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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Family Law
Amendment Bill 1999
No. ,
1999
(Attorney-General)
A
Bill for an Act to amend the Family Law Act 1975 and other Acts, and for
related purposes
ISBN: 0642
409250
Contents
Family Law Act
1975 3
Family Law Act
1975 30
Child Support (Assessment) Act
1989 38
Child Support (Registration and Collection) Act
1988 39
Family Law Act
1975 39
A Bill for an Act to amend the Family Law Act 1975
and other Acts, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Family Law Amendment Act
1999.
(1) Subject to subsection (2), this Act commences 28 days after the day on
which it receives the Royal Assent.
(2) Item 41 of Schedule 3 is taken to have commenced immediately after the
commencement of section 26 of the Family Court of Australia (Additional
Jurisdiction and Exercise of Powers) Act 1988.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Paragraph 37A(1)(k)
Repeal the paragraph.
2 Section 60C (table item
6)
Repeal the item, substitute:
3 Section 60C (after table item
13)
Insert:
4 After section 63D
Insert:
If a person who is a family and child counsellor, a family and child
mediator or a legal practitioner gives advice or assistance to people in
connection with the making by them of a parenting plan, the person must explain
to them, in language likely to be readily understood by them:
(a) the obligations that the plan creates; and
(b) the consequences that may follow if either of them fails to comply
with any of those obligations; and
(c) the assistance that is available to help people who experience
difficulties in complying with a parenting plan.
5 After section 65A
Insert:
Measures designed, as stage 1 of a parenting compliance regime, 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).
Remedial measures designed, as stage 2 of a parenting compliance regime,
to enable parents to resolve issues of conflict about parenting and to help in
the negotiation of improved parenting are contained in Subdivision B of Division
13A.
Punitive measures designed, as stage 3 of a parenting compliance regime,
to ensure that, as a last resort, a parent is punished for deliberate disregard
of an order made by a court are contained in Subdivision C of Division
13A.
6 After section 65D
Insert:
(1) It is the duty of the court, when making a parenting order:
(a) if a person to whom the order is directed is represented by a legal
practitioner—to request the practitioner to explain the effect of the
order to the person; or
(b) if any of the persons to whom the order is directed is not represented
by a legal practitioner—to explain the effect of the order to the person
or each of the persons.
(2) If a request is made by the court to a legal practitioner under
paragraph (1)(a), it is the duty of the legal practitioner to explain the effect
of the order to the person whom he or she represents.
(3) An explanation under subsection (1) or (2) must explain, in language
likely to be readily understood by the person to whom the explanation is
given:
(a) the obligations that the order creates; and
(b) the availability of programs to help people to understand their
responsibilities under parenting orders; and
(c) the consequences that may follow if the person contravenes the order;
and
(d) the availability and use of location and recovery orders to ensure
that parenting orders are complied with.
7 After Division 13 of Part
VII
Insert:
The objects of this Division are to ensure that:
(a) if a person contravenes an order under this Act affecting children,
the court may do either or both of the following:
(i) make an order requiring the person to participate in a post-separation
parenting program, provided that the program is available within a reasonable
distance from the person’s place of residence or place of work;
or
(ii) make a further parenting order that compensates for contact forgone
as a result of the contravention; and
(b) if:
(i) a person who is required to participate in such a program
participates, or refuses or fails to participate, in the program and afterwards
contravenes an order under this Act affecting children; or
(ii) a person in respect of whom such a further parenting order is made
afterwards contravenes an order under this Act affecting children;
the court will take punitive action in respect of the person.
In this Division:
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 community service order
made under paragraph 70NJ(3)(a), means the provisions of the laws of a State or
Territory (as modified by regulations made under subsection 70NK(3)), that,
because of regulations made under that subsection, apply in relation to the
order.
community service order means an order of a kind known as a
community service order.
contravened an order has the meaning given by section
70NC.
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 in proceedings
under this Act 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 that relate wholly or partly to a parenting order, being a
subpoena issued to a party to the proceedings; or
(e) a parenting plan registered in a court under section 63E; or
(f) a bond entered into:
(i) under a parenting order; or
(ii) under paragraph 70NJ(3)(b); or
(iii) for the purposes of subsection 70NO(5);
and includes an order, injunction, plan or bond that:
(g) is an order under this Act affecting children made by another court
because of paragraph (a), (b), (e) or (f); and
(h) has been registered in the first-mentioned court.
participate in a post-separation parenting program
means:
(a) attend before the provider of the program so that the provider can
make an initial assessment as to the suitability of the person attending to take
part in lectures, discussions or other activities included in the program;
and
(b) if the person attending is assessed to be suitable—take part in
the lectures, discussions or other activities in respect of which the person is
assessed to be suitable.
post-separation parenting program means a program
that:
(a) is designed to help in the resolution of conflicts about parenting;
and
(b) is included in a list of programs compiled by the Attorney-General;
and
(c) involves:
(i) the initial assessment by the provider of the program of the
suitability of persons who are ordered to participate in the program to take
part in lectures, discussions or other activities included in the program;
and
(ii) the taking part in such lectures, discussions or other activities by
persons so assessed to be suitable.
reasonable excuse for contravening an order includes the
meanings given by section 70NE.
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.
For the purposes of this Division:
(a) a residence order is taken to include a requirement that people act in
accordance with section 65M in relation to the order; and
(b) a contact order is taken to include a requirement that people act in
accordance with section 65N in relation to the order; and
(c) a specific issues 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.
(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), (3) and (4).
(2) A person (the respondent) is taken to have had a
reasonable excuse for contravening a residence order in a way that resulted in a
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).
(3) A person (the respondent) is taken to have had a
reasonable excuse for contravening a contact order in a way that resulted in a
person and a child being deprived of contact they were supposed to have had
under the order if:
(a) the respondent believed on reasonable grounds that the deprivation of
contact was necessary to protect the health or safety of a person (including the
respondent or the child); and
(b) the deprivation of contact was not longer than was necessary to
protect the health or safety of the person referred to in paragraph
(a).
(4) A person (the respondent) is taken to have had a
reasonable excuse for contravening a specific issues order 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).
This Subdivision applies if:
(a) an order under this Act affecting children 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, without reasonable excuse,
contravened the order;
and, in the case of an order for the maintenance of a child, applies
irrespective of the period since the contravention occurred.
(1) The court may do either or both of the following:
(a) make an order that the person is to participate in a specified
post-separation parenting program being a program that is available within a
reasonable distance from the person’s place of residence or
work;
(b) make a further parenting order that compensates for contact forgone as
a result of the contravention concerned.
(2) A person is not to be ordered to participate in a post-separation
parenting program unless the program is available within a reasonable distance
from the person’s place of residence or work.
(3) If the court makes an order that a person is to participate in a
specified post-separation parenting program, the court must cause the provider
of the program to be notified, in accordance with the applicable Rules of Court,
of the making of the order.
(4) The Attorney-General:
(a) is to compile, for each calendar year, a list of post-separation
parenting programs; and
(b) is to publish the list in such manner as he or she determines;
and
(c) if he or she amends the list during the calendar year for which it is
compiled—is to publish a revised list in such manner as he or she
determines.
(1) If the provider of a post-separation parenting program makes an
initial assessment that a person is unsuitable to take part in a post-separation
parenting program, the provider must inform the court, in accordance with the
applicable Rules of Court, that the person has been so assessed.
(2) The provider of a post-separation parenting program to whom a person
is referred must inform the court, in accordance with the applicable Rules of
Court, if:
(a) the person fails to attend or participate in any one or more of the
lectures, discussions or other activities included in the program; or
(b) the provider considers that the person is unsuitable to take any
further part in the program.
If it appears to the court that a person who has been ordered to
participate in a post-separation parenting program has not participated, or is
not participating or fully participating in the program, the court may, by
order, give further directions to the person with respect to the person’s
participation in the program.
(1) If a court having jurisdiction under this Act is satisfied:
(a) that a person in respect of whom an order has been made under
paragraph 70NG(1)(a) to participate in a post-separation parenting
program:
(i) has participated in the program; or
(ii) has refused or failed to participate, or to participate fully, in the
program; or
(iii) is considered by the provider of the program to be unsuitable to
take any further part in the program;
and the person has afterwards, without reasonable excuse, contravened an
order under this Act affecting children; or
(b) a person in respect of whom an order has been made under paragraph
70NG(1)(b) has afterwards, without reasonable excuse, contravened an order under
this Act affecting children;
and the person does not prove on the balance of probabilities that he or
she had a reasonable excuse for contravening the order, the court must, subject
to subsections (5) and (6), make an order for the imposing, in respect of the
person, of one or more of the sanctions that are available to be imposed under
subsection (3), being a sanction or sanctions that the court considers to be the
most appropriate in the circumstances.
(2) A court having jurisdiction under this Act may in exceptional
circumstances, subject to subsections (5) and (6), make an order for the
imposing, in respect of a person who has contravened an order under this Act
affecting children, of one or more of the sanctions that are available to be
imposed under subsection (3), being a sanction or sanctions that the court
considers to be the most appropriate in the circumstances.
For the purposes of this subsection, exceptional
circumstances include the following circumstances:
(a) a post-separation parenting program is not available to the person
within a reasonable distance from the person’s place of residence or place
of work;
(b) because of the behaviour of the person it would not be appropriate, in
the court’s opinion, for the person to participate in a post-separation
parenting program;
(c) it would not be appropriate, in the court’s opinion, for the
court to make an order under paragraph 70NG(1)(b).
(3) The sanctions that are available to be imposed by the court
are:
(a) if the court is empowered under section 70NK 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 70NM; or
(c) if the person has contravened a parenting order—subject to
subsection (5), to make an order varying the order so contravened; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (6), to impose a sentence of imprisonment on the
person in accordance with section 70NO.
(4) If a court varies or discharges under section 70NM a community service
order made under paragraph (3)(a), the court may give any directions as to the
effect of the variation or discharge that the court considers
appropriate.
(5) When making an order under paragraph (3)(c) varying a parenting order,
the court, in addition to regarding, under section 65E, 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 parenting order did so after having
participated, or refused or failed to participate or participate fully, in a
post-separation parenting program;
(b) that the person who contravened the parenting order was a person to
whom a post-separation parenting program was not available within a reasonable
distance from the person’s place of residence or place of work;
(c) because of the behaviour of the person who contravened the parenting
order, it was not appropriate, in the court’s opinion, for the person to
participate in a post-separation parenting program;
(d) the parenting order was a compensatory parenting order made under
paragraph 70NG(1)(b) after the person had contravened a previous order under
this Act affecting children.
(6) The court must not impose a sentence of imprisonment on the person
under paragraph (3)(e) in respect of a contravention of a child maintenance
order unless the court is satisfied that the contravention was wilful or
fraudulent.
(7) An order under subsection (1) or (2) may be expressed to take effect
immediately, at the end of a specified period or on the occurrence of a
specified event.
(8) When a court makes an order under subsection (1) or (2), the court may
make any other orders that the court considers necessary to ensure compliance
with the order that was contravened.
(1) Subject to this section, if:
(a) 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; and
(b) an arrangement under section 70NQ in respect of the State or Territory
makes provision for and in relation to the carrying out of a community service
order;
a court exercising jurisdiction in the State or Territory may, under
paragraph 70NJ(3)(a) make a community service order.
(2) A community service order made under paragraph 70NJ(3)(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) If a court exercising jurisdiction under section 70NJ in a particular
State or Territory makes a community service order under paragraph 70NJ(3)(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.
(4) If a court proposes to make a community service order under paragraph
70NJ(3)(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.
Note: For applied provisions, see section
70NB.
(5) 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 70NQ is in force.
participating Territory means a Territory in relation to
which an agreement under section 70NQ is in force.
A community service order made under paragraph 70NJ(3)(a) may be varied
or discharged:
(a) if the court that made the order is the Family Court—by the
Family Court; or
(b) if the court that made the order is the Federal Magistrates
Court—by the Federal Magistrates Court; or
(c) otherwise—by the court that made the order or the Family
Court.
(1) This section provides for bonds that a court may require a person to
enter into under paragraph 70NJ(3)(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, but
are not limited to, conditions of the following kinds:
(a) a condition requiring the person to attend upon a family and child
counsellor, or a welfare officer, for counselling;
(b) 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:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with
the bond.
(1) If a court makes a community service order under paragraph 70NJ(3)(a)
in respect of a person, or an order under paragraph 70NJ(3)(b) requiring a
person to enter into a bond in accordance with section 70NM, the following
provisions have effect.
(2) If an information is laid before a magistrate, whether before or after
the end of the period for which the community service order or the bond is to
operate, or operated, alleging that the person has, without reasonable excuse,
contravened the order or bond, the magistrate may:
(a) issue a summons directing the person to appear, on a date, at a time
and at a place fixed in the summons, before the court; or
(b) if the information is laid on oath or affirmation and the magistrate
thinks that proceedings against the person by summons might not be
effective—issue a warrant for the arrest of the person.
(3) If:
(a) the person is served with a summons issued under subsection (2);
and
(b) the person fails to attend before the court as required by the
summons;
the court may, on proof of the service of the summons, issue a warrant for
the arrest of the person.
(4) If:
(a) the person is arrested under a warrant issued under subsection (2),
(3) or (6); and
(b) the court is not sitting at the time of the arrest;
the person is to be brought before a magistrate.
(5) The magistrate may:
(a) order that the person be released from custody on his or her entering
into a bond (with or without surety or security) that he or she will attend
before the court on a date, at a time and at a place specified by the
magistrate; or
(b) direct that the person be kept in custody in accordance with the
warrant.
(6) If:
(a) on entering into a bond under subsection (5), the person is released
under an order made by a magistrate under paragraph (5)(a); and
(b) the person fails to attend before the court as required by the
bond;
the court may, on proof of the entering into of the bond, issue a warrant
for the arrest of the person.
(7) If:
(a) in accordance with this section, the person is brought before the
court; and
(b) 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 70NM) is satisfied that the person has, without
reasonable excuse, failed to comply with the order or bond;
the court may take action under subsection (8).
(8) The court may:
(a) without prejudice to the continuance of the community service order or
the bond entered into in accordance with section 70NM, 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 70NM and, subject to subsection (9), 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 70NJ in respect of the
contravention.
(9) In dealing with the person as mentioned in paragraph (8)(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.
(10) A warrant issued under subsection (2), (3) or (6) in relation to the
person authorises:
(a) the arrest of the person; and
(b) the bringing of the person before the court as soon as practicable
after his or her arrest; and
(c) the detention of the person in custody until he or she is released by
order of the court, or in accordance with subsection (5).
(1) A sentence of imprisonment imposed on a person under paragraph
70NJ(3)(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
70NJ(3)(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 70NJ(3).
(3) If a court sentences a person to imprisonment under paragraph
70NJ(3)(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, when sentencing a person to imprisonment under paragraph
70NJ(3)(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 (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) 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 70NJ(3)(e) for failure to
make a payment under a child maintenance order does not affect the
person’s liability to make the payment.
(9) 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 Division.
(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 70NJ 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.
(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 orders made, and sentences
imposed, under this Subdivision.
(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; and
(b) in relation to the Australian Capital Territory—the Chief
Minister for the Australian Capital Territory; and
(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.
Nothing in this Subdivision is intended to limit the operation of section
105.
8 Section 107
Repeal the section, substitute:
(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.
(2) This section does not affect the operation of Division 13A of Part VII
or the operation of Part XIIIA.
9 After section 109
Insert:
(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 (within the meaning of
Division 13A of Part VII); or
(b) an order under this Act (within the meaning of Part XIIIA);
or
(c) the Child Support (Registration and Collection) Act
1988;
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
(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.
10 Heading to Part XIIIA
Repeal the heading, substitute:
11 Section 112AA
Insert:
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.
12 Section 112AA (definition of applied
provisions)
Omit “112AD(2)(d)”, substitute
“112AD(2)(b)”.
13 Section 112AA (definition of contact
order)
Repeal the definition.
14 Section 112AA (paragraph (a) of the
definition of court enforceable agreement)
Repeal the paragraph.
15 Section 112AA
Insert:
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.
16 Section 112AA (definition of order under
this Act)
Repeal the definition, substitute:
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 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.
17 Subsection 112AB(2)
Repeal the subsection.
18 Subsection 112AC(1)
Omit “subsections (2), (3), (4) and (5)”, substitute
“subsection (2)”.
19 Subsections 112AC(3), (4) and
(5)
Repeal the subsections.
20 Subsections 112AD(1), (1A), (2) and
(2A)
Repeal the subsections, substitute:
(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 must 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 obligation imposed on 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 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 wilful or
fraudulent.
21 Subsections 112AD(3) and
(4)
Omit “or (1A)”.
22 Subsection 112AD(5)
Repeal the subsection.
23 Subsections 112AE(1), (2) and
(3)
Omit “112AD(2)(a)”, substitute
“112AD(2)(d)”.
24 Subsections 112AE(5) and
(6)
Repeal the subsections, substitute:
(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.
25 At the end of section
112AE
Add:
(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.
26 Section 112AF
Repeal the section, substitute:
(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.
27 Subsections 112AG(1), (2), (4) and
(5)
Omit “112AD(2)(d)”, substitute
“112AD(2)(b)”.
28 Subsection 112AH(1)
Omit “112AD(2)(d)”, substitute
“112AD(2)(b)”.
Note: The heading to section 112AH is altered by omitting
“112AD(2)(d)” and substituting
“112AD(2)(b)”.
29 Subsections 112AH(5) and
(6)
Omit “recognizance” (wherever occurring), substitute
“bond”.
30 Subsection 112AM(5)
Repeal the subsection.
31 Saving
Despite the amendments made by items 10 to 30, Divisions 1 and 2 of Part
XIIIA of the Family Law Act 1975 as in force immediately before the
commencement of this Schedule continue to apply, as if those amendments had not
been made, in relation to any order under this Act (within the
meaning of section 112AA of that Act as so in force) that was in force
immediately before that commencement.
32 Heading to Division 3 of Part
XIIIA
Repeal the heading, substitute:
33 Subsection 112AP(1)
Omit “This section”, substitute “Subject to subsection
(1A), this section”.
34 After subsection
112AP(1)
Insert:
(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.
35 At the end of section
112AP
Add:
(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 within the meaning of Division 13A of Part VII or an order under this
Act within the meaning of Part XIIIA.
36 Paragraph 123(1)(p)
Repeal the paragraph.
37 Paragraph 123(1)(u)
Omit “$5,000”, substitute “50 penalty
units”.
1 Subsection 4(1)
Insert:
financial agreement means:
(a) an agreement that is a financial agreement under section 90B, 90C or
90D; or
(b) if such an agreement is varied—the agreement as
varied;
but does not include an ante-nuptial or post-nuptial settlement to which
section 85A applies.
2 Subsection 4(1) (after paragraph (ea) of the
definition of matrimonial cause)
Insert:
(eaa) without limiting any of the preceding paragraphs, proceedings
between the parties to a marriage with respect to a financial agreement made by
them; or
3 Subsection 4(1) (at the end of paragraphs (a),
(b), (c), (ca), (d), (e) and (ea) of the definition of matrimonial
cause)
Add “or”.
4 After section 71
Insert in Part VIII:
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.
5 At the end of subsection
75(2)
Add:
; and (p) the terms of any financial agreement that is binding on the
parties.
6 Paragraph 79A(1)(a)
After “suppression of evidence”, insert “(including
failure to disclose relevant information)”.
7 Before section 86
Insert:
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.
8 After subsection 86(1)
Insert:
(1A) A maintenance agreement made after the commencement of this
subsection cannot be registered.
9 After subsection 87(1)
Insert:
(1A) Subsection (1) does not apply to a maintenance agreement made after
the commencement of this subsection.
10 After Part VIII
Insert:
In this Part:
dealt with includes the meaning given by subsection
90E(2).
marriage includes a void 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
(b) the agreement is expressed to be made under this section;
the agreement is a financial agreement.
(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 owned by either or both of them at the time when
the agreement is made, or acquired by either or both of them at a later time and
before the dissolution of the marriage, is to be dealt with;
(b) the maintenance of either of them:
(i) during the marriage; or
(ii) after the dissolution of the marriage; or
(iii) both during, and after the dissolution of, the marriage.
(3) A financial agreement made as mentioned in subsection (1) may contain
matters other than those mentioned in subsection (2).
(4) A financial agreement made as mentioned in subsection (1) may vary or
terminate a previous financial agreement made as mentioned in that subsection
between the same parties.
(1) If:
(a) the parties to a marriage make a written agreement with respect to any
of the matters mentioned in subsection (2); and
(b) the agreement is expressed to be made under this section;
the agreement is a financial agreement.
(2) The matters referred to in paragraph (1)(a) are the
following:
(a) how, in the event of, or because of, the breakdown of the marriage,
all or any of the property or financial resources owned by either or both of
them at the time when the agreement is made, or acquired by either or both of
them after that time and during the marriage, is to be dealt with;
(b) the maintenance of either of them:
(i) during the marriage; or
(ii) after the dissolution of the marriage; or
(iii) both during, and after the dissolution of, the marriage.
(3) A financial agreement made as mentioned in subsection (1) may contain
matters other than those mentioned in subsection (2).
(4) A financial agreement made as mentioned in subsection (1) may vary or
terminate a previous financial agreement made as mentioned in that subsection,
or a financial agreement made as mentioned in subsection 90B(1), between the
same parties.
(1) If:
(a) after a decree nisi dissolving a marriage is made, the parties to the
former marriage make a written agreement with respect to any of the matters
mentioned in subsection (2); and
(b) the agreement is expressed to be made under this section;
the agreement is a financial agreement.
(2) The matters referred to in paragraph (1)(a) are the
following:
(a) how all or any of the property or financial resources owned by either
or both of them at the time when the agreement is made is to be dealt
with;
(b) the maintenance of either of them.
(3) A financial agreement made as mentioned in subsection (1) may contain
matters other than those mentioned in subsection (2).
(4) A financial agreement made as mentioned in subsection (1) may vary or
terminate a previous financial agreement made as mentioned in that subsection,
or a financial agreement made as mentioned in subsection 90B(1) or 90C(1),
between the same parties.
A provision of a financial agreement that relates to the maintenance of a
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.
(1) No provision of a financial agreement excludes or limits the power of
a court having jurisdiction under this Act to make an order in relation to the
maintenance of a party to a marriage if the court is satisfied that, when the
agreement was made, 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.
(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 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.
(1) A financial agreement is binding on the parties to the agreement if,
and only if:
(a) the agreement is signed by both parties; and
(b) the agreement contains, in relation to each party to the agreement, a
statement to the effect that the party to whom the statement relates has been
provided, as certified in an annexure to the agreement, with either or both of
the following, as the case may be:
(i) independent legal advice from a legal practitioner as to the legal
effect of the agreement;
(ii) independent financial advice from a prescribed financial adviser as
to the financial effect of the agreement; and
(c) the annexure to the agreement contains a certificate or certificates
signed by the persons providing the independent legal or financial 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 parties and a copy is given to the other.
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.
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.
(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 both parties to the agreement;
and
(b) the agreement contains, in relation to each party to the agreement, a
statement to the effect that the party to whom the statement relates has been
provided, as certified in an annexure to the agreement, with either or both of
the following, as the case may be:
(i) independent legal advice as to the legal effect of the
agreement;
(ii) independent financial advice as to the financial effect of the
agreement; and
(c) the annexure to the agreement contains a certificate or certificates
signed by the persons providing the independent legal or financial 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 parties and a copy is given to the other.
Note: For the manner in which the contents of a financial
agreement may be proved, see section 48 of the Evidence Act
1995.
(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; 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) in the circumstances that have arisen since the making of the
agreement, being circumstances of an exceptional nature relating to the care,
welfare and development of a child of the marriage, 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.
(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) the person has a residence order in relation to the child;
or
(c) the person has a specific issues order in relation to the child under
which the person is responsible for the child’s long-term or day-to-day
care, welfare and development.
A financial agreement, a termination agreement, or a deed or other
instrument executed by a person for the purposes of, or in accordance with, an
order made under this Part, is 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.
Child
Support (Assessment) Act 1989
1 At the end of
subsection 84(7)
Add:
; or (c) a financial agreement made as mentioned in subsection 90C(1) or
90D(1) of that Act.
2 Paragraph 95(3)(b)
Omit “Part XIII (Enforcement of decrees), and Part XIIIA (Sanctions
for failure to comply with orders and contempt of court)”, substitute
“Division 13A of Part VII (Enforcement of orders affecting children), Part
XIII (Enforcement of decrees), and Part XIIIB (Contempt of
court)”.
3 Subsection 100(2)
Omit “Part XIII (Enforcement of decrees), and Part XIIIA (Sanctions
for failure to comply with orders and contempt of court)”, substitute
“Division 13A of Part VII (Enforcement of orders affecting children), Part
XIII (Enforcement of decrees), and Part XIIIB (Contempt of
court)”.
4 After subsection 102(3)
Insert:
(3A) A Full Court of the Family Court, or a Judge of the Appeal Division
of the Family Court or other Judge if there is no Judge of the Appeal Division
available, may:
(a) join or remove a party to an appeal to the Full Court; or
(b) make an order by consent disposing of an appeal to the Full Court
(including an order for costs); or
(c) make orders about the conduct of an appeal to the Full Court,
including orders about the use of written submissions and limiting the time for
oral argument.
(3B) No appeal lies under this section from an order or decision made
under subsection (3A).
Child
Support (Registration and Collection) Act 1988
Insert:
(2A) A Full Court of the Family Court, or a Judge of the Appeal Division
of the Family Court or other Judge if there is no Judge of the Appeal Division
available, may:
(a) join or remove a party to an appeal to the Full Court; or
(b) make an order by consent disposing of an appeal to the Full Court
(including an order for costs); or
(c) make orders about the conduct of an appeal to the Full Court,
including orders about the use of written submissions and limiting the time for
oral argument.
(2B) No appeal lies under this section from an order or decision made
under subsection (2A).
6 Subsection 4(1)
(definition of approved
arbitrator)
Repeal the definition.
Insert:
arbitrator means a person who meets the prescribed
requirements for an arbitrator.
8 Subsection 4(1)
(definition of family and child
mediation)
After “mediation”, insert “, conducted in accordance with
the regulations,”.
9 Subsection 4(1)
(paragraph (a) of the definition of
family and child
mediator)
Repeal the paragraph, substitute:
(a) a person employed or engaged by the Family Court or a Family Court of
a State to provide family and child mediation services; or
10 Subsection 4(1)
(definition of private
arbitration)
Omit “by an arbitrator specified by the regulations for the purposes
of this definition,”.
Omit “approved”.
Omit “approved”.
Repeal the subsection, substitute:
(2) However, a court may only make an order under subsection (1) with the
consent of all the parties to the proceedings.
Omit “approved”.
Insert:
(1) At any time before making an award in section 19D arbitration or
private arbitration, the arbitrator may refer for determination by a single
Judge of the Family Court, or of a Family Court of a State, a question of law
arising in relation to the arbitration.
(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 has either:
(a) determined the question of law; or
(b) remitted the matter to the arbitrator having found that no question of
law arises.
(1) At any time before making an award in section 19D arbitration or
private arbitration, the arbitrator may refer for determination by the Federal
Magistrates Court a question of law arising in relation to the
arbitration.
(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
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.
Omit all the words after “in”, substitute “section 19D
arbitration or private arbitration may apply to a single Judge of the Family
Court, or of a Family Court of a State, for review of the award on questions of
law”.
Note: The heading to section 19F is altered by omitting
“made in private arbitration” and substituting “by a
Family Court”.
17 At the end of
subsection 19F(1)
Add:
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)).
Omit “court”, substitute “Judge”.
Omit “it”, substitute “he or she”.
The amendments of section 19F of the Family Law Act 1975 made by
this Schedule apply in relation to applications for review that are made after
the commencement of this item (even if the award concerned was registered before
that time).
Insert:
(1) A party to a registered award made in section 19D arbitration or
private arbitration may apply to the Federal Magistrates Court for review of the
award on questions of law.
(2) On a review of an award under this section, the Federal Magistrates
Court may:
(a) determine all questions of law arising in relation to the arbitration;
and
(b) make such decrees as it thinks appropriate, including a decree
affirming, reversing or varying the award.
Repeal the section, substitute:
If an award made in section 19D arbitration or private arbitration, or an
agreement made as a result of such arbitration, is registered in the Family
Court or a Family Court of a State, the court may make a decree affirming,
reversing or varying the award or agreement if the court is satisfied
that:
(a) the award or agreement was obtained by fraud; 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.
If an award made in section 19D arbitration or private arbitration, or an
agreement made as a result of such arbitration, is registered in the Federal
Magistrates Court, the Federal Magistrates Court may make a decree affirming,
reversing or varying the award or agreement if it is satisfied that:
(a) the award or agreement was obtained by fraud; 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.
23 At the end of Subdivision B of Division 5 of
Part III
Add:
(1) An arbitrator conducting section 19D arbitration or private
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)).
The amendment made by item 23 applies to arbitration that begins after the
commencement of that item.
Omit “approved”.
Note: The heading to section 19L is altered by omitting
“approved”.
Omit “, an approved arbitrator, or an arbitrator who carries out a
private arbitration,”, substitute “or an
arbitrator”.
Omit “community mediators and private”, substitute
“family and child”.
Note: The heading to section 19P is altered by omitting
“community mediators and private” and substituting
“family and child”.
Omit “approved”.
Omit “6”, substitute “the prescribed
number”.
30 At the end of
subsection 26B(1)
Add “and the power to make an order setting aside a registered award
under section 19G”.
Add:
Note: Powers to make Rules of Court are also contained in
sections 37A, 109A and 123.
32 At the end of paragraphs 37A(2)(a) and
(b)
Add “or”.
33 At the end of
subsection 37A(2)
Add:
; or (e) an order setting aside a registered award under section
19G.
Add:
Note: Powers to make Rules of Court are also contained in
sections 26B, 109A and 123.
35 After paragraph
38N(1)(da)
Insert:
(db) such Directors of Mediation and other mediators as are
necessary;
After “instituted” (last occurring), insert “or with the
consent of both of the parties to the marriage”.
37 At the end of
subsection 44(3)
Add:
The court may grant such leave at any time, even if the proceedings have
already been instituted.
Insert:
(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.
Add:
(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.
40 Validation of
past transfers
To avoid doubt, a purported transfer of proceedings under subsection 45(2)
of the Family Law Act 1975 before the commencement of item 39 is taken
not to have been invalid or ineffective merely because it was done on the
court’s own initiative.
Repeal the paragraph, substitute:
(b) unless the parties consent to the court hearing and determining the
proceedings—the court must transfer the proceedings to the Family Court or
to the Supreme Court of a State or Territory.
42 Subsection 60D(1)
(paragraph (c) of the definition of
member of the Court
personnel)
Repeal the paragraph.
43 At the end of
paragraph 63E(2)(b)
Add:
; or (iii) a statement to the effect that the plan was developed
after family and child mediation and that is signed by the family and
child mediator involved.
Insert:
(2A) However, a reference in subparagraph (2)(b)(i), (ii) or (iii) to the
plan does not include a reference to any child maintenance provisions (as
defined in subsection 63C(5)) of the plan.
Insert:
(ba) a grandparent of the child; or
Insert:
(da) deals with varying the maintenance of certain children (Subdivision
EA); and
Add:
(3) This section does not apply to proceedings under regulations made for
the purposes of section 110 or 111A.
Insert:
(ba) a grandparent of the child; or
49 At the end of
subsection 66L(1)
Add:
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.
Omit “applies”, substitute “or persons (each of whom
could do that) apply”.
Insert:
(1A) With the consent of all the parties to the first order, the court may
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.
Omit “The” (first occurring), substitute “In any other
case, the”.
After “(b)”, insert “or (1A)(b)”.
54 After Subdivision
E of Division 7 of Part VII
Insert:
(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 administrative assessment of child support (within
the meaning of that Act) for the child seeking payment of child support by the
other person.
(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.
Insert:
(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.
The amendment made by item 55 applies to child maintenance orders made
after the commencement of that item.
Insert:
(ca) a grandparent of the child; or
After “Part”, insert “, or exercising jurisdiction in
proceedings arising under regulations made for the purposes of Part
XIIIAA,”.
After “Part”, insert “, or exercising jurisdiction in
proceedings arising under regulations made for the purposes of Part
XIIIAA,”.
Omit “the”, substitute “or directing a person
to”.
Omit “of” (first occurring).
Repeal the note, substitute:
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).
Insert:
(ca) a grandparent of the child; or
Add:
(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.
65 At the end of
subsection 67ZA(1)
Add:
; or (d) an arbitrator.
Note: The heading to section 67ZA is altered by omitting
“or mediator” and substituting “, mediator or
arbitrator”.
Omit all the words after “by”, substitute:
: (i) causing, or threatening to cause, bodily harm to the protected
person; or
(ii) harassing, molesting or stalking that person;
67 At the end of
subsection 68C(1)
Add:
Note: Section 122AA authorises the use of reasonable force
in making an arrest.
Insert:
(2A) However, if the proceedings arise under regulations made for the
purposes of section 111B, the court may order that the child be separately
represented only if the court considers there are exceptional circumstances that
justify doing so, and must specify those circumstances in making the
order.
Note: Section 111B is about the Convention on the Civil
Aspects of International Child Abduction.
Insert:
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.
70 Section 70F
(definition of overseas child
order)
Repeal the definition, substitute:
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 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
(iii) varies or discharges an order of the kind referred to in
subparagraph (i) or (ii), 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).
Insert:
(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.
After “jurisdiction” (wherever occurring), insert “or
convention country”.
Add:
(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.
Repeal the sections.
Note: Those sections are effectively being moved to Part
XIII (Enforcement of Decrees): see also item 77.
After the commencement of this item:
(a) anything done before that commencement under section 84 or 85 of the
Family Law Act 1975 is taken to have been done under section 106A or 106B
respectively of that Act; and
(b) a reference in an order made under that Act to section 84 or 85 of
that Act is taken to be a reference to section 106A or 106B respectively of that
Act.
76 After subsection 94(2)
Insert:
(2A) If, in dismissing an appeal, the Full Court is of the opinion that
the appeal does not raise any question of general principle, it may, in
accordance with the Rules of Court, give reasons for its decision in short
form.
Note: Powers to make Rules of Court are also contained in
sections 26B, 37A, 109A, 121 and 123.
(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 to the Full Court; or
(b) make an order by consent disposing of an appeal to the Full Court
(including an order for costs); or
(c) make orders about the conduct of an appeal to the Full Court,
including orders about the use of written submissions and limiting the time for
oral argument.
(2C) A Judge of the Appeal Division, or other Judge if there is no Judge
of the Appeal Division available, may hear and determine applications to
reinstate an appeal that, because of the Rules of Court, was taken to have been
abandoned.
(2D) 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 hear
and determine applications to stay an order of a Full Court of that
Court.
(2E) No appeal lies under this section from an order or decision made
under subsection (2B), (2C) or (2D).
Repeal the subsection.
Omit “, there are no children of the marriage who have not attained
the age of 18 years and”.
Insert:
(2A) The court must not determine proceedings for the dissolution of
marriage (whether instituted by one party, or jointly by both parties, to the
marriage) under subsection (1) or (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.
Insert:
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.
(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.
(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.
(2) The court may order that any money or real or personal property dealt
with by any such instrument or disposition 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.
(5) In this section:
disposition includes a sale and a gift.
Insert:
82 After section 110
Insert:
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.
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.
83 Saving
Any regulations made for the purposes of paragraph 89(b) of the Family
Law Act 1975 and in force immediately before the commencement of item
82 have effect as if they were made for the purposes of section 110B inserted in
that Act by that item.
After “necessary”, insert “or
convenient”.
After “necessary”, insert “or
convenient”.
After “necessary”, insert “or
convenient”.
Insert:
(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 to the child’s country of habitual residence for the purposes of
the Convention; and
(b) establishing rebuttable presumptions in favour of returning a child to
that country; and
(c) relating to a Central Authority within the meaning of the regulations
applying on behalf of another person for a contact order in relation to a child
if the outcome of the proceedings is that the child is not to be returned to
that country.
(1B) The regulations made for the purposes of this section must not allow
an objection by a child to return to the child’s country of habitual
residence for the purposes of 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.
88 Subsection 111B(4)
Repeal the subsection, substitute:
(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
who has a parenting order in relation to a child that is to any
extent:
(i) a residence order; or
(ii) a specific issues order, under which the person 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
(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
who has a contact order in relation to a child should be regarded as having a
right of access to the child.
Note: The references in paragraphs (b) and (d) to residence
orders, specific issues orders and contact orders also cover provisions of
parenting agreements registered under section 63E (see section 63F, in
particular subsection (3)).
89 After subsection 111B(5)
Insert:
(5A) Subsections (1A) and (2) to (5) do not, by implication, limit
subsection (1).
90 Subsections
111C(1) and (3)
After “necessary”, insert “or
convenient”.
Insert:
(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.
92 After section 111C
Insert:
(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.
Repeal the section.
Omit all the words after “by”, substitute:
: (i) causing, or threatening to cause, bodily harm to the person referred
to in paragraph (a); or
(ii) harassing, molesting or stalking that person;
95 At the end of
subsection 114AA(1)
Add:
Note: Section 122AA authorises the use of reasonable force
in making an arrest.
96 Subsection
114AA(7) (definition of relevant
period)
Repeal the definition, substitute:
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.
Omit “section 118”, substitute “sections 117AA and
118”.
Insert:
(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.
Insert:
(2A) If a party files a copy of an offer and, before any notice of
withdrawal is filed, the party to whom the offer is made files a notice that the
offer has been accepted, the proceedings end (so far as they concern the party
who accepted the offer) when the Court makes an order giving effect to the terms
of that offer.
100 Subsections
121(1) and (2)
Omit “or by radio broadcast or television”, substitute “,
by radio broadcast or television or by other electronic means”.
101 Paragraphs
121(3)(b) and (c)
After “televised account”, insert “or an account by other
electronic means”.
Omit “Attorney-General”, substitute “Director of Public
Prosecutions”.
103 At the end of
paragraphs 121(9)(a) to (d)
Add “or”.
Insert:
(da) the display of a notice in the premises of a court that lists
proceedings under this Act, identified by reference to the names of the parties,
that are to be dealt with by the court; or
105 After
subparagraph 121(9)(f)(i)
Insert:
(ia) to an individual who is a party to any proceedings under this Act, in
connection with the conduct of those proceedings; or
106 At the end of
subsection 121(10)
Add:
Note: Powers to make Rules of Court are also contained in
sections 26B, 37A, 109A and 123.
Repeal the subsection, substitute:
(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.
108 After section 122
Insert:
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.
Insert:
(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.
110 Paragraphs 123(1)(sa), (sd) and
(se)
Omit “approved” (wherever occurring).
111 Subparagraph
123(1)(sf)(ii)
Omit “19G”, substitute “for orders setting aside
registered awards under section 19G”.
Add:
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.
113 Paragraph 125(1)(ba)
Omit “and approved arbitrators”.
114 After paragraph
125(1)(ba)
Insert:
(bb) prescribing requirements for arbitrators; 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), (sd)
or (se); and
Repeal the paragraph, substitute:
(c) prescribing court fees to be payable in respect of proceedings under
this Act; and
Add:
(3) To the extent of any inconsistency between regulations and Rules of
Court, the regulations prevail.