person, or extinguished, by an
agreement or a unilateral act (without the intervention of a court or
appropriate authority) are governed by the law that applies in the country of
the child’s habitual residence when the agreement or act takes effect.
(4) The exercise of parental responsibility
for a child is governed by the law applying in the country of the child’s
habitual residence.
(5) If a child’s country of habitual
residence changes to another country:
(a) parental responsibility for the
child that exists under the law applying in the country in which the child was
habitually resident continues to exist; and
(b) the circumstances in which
parental responsibility for the child is attributed by operation of law to a
person who does not already have such responsibility are governed by the law
applying in the country of the new habitual residence; and
(c) the exercise of parental
responsibility for the child is governed by the law applying in the country of
the new habitual residence.
(6) Despite subsections (2) to (5), if:
(a) the law that applies because of
this section is the law of a non‑Convention country; and
(b) the choice of law rules of that
non‑Convention country designate that the law of another non‑Convention
country applies; and
(c) the other non‑Convention
country would apply its own law;
the law of that other non‑Convention country applies
instead.
(7) The parental responsibility referred to
in subsection (2), (3), (4) or (5) may be ended, or the conditions of its
exercise changed, by a measure taken in accordance with section 111CD or
111CK.
(8) A court need not apply a principle set
out in subsection (2), (3), (4) or (5) if, on the application of an
interested person, the court considers that doing so would be manifestly
contrary to public policy having regard to the best interests of the child
concerned.
Subdivision E—Recognition of foreign measures
111CT
Effect of registered foreign measures
(1) This section applies to a foreign measure
that is registered in a court in accordance with regulations made for the
purposes of section 111CZ.
(2) The foreign measure:
(a) has the same force and effect as a
Commonwealth personal protection measure or a Commonwealth property protection
measure (as appropriate); and
(b) prevails over any earlier
inconsistent measure in force in Australia, including:
(i) an order registered
under section 70D or 70G; or
(ii) any other order made,
or agreement registered, under this Act.
Subdivision F—Co‑operation
111CU
Obligation to obtain consent to place child
(1) A court must obtain the consent of a competent
authority of a Convention country before placing a child in a foster family, or
in institutional care, in the Convention country.
(2) Before placing a child, the court may
order, or invite the parties to proceedings before the court to ask, the Commonwealth
central authority to consult a competent authority of the Convention country
concerned.
(3) If the court orders the Commonwealth
central authority to consult, then the court must provide the Commonwealth
central authority with a report on the child and the reasons for the proposed
placement.
111CV
Obligation to inform competent authority about serious danger to a child
(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.
(1) A court or person covered by this section
must inform a competent authority of another country about any information the
court or person may have about any serious danger to a child:
(a) whose residence has moved from Australia
to the other country; or
(b) who is present in the other
country.
(2) Subsection (1) has effect despite
any obligation of confidentiality imposed on the court or a person by this Act,
any other law or anything else (including a contract or professional ethics).
(3) A person is not liable in civil or
criminal proceedings, and is not to be considered to have breached any
professional ethics, in respect of the provision of information under subsection (1).
(4) Evidence of the provision of information
under subsection (1) is not admissible in any:
(a) court (whether or not exercising
jurisdiction under this Act); or
(b) tribunal or other body concerned
with professional ethics;
except where that evidence is given by the person who
provided the information.
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.
111CX
Jurisdiction for a location order or a Commonwealth information order
A court may make a location order under
section 67M or a Commonwealth information order under section 67N for
the purposes of the Child Protection Convention.
111CY
Giving information to central authorities and competent authorities in
Convention countries
(1) This section applies to:
(a) a court; and
(b) the Commonwealth central
authority; and
(c) central authorities of Australia
appointed as mentioned in Article 29, paragraph 2, of the Child Protection
Convention; and
(d) other competent authorities of Australia.
(2) If it
would be consistent with this Division or the Child Protection Convention to do
so, the court or authority may give information to:
(a) a court or an authority of Australia
to which this section applies; or
(b) a central authority or other
competent authority of a Convention country.
Subdivision G—Regulations
111CZ
Regulations to implement the Convention
(1) The regulations may make such provision
as is necessary or convenient to enable the performance of the obligations of Australia,
or to obtain for Australia any advantage or benefit, under the Child Protection
Convention.
(2) Regulations made for the purposes of this
section may, in particular:
(a) provide that the regulations do
not affect the operation of laws of a State or Territory that relate to the
implementation of the Child Protection Convention; and
(b) provide that specified provisions
of the Child Protection Convention have the force of law in Australia; and
(c) include a list of Convention
countries or territorial units of Convention countries.
(3) Regulations made for the purposes of this
section may:
(a) confer jurisdiction on a federal
court (other than the High Court) or a court of a Territory; or
(b) invest a court of a State with
federal jurisdiction.
Such jurisdiction is in addition to any other jurisdiction
provided for under this Act.
(4) Regulations made for the purposes of subsection (3)
may make different provision in respect of matters arising in relation to
different States or Territories. This subsection does not, by implication,
limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) Subsections (2),
(3) and (4) do not, by implication, limit subsection (1).
Division 5—Other matters
111D
Regulations may provide for rules of evidence
(1) Regulations made for the purposes of Part XIIIAA
may make provision in relation to the rules of evidence that are to apply in
proceedings under those regulations.
(2) Such provisions have effect despite any
inconsistency with the Evidence Act 1995 or with any other law about
evidence.
Part XIIIA—Sanctions for failure to comply with orders, and other
obligations, that do not affect children
Division 1—Interpretation
112AA
Interpretation
In this Part:
applicable Rules of Court means:
(a) in the case of the Federal
Magistrates Court—Rules of Court made under the Federal Magistrates Act 1999
to the extent to which those Rules of Court relate to this Act; or
(b) in any other case—Rules of Court
made under this Act.
applied provisions, in relation to a sentence
passed or an order made pursuant to paragraph 112AD(2)(b), means the provisions
of the laws of a State or Territory, as modified by regulations under
subsection 112AG(5), that, because of regulations under that subsection, apply
in relation to the sentence or order.
court enforceable agreement means:
(b) so much of a maintenance agreement
as a court has, pursuant to paragraph 87(11)(c), ordered may be enforced as if
it were an order of the court; or
(c) a maintenance agreement registered
in a court under subsection 86(1), or deemed, by subsection 87(6), to be
registered in a court.
maintenance order, in relation to a court,
means an order made by the court under this Act that deals with the maintenance
of a person other than a child.
order under this Act, in relation to a court,
means:
(a) an order (however described) made
by the court under this Act (other than a parenting order); or
(b) an injunction granted by the court
under section 90SS or 114 except in so far as the injunction is for the
protection of a child; or
(c) an undertaking given to, and
accepted by, the court in proceedings under this Act other than proceedings
that relate wholly or partly to, or to the making of, a parenting order; or
(d) a subpoena issued under the
applicable Rules of Court in proceedings under this Act other than a subpoena
issued in, and so issued to a party to, proceedings that relate wholly or
partly to, or to the making of, a parenting order; or
(e) a court enforceable agreement; or
(f) a bond:
(i) entered into under an
order of a court under this Act other than an order under Division 13A of
Part VII; or
(ii) entered into for the
purposes of subsection 112AE(5);
and includes an order, injunction, agreement or bond that:
(g) is an order under this Act made by
another court because of paragraph (a), (b), (e) or (f); and
(h) has been registered in the first‑mentioned
court.
112AB
Meaning of contravene an order
(1) A person shall be taken for the purposes
of this Part to have contravened an order under this Act 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) in any other case—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.
112AC
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 Part, a reasonable excuse for
contravening an order under this Act include, but are not limited to, the
circumstances set out in subsection (2).
(2) A person
(in this subsection called the respondent) shall be taken to have
had a reasonable excuse for contravening an order under this Act 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.
Division 2—Sanctions for failure to comply with orders
112AD
Sanctions for failure to comply with orders
(1) If a court having jurisdiction under this
Act is satisfied that a person has, without reasonable excuse, contravened an
order under this Act, the court may make an order for the imposing, in respect
of the person, of one or more of the sanctions available to be imposed under subsection (2),
being a sanction or sanctions that the court considers to be the most
appropriate in the circumstances.
(1A) The power given to the court under subsection (1)
in respect of a contravention of a maintenance order applies even if the order
has been complied with before the matter of the contravention comes before the
court.
(2) The sanctions that are available to be
imposed by the court are:
(a) to require the person to enter
into a bond in accordance with section 112AF; or
(b) to impose a sentence by order on
the person, or make an order directed to the person, in accordance with section 112AG;
or
(c) to fine the person not more than
60 penalty units; or
(d) subject to subsection (2A),
to impose a sentence of imprisonment on the person in accordance with section 112AE.
(2A) The court must not impose a sentence of
imprisonment on the person under paragraph (2)(d) in respect of a
contravention of a maintenance order unless the court is satisfied that the
contravention was intentional or fraudulent.
(3) An order under subsection (1) may be
expressed to take effect immediately, or at the end of a specified period or on
the occurrence of a specified event.
(4) Where a court makes an order under subsection (1),
the court may make such other orders as the court considers necessary to ensure
compliance with the order that was contravened.
112AE
Sentences of imprisonment
(1) A sentence of imprisonment imposed on a
person pursuant to paragraph 112AD(2)(d) shall 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
pursuant to the sentence for 12 months or such lesser period as is specified by
the court;
whichever happens first.
(2) A court shall not sentence a person to
imprisonment pursuant to paragraph 112AD(2)(d) 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 pursuant to any of the other paragraphs of
subsection 112AD(2).
(3) If a court sentences a person to
imprisonment pursuant to paragraph 112AD(2)(d), the court shall:
(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.
(4A) A court that sentences a person to
imprisonment under paragraph 112AD(2)(d) may:
(a) suspend the sentence upon the
terms and conditions determined by the court; and
(b) terminate a suspension made under paragraph (a).
(5) A court, when sentencing a person to
imprisonment under paragraph 112AD(2)(d) 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 (6) after he or she has served a specified part of
the term of imprisonment.
(6) A bond for the purposes of subsection (5)
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.
(7) Without limiting the circumstances in which
a court may discharge an order under section 112AK, 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.
(8) To avoid doubt, the serving by a person
of a period of imprisonment under a sentence imposed on the person under
paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order
does not affect the person’s liability to make the payment.
112AF
Bonds
(1) This section provides for bonds that a
court may require a person to enter into under paragraph 112AD(2)(a).
(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 a condition requiring the person 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 fails:
(i) to enter into the
bond; or
(ii) having entered into
the bond—to act in accordance with the bond.
112AG
Additional sentencing alternatives
(1) Subject to this section, where:
(a) under the law of a participating
State or a participating Territory, a court is empowered (whether generally or
in particular cases) to impose a sentence by order or make an order of a kind
to which subsection (3) applies in respect of a person convicted of an
offence against the law of the State or Territory; and
(b) an
arrangement under section 112AN in respect of the State or Territory makes
provision for and in relation to the carrying out of sentences imposed, or
orders made, of that kind under this Division;
a court exercising jurisdiction in the State or Territory
may, pursuant to paragraph 112AD(2)(b), impose a sentence or make an order of
that kind.
(2) A sentence imposed on a person, or an
order directed to a person, pursuant to paragraph 112AD(2)(b):
(a) shall be such that the total
number of hours during which the sentence or order regulates the conduct of the
person does not exceed the maximum period in relation to the State or Territory
in which the sentence is imposed or 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) This subsection applies to sentences or
orders of the following kinds:
(a) a sentence or order known as:
(i) a community service
order;
(ii) a work order;
(iii) a sentence of periodic
detention;
(iv) an attendance centre
order;
(v) a sentence of weekend
detention;
(vi) an attendance order; or
(vii) a community based
order;
(b) a sentence or order that is
similar to a sentence or order referred to in paragraph (a);
(c) a sentence or order prescribed for
the purposes of this subsection.
(4) Where a
court proposes to impose a sentence on a person, or make an order directed to a
person, pursuant to paragraph 112AD(2)(b), it shall, before doing so, explain
or cause to be explained to the person, in language likely to be readily
understood by the person:
(a) the purpose and effect of the
proposed sentence or order;
(b) the consequences that may follow
if the person fails to comply with the proposed sentence or order or with any
requirements made in relation to the proposed sentence or order by or under the
applied provisions; and
(c) if the proposed sentence or order
may be revoked or varied under the applied provisions—that the proposed
sentence or order may be so revoked or varied.
(5) Where a court exercising jurisdiction
under section 112AD in a particular State or Territory imposes a sentence
or makes an order pursuant to paragraph 112AD(2)(b), the provisions of the laws
of the State or Territory with respect to a sentence or order of that kind that
is imposed or made under those laws shall, to the extent provided by the
regulations and subject to such modifications as are specified in the
regulations, apply in relation to the sentence or order.
(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 112AN is in force.
participating Territory means a Territory in
relation to which an agreement under section 112AN is in force.
112AH
Failure to comply with sentence passed, or order made, pursuant to paragraph
112AD(2)(b)
(1) This section applies where a court has,
pursuant to paragraph 112AD(2)(b):
(a) imposed a sentence on a person; or
(b) made an order directed to a
person.
(2) If the court (whether or not constituted
by the judge or magistrate who imposed the sentence or made the order) is
satisfied that the person has, without reasonable excuse, failed to comply with:
(a) the sentence or order; or
(b) any requirements made in relation
to the sentence or order by or under the applied provisions;
the court may take action under subsection (8).
(8) The court may:
(a) without prejudice to the
continuance of the sentence or order, impose a fine not exceeding 10 penalty
units on the person; or
(b) revoke the sentence or order and,
subject to subsection (9), deal with the person, for the contravention in
respect of which the sentence was passed or the order was made, in any manner
in which he or she could have been dealt with for that contravention if:
(i) the sentence had not
been imposed, or the order had not been made; and
(ii) the person was before
the court under section 112AD in respect of the contravention.
Note: For the value of a penalty unit, see
subsection 4AA(1) of the Crimes Act 1914.
(9) In dealing
with the person as mentioned in paragraph (8)(b), the court shall, in
addition to any other matters that it considers should be taken into account,
take into account:
(a) the fact that the sentence was
imposed or the order was made;
(b) anything done under the sentence
or order; and
(c) any fine imposed, and any other
order made, for or in respect of the contravention.
112AK
Variation and discharge of orders
(1) Subject to this section, an order made
under section 112AD may be varied or discharged:
(a) if the court that made the order
is the Family Court—by the Family Court; or
(b) in any other case—by the court
that made the order or the Family Court.
(2) A variation of an order under section 112AD
shall be such that the order, as varied, is an order that could have been made
under that section in respect of the contravention in respect of which the
first‑mentioned order was made.
(3) If a court
discharges an order under section 112AD it may, subject to this Division,
make another order under that section in respect of the contravention in
respect of which the first‑mentioned order was made.
(4) Where a court varies or discharges an
order made under section 112AD, the court may give such directions as to
the effect of the variation or discharge as the court considers appropriate.
112AM
Relationship between Division 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; 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 112AD
in respect of the contravention of the order shall either:
(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.
112AN
Arrangements with States and Territories for carrying out of sentences and
orders
(1) The Governor‑General may make
arrangements with the relevant authority of a State or a Territory for:
(a) the exercise of powers, and the
performance of functions, by officers of the State or Territory; and
(b) the making available of facilities
of the State or Territory;
for and in relation to the carrying out of sentences
imposed, and orders made, under this Division.
(2) In this
section:
relevant authority means:
(a) in relation to a State—the
Governor of the State;
(b) in relation to the Australian
Capital Territory—the Chief Minister of the Australian Capital Territory;
(c) in relation to the Northern
Territory—the Administrator of the Northern Territory; and
(d) in relation to Norfolk Island—the
Administrator of Norfolk Island.
112AO
Division does not limit operation of section 105
Nothing in this Division is intended to
limit the operation of section 105.
Part XIIIB—Contempt of court
112AP
Contempt
(1) Subject to subsection (1A), this
section applies to a contempt of a court that:
(a) does not constitute a
contravention of an order under this Act; or
(b) constitutes a contravention of an
order under this Act and involves a flagrant challenge to the authority of the
court.
(1A) This section does not apply to a contempt
that constitutes a contravention of a maintenance order if the order has been
complied with before the matter of the contravention comes before the court.
(2) In spite of any other law, a court having
jurisdiction under this Act may punish a person for contempt of that court.
(3) The applicable Rules of Court may provide
for practice and procedure as to charging with contempt and the hearing of the
charge.
(4) Where a natural person is in contempt,
the court may punish the contempt by committal to prison or fine or both.
(5) Where a corporation is in contempt, the
court may punish the contempt by sequestration or fine or both.
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good
behaviour.
(7) Where a person is committed to prison for
a term for contempt, the court may order the person’s discharge before the
expiry of that term.
(8) To avoid doubt, the serving by a person
of a period of imprisonment as a result of a contempt of a court arising out of
a failure by the person to make a payment in respect of the maintenance of
another person does not affect the first‑mentioned person’s liability to
make the payment.
(9) In this section:
order under this Act means an order under
this Act affecting children or an order under this Act within the meaning of
Part XIIIA.
Part XIV—Declarations and injunctions
112A
Interpretation
In this Part, marriage
includes a void marriage.
113
Proceedings for declarations
In proceedings of the kind referred to
in paragraph (b) of the definition of matrimonial cause in
subsection 4(1), the court may make such declaration as is justified.
114
Injunctions
(1) In proceedings of the kind referred to in
paragraph (e) of the definition of matrimonial cause in
subsection 4(1), the court may make such order or grant such injunction as it
considers proper with respect to the matter to which the proceedings relate,
including:
(a) an injunction for the personal
protection of a party to the marriage;
(b) an injunction restraining a party
to the marriage from entering or remaining in the matrimonial home or the
premises in which the other party to the marriage resides, or restraining a
party to the marriage from entering or remaining in a specified area, being an
area in which the matrimonial home is, or the premises in which the other party
to the marriage resides are, situated;
(c) an injunction restraining a party
to the marriage from entering the place of work of the other party to the
marriage;
(d) an injunction for the protection
of the marital relationship;
(e) an injunction in relation to the
property of a party to the marriage; or
(f) an injunction relating to the use
or occupancy of the matrimonial home.
(2) In exercising its powers under subsection (1),
the court may make an order relieving a party to a marriage from any obligation
to perform marital services or render conjugal rights.
(2A) In a de facto financial cause (other
than proceedings referred to in, or relating to, paragraph (e) or (f) of
the definition of de facto financial cause in subsection
4(1)) the court may:
(a) make such order or grant such
injunction as it considers proper with respect to the use or occupancy of a
specified residence of the parties to the de facto relationship or either
of them; and
(b) if it makes an order or grants an
injunction under paragraph (a)—make such order or grant such injunction as
it considers proper with respect to restraining a party to the de facto
relationship from entering or remaining in:
(i) that residence; or
(ii) a specified area in
which that residence is situated; and
(c) make such order or grant such
injunction as it considers proper with respect to the property of the parties
to the de facto relationship or either of them.
Sections 90SB and 90SK apply in relation to an order
or injunction under this subsection in a corresponding way to the way in which
those sections apply in relation to an order under section 90SM.
Note 1: This subsection does not apply to proceedings
referred to in paragraph (g) of the definition of de facto
financial cause that relate to proceedings referred to in
paragraph (e) or (f) of that definition.
Note 2: The same requirements in sections 90SB
(length of relationship etc.) and 90SK (geographical requirements) for
section 90SM orders must be satisfied for orders and injunctions under
this subsection.
(3) A court exercising jurisdiction under
this Act in proceedings other than proceedings to which subsection (1)
applies may grant an injunction, by interlocutory order or otherwise (including
an injunction in aid of the enforcement of a decree), in any case in which it
appears to the court to be just or convenient to do so and either
unconditionally or upon such terms and conditions as the court considers
appropriate.
(4) If a party to a marriage is a bankrupt, a
court may, on the application of the other party to the marriage, by
interlocutory order, grant an injunction under subsection (3) restraining
the bankruptcy trustee from declaring and distributing dividends amongst the
bankrupt’s creditors.
(5) Subsection (4) does not limit subsection (3).
(6) If a party to a marriage is a debtor
subject to a personal insolvency agreement, a court may, on the application of
the other party to the marriage, by interlocutory order, grant an injunction
under subsection (3) restraining the trustee of the agreement from disposing
of (whether by sale, gift or otherwise) property subject to the agreement.
(7) Subsection (6) does not limit subsection (3).
114AA
Powers of arrest
(1) Where:
(a) an injunction is in force under
section 114 for the personal protection of a person; and
(b) a police officer believes, on
reasonable grounds, that the person against whom the injunction is directed (in
this section called the respondent) has, since the injunction was
granted, breached the injunction by:
(i) causing, or
threatening to cause, bodily harm to the person referred to in paragraph (a);
or
(ii) harassing, molesting
or stalking that person;
the police officer may arrest the respondent without
warrant.
Note: Section 122AA authorises the use of
reasonable force in making an arrest.
(3) Where a
police officer arrests a person pursuant to subsection (1):
(a) the
police officer shall:
(i) ensure that the person
is brought before the court that granted the injunction, or another court
having jurisdiction under this Act, before the expiration of the relevant
period; and
(ii) take all reasonable
steps to ensure that, before the person is so brought before a court, the
person on whose application the injunction under section 114 was granted
is aware that the first‑mentioned person has been arrested and of the
court before which the person is to be brought; and
(b) the person shall not be released
before the expiration of the relevant period except pursuant to an order of the
court that granted the injunction or another court having jurisdiction under
this Act;
but nothing in this subsection authorizes the keeping of
the person in custody after the expiration of the relevant period.
(4) Where a person is brought before a court
in accordance with subsection (3), the court shall:
(a) if there is an application before
the court for the person to be dealt with for breach of the
injunction—forthwith proceed to hear and determine that application; or
(b) if there is no application before
the court as mentioned in paragraph (a)—order that the person be released
forthwith.
(5) Where:
(a) a person is brought before a court
in accordance with subsection (3);
(b) the court proceeds to hear and
determine an application for the person to be dealt with for breach of an
injunction as mentioned in paragraph (4)(a); and
(c) at the expiration of the relevant
period the proceedings have not been determined;
the person may be kept in custody after the expiration of
the relevant period until:
(d) the court gives its decision on
the proceedings;
(e) the court orders that the person
be released; or
(f) the court adjourns the hearing
for a period of more than 24 hours;
whichever happens first.
(7) In this section:
relevant period, in relation to a person’s
arrest, means the period starting when the person is arrested and
ending at the close of business on the next day that is not a Saturday, Sunday
or public holiday.
114AB
Operation of State and Territory laws
(1) Sections 68B, 68C, 114 and 114AA are
not intended to exclude or limit the operation of a prescribed law of a State
or Territory that is capable of operating concurrently with those sections.
(2) Where a person has instituted a
proceeding or taken any other action under a prescribed law of a State or
Territory in respect of a matter in respect of which the person would, but for
this subsection, have been entitled to institute a proceeding under section 68B
or 114, the person is not entitled to institute a proceeding under section 68B
or 114 in respect of that matter, unless:
(a) where the person instituted a
proceeding:
(i) the proceeding has
lapsed, been discontinued, or been dismissed; or
(ii) the orders (if any)
made as a result of the institution of the proceeding have been set aside or
are no longer in force; and
(b) where the person took other
action—neither that person nor any other person is required, at the time that
the person institutes a proceeding under section 68B or 114, to do an act,
or to refrain from doing an act.
Part XIVA—The Australian Institute of Family Studies
114A
Interpretation
In this Part, unless the contrary
intention appears:
Director means the Director of the Institute.
Institute means the Australian Institute of
Family Studies established by this Part.
114B
Establishment of Institute
(1) There is established by this Part an
Institute by the name of the Australian Institute of Family Studies.
(1A) There is to be a Director of the Institute.
(1B) The Institute consists of:
(a) the Director; and
(b) the staff referred to in
section 114M.
Note: The Institute does not have a legal identity
separate from the Commonwealth.
(2) The functions of the Director are:
(a) to promote, by the conduct,
encouragement and co‑ordination of research and other appropriate means,
the identification of, and development of understanding of, the factors
affecting marital and family stability in Australia, with the object of
promoting the protection of the family as the natural and fundamental group
unit in society; and
(b) to advise and assist the Minister
in relation to the making of grants, and with the approval of the Minister to
make grants, out of moneys available under appropriations made by the
Parliament, for purposes related to the functions of the Institute and the
supervising of the employment of grants so made.
(2A) The function of the Institute (other than
the Director) is to assist the Director in the performance of his or her
functions.
(3) The Minister may:
(a) request the Director to arrange
for the Institute to engage in a particular activity (whether research or
otherwise) in relation to a particular matter that is within the functions of
the Institute; and
(b) after consultation with the Director,
specify the priority that is to be given to the activity.
114C
Minister may give directions to Director
(1) Subject to subsection (2), the
Minister may, by legislative instrument, give directions to the Director as to
the performance of his or her functions.
(2) Directions given by the Minister under
subsection (1) must be of a general nature only.
(3) The Director must comply with any
direction given by the Minister under subsection (1).
114D
Appointment of Director
(1) The Director is to be appointed by the
Minister by written instrument.
Note: The Director is eligible for reappointment:
see subsection 33(4A) of the Acts Interpretation Act 1901.
(2) The Director is to be appointed on a full‑time
basis.
114E
Term of appointment
The Director holds office for the period
specified in the instrument of appointment. The period must not exceed 5 years.
114F
Acting appointments
(1) The Minister may appoint a person to act
as the Director:
(a) during a vacancy in the office of
Director, whether or not an appointment has previously been made to the office;
or
(b) during any period, or during all
periods, when the Director is absent from duty or from Australia, or is, for
any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
114G
Director’s remuneration
(1) The Director is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the
Director is to be paid the remuneration that is prescribed.
(2) The Director is to be paid the allowances
that are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
114H
Outside employment
The Director must not engage in paid
employment outside the duties of the Director’s office without the Minister’s
approval.
114J
Leave of absence
(1) The Director has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Director leave
of absence, other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
114K
Disclosure of interests
The Director must give written notice to
the Minister of all interests, pecuniary or otherwise, that the Director has or
acquires and that could conflict with the proper performance of the Director’s
functions.
114L
Other terms and conditions
The Director holds office on the terms
and conditions (if any) in relation to matters not covered by this Act that are
determined by the Minister.
114LA
Resignation
(1) The Director may resign his or her
appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day
it is received by the Minister or, if a later day is specified in the
resignation, on that later day.
114LB Termination
of appointment
(1) The Minister may terminate the
appointment of the Director for misbehaviour or physical or mental incapacity.
(2) The Minister may terminate the
appointment of the Director if:
(a) the Director:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the Director is absent, except on
leave of absence, without reasonable excuse; or
(c) the Director fails, without
reasonable excuse, to comply with section 114H (outside employment); or
(d) the Director fails, without
reasonable excuse, to comply with section 114K (disclosure of interests).
114LC
Annual reports
The
Director must, as soon as practicable after 30 June in each year, prepare
and give to the Minister, for presentation to the Parliament, a report on the
Institute’s operations during the year ending on that 30 June.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
114LD
Delegation
(1) The Director may delegate all or any of
his or her functions or powers under this Part to an SES employee, or an acting
SES employee, of the Institute. The delegation must be in writing.
Note: For other powers of delegation, see
section 53 of the Financial Management and Accountability Act 1997 and
section 78 of the Public Service Act 1999.
(2) In performing a delegated function or
exercising a delegated power, a delegate must comply with any written
directions of the Director.
114M
Staff
(1) The staff of the Institute are to be
persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Director and the APS employees
assisting the Director together constitute a Statutory Agency; and
(b) the Director is the Head of that
Statutory Agency.
(3) The Director may, with the approval of
the Minister, engage persons to assist the Institute as consultants or
otherwise.
(4) The terms and conditions of engagement of
persons under subsection (3) are as determined by the Director from time
to time.
Part XV—Miscellaneous
115
Family Law Council
(1) The Attorney‑General may establish
a Family Law Council consisting of persons appointed by the Attorney‑General
in accordance with subsection (2).
(2) The Council shall consist of a Judge of
the Family Court and such other judges, persons appointed or engaged under the Public
Service Act 1999, officers of the Public Service of a State, family
counsellors, family dispute resolution practitioners and other persons as the
Attorney‑General thinks fit.
(3) It is the function of the Council to
advise and make recommendations to the Attorney‑General, either of its
own motion or upon request made to it by the Attorney‑General,
concerning:
(a) the working of this Act and other
legislation relating to family law;
(b) the working of legal aid in
relation to family law; and
(c) any other matters relating to
family law.
(4) The Attorney‑General shall appoint
one of its members to be Chairperson of the Council.
(5) A member of the Council shall be paid
such remuneration as is determined by the Remuneration Tribunal, but, if no determination
of that remuneration by the Tribunal is in operation, the member shall be paid
such remuneration as is prescribed.
(5A) A member of the Council shall be paid such
allowances as are prescribed.
(5B) Subsections (5) and (5A) have effect
subject to the Remuneration Tribunal Act 1973.
(5C) Subject to this section, a member of the
Council holds office for such period, not exceeding 3 years, as is specified in
the instrument of appointment, but is eligible for re‑appointment.
(6) A member (including the Chairperson) may
resign by writing signed and delivered to the Attorney‑General.
(6A) The Attorney‑General may terminate
the appointment of a member by reason of the misbehaviour, or physical or
mental incapacity, of the member.
(6B) If a member becomes bankrupt, applies to
take the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit, the Attorney‑General shall terminate the
appointment of that member.
(7) Meetings of the Council shall be convened
by the Chairperson or the Attorney‑General.
(8) The Council shall cause records to be
kept of its meetings.
(9) The Council shall, as soon as practicable
after 30 June in each year, prepare and furnish to the Attorney‑General
a report of the operations of the Council during the year that ended on that 30 June.
(10) The Attorney‑General shall cause a
copy of a report furnished under subsection (9) to be laid before each
House of the Parliament within 15 sitting days of that House after the receipt
of the report by the Attorney‑General.
(11) For the purposes of this section, a
Federal Magistrate is taken to be a judge.
116C
Payments to legal practitioners by legal aid bodies
(1) The regulations may, in relation to
matters included in a class of matters arising under this Act, under the
regulations or under the applicable Rules of Court, fix or limit, or provide
for the fixing or limiting of, the amounts that may be paid by relevant authorities
to legal practitioners acting in such matters.
(2) A relevant authority that pays, to a
legal practitioner acting in a matter arising under this Act, an amount that
exceeds the amount that the relevant authority is permitted, by regulations
made under subsection (1), to pay to that legal practitioner in respect of
that matter is, if the Minister so determines by instrument in writing, liable
to pay to the Commonwealth such amount as the Minister specifies in the
instrument, not being an amount greater than the amount of the excess.
(3) An amount payable by a relevant authority
to the Commonwealth in accordance with a determination of the Minister under subsection (2)
is a debt due by the relevant authority to the Commonwealth.
(4) This section, and regulations made under subsection (1),
bind the Crown in right of the Commonwealth, of each of the States, of the Northern
Territory and of Norfolk Island.
(5) In this section:
relevant authority means a person, authority
or body (including an authority or body established by or under a law of a
State or Territory) that, from time to time, receives relevant funding.
relevant funding, in relation to a person,
authority or body, means funding received, whether directly or indirectly, by
the person, authority or body from the Commonwealth for the purposes of, or in
connection with, the provision of legal assistance by the person, authority or
body in connection with matters arising under this Act.
117
Costs
(1) Subject to subsection (2),
subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party
to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the
court is of opinion that there are circumstances that justify it in doing so,
the court may, subject to subsections (2A), (4) and (5) and the applicable
Rules of Court, make such order as to costs and security for costs, whether by
way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should
be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of
each of the parties to the proceedings;
(b) whether any party to the
proceedings is in receipt of assistance by way of legal aid and, if so, the
terms of the grant of that assistance to that party;
(c) the conduct of the parties to the
proceedings in relation to the proceedings including, without limiting the
generality of the foregoing, the conduct of the parties in relation to
pleadings, particulars, discovery, inspection, directions to answer questions,
admissions of facts, production of documents and similar matters;
(d) whether the proceedings were
necessitated by the failure of a party to the proceedings to comply with
previous orders of the court;
(e) whether any party to the
proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the
proceedings has made an offer in writing to the other party to the proceedings
to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court
considers relevant.
(3) To avoid doubt, in proceedings in which an
independent children’s lawyer for a child has been appointed, the court may
make an order under subsection (2) as to costs or security for costs,
whether by way of interlocutory order or otherwise, to the effect that each
party to the proceedings bears, in such proportion as the court considers just,
the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an
independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has
received legal aid in respect of the proceedings; or
(b) the court considers that a party
to the proceedings would suffer financial hardship if the party had to bear a
proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2)
against that party in relation to the costs of the independent children’s
lawyer.
(5) In considering what order (if any) should
be made under subsection (2) in proceedings in which an independent
children’s lawyer has been appointed, the court must disregard the fact that the
independent children’s lawyer is funded under a legal aid scheme or service
established under a Commonwealth, State or Territory law or approved by the
Attorney‑General.
117AA
Costs in proceedings relating to overseas enforcement and international
Conventions
(1) In proceedings under regulations made for
the purposes of Part XIIIAA, the court can only make an order as to costs
(other than orders as to security for costs):
(a) in favour of a party who has been
substantially successful in the proceedings; and
(b) against a person or body who holds
or held an office or appointment under those regulations and is a party to the
proceedings in that capacity.
Note: For another case where the court can also make
an order as to costs, see subsection (3).
(2) However, the order can only be made in
respect of a part of the proceedings if, during that part, the party against
whom the order is to be made asserted a meaning or operation of this Act or
those regulations that the court considers:
(a) is not reasonable given the terms
of the Act or regulations; or
(b) is not convenient to give effect
to Australia’s obligations under the Convention concerned, or to obtain for Australia
the benefits of that Convention.
(3) In proceedings under regulations made for
the purposes of section 111B, the court can also make an order as to costs
that is:
(a) against a party who has wrongfully
removed or retained a child, or wrongfully prevented the exercise of rights of
access (within the meaning of the Convention referred to in that section) to a
child; and
(b) in respect of the necessary
expenses incurred by the person who made the application, under that
Convention, concerning the child.
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.
117AC
Security for costs
Despite section 117, a court must
not make an order for security for costs in a proceeding involving a Convention
country that is listed in Schedule 4A to the regulations.
117A
Reparation for certain losses and expenses relating to children
(1) Where:
(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;
(b) a person has been convicted of an
offence against section 65Y or 65Z in respect of a child;
(c) 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 an injunction granted, or an order made, under section 114;
or
(d) a person has been found to be in
contempt of a court exercising jurisdiction under this Act by reason of having
taken a child away from another person or having refused or failed to deliver a
child to another person;
a court having jurisdiction under this Act may, subject to
subsection (2):
(e) on the application of the
Commonwealth—order the person to make reparation to the Commonwealth or to a
Commonwealth instrumentality, by way of money payment or otherwise, in respect
of any loss suffered, or any expense incurred, by the Commonwealth or the
Commonwealth instrumentality, as the case may be, in recovering the child and
returning the child to a person; or
(f) on the application of any other
person—order the first‑mentioned person to make reparation to that other
person, by way of money payment or otherwise, in respect of any loss suffered,
or expense incurred, by that other person in recovering the child and, if
applicable, returning the child to a person.
(2) Nothing in subsection (1) empowers a
court to order a person to make reparation to the Commonwealth, to a
Commonwealth instrumentality or to another person in respect of any loss
suffered, or any expense incurred, where a court has, under section 21B of
the Crimes Act 1914, ordered the first‑mentioned person to make
reparation to the Commonwealth, to the Commonwealth instrumentality or to that
other person, as the case may be, in respect of the same loss suffered or
expense incurred.
117B
Interest on moneys ordered to be paid
(1) Subject to any order made by the court
under subsection (2), where, in proceedings under this Act, a court makes
an order for the payment of money (other than an order for the payment by way
of maintenance of a periodic sum), interest is payable, at the rate prescribed
by the applicable Rules of Court, from:
(a) the date on which the order is
made; or
(b) the date on which the order takes
effect;
whichever is later, on so much of the money as is from
time to time unpaid.
(2) A court that makes an order for the
payment of money as mentioned in subsection (1) may order that interest is
not payable on the money payable under the first‑mentioned order or may
order:
(a) that interest is payable at a rate
specified in the order, being a rate other than the rate prescribed by the
applicable Rules of Court; or
(b) that interest is payable from a
date specified in the order, being a date other than the date from which the
interest would be payable under subsection (1).
117C
Offers of settlement
(1) This section applies to proceedings under
this Act other than the following proceedings:
(a) proceedings under Part VI;
(b) proceedings under Division 6,
9 or 13 of Part VII;
(c) proceedings to enforce a decree or
injunction made under Division 6, 9 or 13 of Part VII.
(2) If:
(a) a party to proceedings to which
this section applies makes an offer to the other party to the proceedings to
settle the proceedings; and
(b) the offer is made in accordance
with any applicable Rules of Court;
the fact that the offer has been made, or the terms of the
offer, must not be disclosed to the court in which the proceedings are being
heard except for the purposes of the consideration by the court of whether it
should make an order as to costs under subsection 117(2) and the terms of any
such order.
(3) A judge of the court is not disqualified
from sitting in the proceedings only because the fact that an offer has been
made is, contrary to subsection (2), disclosed to the court.
118
Frivolous or vexatious proceedings
(1) The court may, at any stage of
proceedings under this Act, if it is satisfied that the proceedings are
frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the
court considers just; and
(c) if the court considers
appropriate, on the application of a party to the proceedings—order that the
person who instituted the proceedings shall not, without leave of a court
having jurisdiction under this Act, institute proceedings under this Act of the
kind or kinds specified in the order;
and an order made by a court under paragraph (c) has
effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order
made by that court under paragraph (1)(c).
119
Married persons may sue each other
Either party to a marriage may bring
proceedings in contract or in tort against the other party.
120
Criminal conversation, adultery and enticement
After the commencement of this Act, no
action lies for criminal conversation, damages for adultery, or for enticement
of a party to a marriage.
121
Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or
periodical publication, by radio broadcast or television or by other electronic
means, or otherwise disseminates to the public or to a section of the public by
any means, any account of any proceedings, or of any part of any proceedings,
under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or
associated with, a party to the proceedings or is, or is alleged to be, in any
other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by
imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the
applicable Rules of Court, publishes in a newspaper or periodical publication,
by radio broadcast or television or by other electronic means, or otherwise
disseminates to the public or to a section of the public by any means (otherwise
than by the display of a notice in the premises of the court), a list of
proceedings under this Act, identified by reference to the names of the parties
to the proceedings, that are to be dealt with by a court is guilty of an
offence punishable, upon conviction by imprisonment for a period not exceeding
one year.
(3) Without limiting the generality of subsection (1),
an account of proceedings, or of any part of proceedings, referred to in that
subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title,
pseudonym or alias of the person;
(ii) the address of any
premises at which the person resides or works, or the locality in which any
such premises are situated;
(iii) the physical
description or the style of dress of the person;
(iv) any employment or
occupation engaged in, profession practised or calling pursued, by the person
or any official or honorary position held by the person;
(v) the relationship of the
person to identified relatives of the person or the association of the person
with identified friends or identified business, official or professional
acquaintances of the person;
(vi) the recreational
interests, or the political, philosophical or religious beliefs or interests,
of the person; or
(vii) any real or personal
property in which the person has an interest or with which the person is
otherwise associated;
being particulars that are
sufficient to identify that person to a member of the public, or to a member of
the section of the public to which the account is disseminated, as the case
requires;
(b) in the case of a written or
televised account or an account by other electronic means—it is accompanied by
a picture of the person; or
(c) in the case of a broadcast or
televised account or an account by other electronic means—it is spoken in whole
or in part by the person and the person’s voice is sufficient to identify that
person to a member of the public, or to a member of the section of the public
to which the account is disseminated, as the case requires.
(4) A reference in subsection (1) or (2)
to proceedings shall be construed as including a reference to proceedings
commenced before the commencement of section 72 of the Family Law
Amendment Act 1983.
(5) An offence against this section is an
indictable offence.
(8) Proceedings for an offence against this
section shall not be commenced except by, or with the written consent of, the
Director of Public Prosecutions.
(9) The preceding provisions of this section
do not apply to or in relation to:
(a) the communication, to persons
concerned in proceedings in any court, of any pleading, transcript of evidence
or other document for use in connection with those proceedings; or
(b) the communication of any pleading,
transcript of evidence or other document to:
(i) a body that is
responsible for disciplining members of the legal profession in a State or
Territory; or
(ii) persons
concerned in disciplinary proceedings against a member of the legal profession
of a State or Territory, being proceedings before a body that is responsible
for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that
grants assistance by way of legal aid, of any pleading, transcript of evidence
or other document for the purpose of facilitating the making of a decision as
to whether assistance by way of legal aid should be granted, continued or
provided in a particular case; or
(d) the publishing of a notice or
report in pursuance of the direction of a court; or
(da) the publication by the court of
lists of proceedings under this Act, identified by reference to the names of
the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona
fide intended primarily for use by the members of any profession, being:
(i) a separate volume or
part of a series of law reports; or
(ii) any other publication
of a technical character; or
(f) the publication or other
dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a
member of a profession, in connection with the practice by that person of that
profession or in the course of any form of professional training in which that
person is involved; or
(ia) to an individual who is
a party to any proceedings under this Act, in connection with the conduct of
those proceedings; or
(ii) to a person who is a
student, in connection with the studies of that person; or
(g) publication of accounts of
proceedings, where those accounts have been approved by the court.
(10) Applicable Rules of Court made for the
purposes of subsection (2) may be of general or specially limited
application or may differ according to differences in time, locality, place or
circumstance.
Note: Powers to make Rules of Court are also
contained in sections 26B, 37A, 109A and 123.
(11) In this
section:
court
includes:
(a) an officer of a court
investigating or dealing with a matter in accordance with this Act, the
regulations or the Rules of Court; and
(b) a tribunal established by or under
a law of the Commonwealth, of a State or of a Territory.
electronic means includes:
(a) in the form of data, text or
images by means of guided and/or unguided electromagnetic energy; or
(b) in the form of speech by means of
guided and/or unguided electromagnetic energy, where the speech is processed at
its destination by an automated voice recognition system.
122
Rights of legal practitioners
A person who is, under Part VIIIA
of the Judiciary Act 1903, entitled to practise in any federal court as
a barrister or solicitor, or as both, has the like right to practise in any
State court exercising jurisdiction under this Act.
122AA
Use of reasonable force in arresting persons
A person who is authorised or directed
by a provision of this Act, or by a warrant issued under a provision of this
Act, to arrest another person may use such reasonable force as is necessary to
make the arrest or to prevent the escape of that person after the arrest.
122A
Powers of entry and search for purposes of arresting persons
(1) Where:
(a) a person (in this subsection
called the authorised person) is, by a provision of this Act, or
by a warrant issued under a provision of this Act, authorised to arrest another
person; and
(b) the
authorised person reasonably believes that the other person is in or on a
particular searchable place;
the authorised person may, without warrant, enter and
search the searchable place.
(2) Where a person may enter and search a
vehicle, vessel or aircraft under subsection (1), the person may, for the
purposes of effecting the entry and search, stop and detain the vehicle, vessel
or aircraft.
(3) In exercising powers under this section,
a person may use such force and assistance as is necessary and reasonable to
enable the exercise of the powers.
(4) In this section:
searchable place means:
(a) premises or a place; or
(b) a vehicle, vessel or aircraft.
122B
Arrangements with States and Territories
(1) The Governor‑General may make an
arrangement with the relevant authority of a State or internal Territory for
the performance by an officer of the State or Territory of a function under
this Act.
(2) In this
section:
officer includes the holder of a judicial
office.
relevant authority means:
(a) in relation to a State—the Governor
of the State; or
(b) in relation to the Australian
Capital Territory—the Chief Minister for the Australian Capital Territory; or
(c) in relation to the Northern
Territory—the Administrator of the Northern Territory.
123
Rules of Court
(1) The Judges, or a majority of them, may
make Rules of Court not inconsistent with this Act, providing for or in
relation to the practice and procedure to be followed in the Family Court and
any other courts exercising jurisdiction under this Act, and for and in relation
to all matters and things incidental to any such practice and procedure, or
necessary or convenient to be prescribed for the conduct of any business in
those courts and, in particular:
(a) providing for and in relation to
the attendance of witnesses; and
(b) providing for and in relation to
the manner of service of process of the Family Court or another court
exercising jurisdiction under this Act, and for and in relation to dispensing
with such service; and
(ba) providing for and in relation to
trial management; and
(c) providing for and in relation to
the time and manner of institution of appeals in and to the Family Court; and
(d) prescribing the duties of officers
of the Family Court; and
(f) prescribing the seals and stamps
to be used in the Family Court and in any other court exercising jurisdiction
under this Act; and
(g) prescribing matters relating to
the costs of proceedings (including solicitor and client costs and party and
party costs) and the assessment or taxation of those costs; and
(h) authorizing
a court to refer to an officer of the court for investigation, report and
recommendation claims or applications for or relating to any matters before the
court; and
(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
(k) regulating the procedure of a
court upon receiving a report of an officer who has made an investigation
referred to in paragraph (h); and
(m) providing for and in relation to
the procedure of a court exercising its powers under section 112AP to deal
with a person for contempt of the court; and
(ma) for the purposes of Divisions 2
and 3 of Part XI, providing for the conditions relating to the use of
video links, audio links and other appropriate means of communication; and
(n) providing for and in relation to
the making of an application for a divorce order in relation to a marriage
jointly by both parties to the marriage; and
(o) providing for and in relation to
the appointment, by the Attorney‑General, of a guardian ad litem for
a party to proceedings under this Act; and
(q) providing for and in relation to:
(i) the forfeiture of
bonds and recognizances entered into in pursuance of requirements made under
this Act; and
(ii) the recovery of any
money that may be due to the Commonwealth under such bonds and recognizances or
from any person who has become a surety under this Act; and
(r) providing for and in relation to
the attachment of moneys payable by the Commonwealth, a State, a Territory or
the Administration of a Territory, or by an authority of the Commonwealth, of a
State or of a Territory (other than moneys as to which it is provided by any
law of the Commonwealth, of a State or of a Territory that they are not liable
to attachment); and
(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
(sa) prescribing the functions and
duties of assessors and of family consultants and arbitrators; and
(sb) providing for and in relation to
the making of applications under this Act for arbitration and for orders under sections 13E
and 13F; and
(sc) prescribing the disputes,
proceedings or matters that may or may not be arbitrated under this Act; and
(sca) prescribing the disputes,
proceedings or matters in relation to which family consultants may, or must
not, perform their functions; and
(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
(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
(sf) providing for and in relation to:
(i) the registration of
awards under section 13H; and
(ii) the time and manner of
making applications for review of registered awards under section 13J or
for orders setting aside registered awards under section 13K; and
(sg) providing for and in relation to
conciliation conferences; and
(t) prescribing matters incidental to
the matters specified in the preceding paragraphs; and
(u) prescribing penalties not
exceeding 50 penalty units for offences against the standard Rules of Court.
(1A) A reference in subsection (1) to a court
exercising jurisdiction under this Act does not include a reference to
the Federal Magistrates Court.
(2) The Legislative Instruments Act 2003
(other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in
relation to rules of court made under this section:
(a) as if a reference to a legislative
instrument were a reference to a rule of court; and
(b) as if a reference to a rule‑maker
were a reference to the Chief Judge acting on behalf of the Judges; and
(c) subject to such further
modifications or adaptations as are provided for in regulations made under
paragraph 125(1)(baa) of this Act.
(2A) Despite the fact that section 16 of
the Legislative Instruments Act 2003 does not apply in relation to rules
of court made under this Act, the Department may provide assistance in the
drafting of any of those Rules if the Chief Judge so desires.
(3) In this section, Judge
means:
(a) a Judge of the Family Court of Australia;
or
(b) where the Governor‑General
has made an arrangement with the Governor of a State under section 112 in
relation to the performance, by a Judge of the Family Court of that State, of
functions under this section—that Judge.
Note: The power to make Rules of Court conferred by
this section is extended by section 109A and subsection 111C(7A). Powers
to make Rules of Court are also contained in sections 26B and 37A.
124
Rules Advisory Committee
(1) There shall be a Rules Advisory Committee
consisting of such Judges of the Family Court of Australia, such Judges of
Family Courts of States and such other persons as are appointed in accordance
with this section.
(2) The function of the Rules Advisory
Committee is to provide to the Judges referred to in section 123 such
advice in relation to the making of standard Rules of Court as is requested
from time to time by those Judges.
(3) Members of the Rules Advisory Committee
shall be appointed by the Governor‑General on the nomination of the
Attorney‑General made by the Attorney‑General after consultation
with the Chief Judge of the Family Court of Australia.
(4) A Judge of a Family Court of a State
shall not be appointed as a member of the Rules Advisory Committee unless the
Governor‑General has made an arrangement with the Governor of the State
under section 112 in relation to the performance, by that Judge, of
functions as a member of the Rules Advisory Committee.
(5) The members of the Rules Advisory
Committee shall be paid such allowances in respect of expenses in connection
with their duties as are prescribed.
(6) A member of the Rules Advisory Committee
may resign by writing signed and delivered to the Governor‑General.
124A
Regulations in relation to overseas‑related maintenance obligations etc.
(1) The regulations may make provision for,
and in relation to, the following matters:
(a) giving effect to an international
agreement that relates to maintenance obligations arising from family
relationship, parentage or marriage;
(b) maintenance obligations arising
from family relationship, parentage or marriage, where:
(i) the maintenance is
claimed by or on behalf of a person who is in a reciprocating jurisdiction; or
(ii) the person from whom
the maintenance is claimed is in a reciprocating jurisdiction.
(2) Regulations made for the purposes of this
section may:
(a) confer jurisdiction on a federal
court (other than the High Court) or a court of a Territory; or
(b) invest a court of a State with
federal jurisdiction.
(4) In this
section:
international agreement means an agreement
whose parties are:
(a) Australia and a foreign country;
or
(b) Australia and 2 or more foreign
countries.
reciprocating jurisdiction means:
(a) a foreign country; or
(b) a
part of a foreign country;
that is prescribed by the regulations to be a
reciprocating jurisdiction for the purposes of this section.
125
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters that are
required or permitted by this Act to be prescribed or are necessary or
convenient to be prescribed for carrying out or giving effect to this Act and,
in particular:
(a) providing for and in relation to
the service overseas, pursuant to any convention between Australia and another
country, of any documents in proceedings under this Act; and
(b) providing for and in relation to
the transcription of proceedings under this Act and the making available of
copies of transcripts of those proceedings; and
(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
(baa) modifying or adapting the
provisions of the Legislative Instruments Act 2003 (other than the
provisions of Part 5 of that Act or any other provisions whose
modification or adaptation would affect the operation of that Part) in their
application to the Family Court and any other court exercising jurisdiction
under this Act; and
(bb) prescribing requirements for
arbitrators; and
(bba) the registration of awards made in
section 13E arbitration and relevant property or financial arbitration;
and
(bc) prescribing, or providing for or
in relation to, anything that may be dealt with in Rules of Court made under
paragraph 123(1)(sa), (sb), (sc), (sca), (sd), (sda), (sdb), (sdc), (se), (sea)
or (seb); and
(c) prescribing court fees to be
payable in respect of proceedings under this Act; and
(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
(d) exempting persons included in
particular classes of persons from liability to pay court fees prescribed under
paragraph (c) and fees prescribed under paragraph (ca); and
(e) providing for the refund of court
fees prescribed under paragraph (c) and fees prescribed under paragraph (ca)
that have been paid in particular circumstances; and
(f) providing
for an officer of a court exercising jurisdiction under this Act, a prescribed
authority of the Commonwealth, of a State or of a Territory or the person for
the time being holding a prescribed office under a law of the Commonwealth, of
a State or of a Territory, in his, her or its discretion, to institute and
prosecute proceedings, on behalf of the person entitled to moneys payable under
a child maintenance order under Part VII or a maintenance order under Part VIII,
for the purpose of enforcing payment of those moneys; and
(g) providing for and in relation to
priority as between the execution of orders made under the regulations, or
under the repealed Act, for the attachment of moneys payable by the
Commonwealth, a State, a Territory or the Administration of a Territory, or by
an authority of the Commonwealth, of a State or of a Territory (other than
moneys as to which it is provided by any law of the Commonwealth, of a State or
of a Territory that they are not liable to attachment) and the execution of
orders made in accordance with the Maintenance Orders (Commonwealth
Officers) Act 1966.
(2) Court fees payable in pursuance of
regulations made under this section in respect of proceedings in a Family Court
of a State are payable to the State.
(3) To the extent of any inconsistency
between regulations and Rules of Court, the regulations prevail.