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2002-2003
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
FAMILY LAW
AMENDMENT BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable
Daryl Williams AM QC MP)
TABLE OF
CONTENTS
Page
General
Outline 1
Financial Impact
Statement 3
Regulation Impact on
Business 3
Consultation
Statement 3
Notes on
Clauses 5
Schedule 1
5
Schedule 2 8
Schedule
3 12
Schedule 4 17
Schedule
5 22
Schedule 6 23
Schedule
7 27
FAMILY LAW AMENDMENT BILL
2003
GENERAL OUTLINE
In line with the Government’s ongoing reform agenda in Family Law this Bill makes a range of amendments to the Family Law Act 1975 (the Act). In particular the Bill makes a range of reforms to clarify those provisions of the Act dealing with property and financial interests.
Of particular importance are the provisions in the Bill that provide clear power for courts exercising jurisdiction under the Act to make orders binding on third parties when dealing with property settlement proceedings under the Act. The provisions make it clear that within defined limits courts will have power to make orders binding on persons such as creditors to one party to a marriage and companies to do certain things.
A number of the reforms seek to clarify and refine amendments made by the Family Law Amendment Act 2000 (the Amendment Act), which came into effect on 27 December 2000. In addition, this Bill makes a number of minor amendments to Part VII of the Act, to ensure the provisions relating to parenting plans and the parenting compliance regime operate as intended.
The Bill also makes changes in relation to the structure and operation of the Family Court of Australia. Further the Bill makes changes in Schedule 7 to support the work currently being undertaken by the Rules Revision Committee of the Family Court designed to make the processes and procedures of the Court more accessible to self represented litigants.
Removal of the requirement to register parenting plans
Parents are encouraged, by developing a parenting plan, to agree about matters concerning children, rather than seeking an order from a court. Parents can choose whether or not to register a parenting plan. The Act provides that, generally, if the court has registered the parenting plan, the ‘child welfare’ provisions in parenting plans have effect as if they were an order made by the court. Therefore, in order for a parenting plan to be enforceable it has to be registered by the court.
Advice in 2000 from the Family Law Council and the National Alternative Dispute Resolution Advisory Council found that the use of registered parenting plans to date was minimal, and concluded that registration makes parenting plans too inflexible and difficult to change. In practice, most parents who wish to have their agreement legally binding do so by having consent orders made, in preference to the registration of parenting plans. Nonetheless, the advice emphasized that parenting plans remain a practical but informal arrangement to guide parents following separation. The amendments made by Schedule 1 of the Bill remove the registration provisions for parenting plans.
Use of audio links and video links
The Bill puts beyond doubt the power of the Court to use electronic technology including video and telephonic links. The provisions mirror existing legislation in particular Division 5 of Part 6 of the Federal Magistrates Act 1999. It also provides the capacity for judges to sit in separate places but still be part of the one court in the ‘split courts’ provisions of the Bill.
Changes to the management structure of the Family Court
The Bill reflects changes requested by the Family Court to address the updated management structure of the Court. In particular there is a distinction made between the role of Registrars and Registry Managers. The changes also reflect the decision of the Court to refer to all of its Primary Dispute Resolution services as mediation. A new position of Principal Mediator is established.
Improve the parenting compliance regime
The Amendment Act introduced a three-stage regime to the Act to facilitate the better enforcement of parenting orders by courts exercising jurisdiction under the Act. Schedule 4 of this Bill amends aspects of the three stage regime. Some of the proposed amendments are designed to provide greater flexibility to courts and providers of parenting programs. Other amendments are of a technical nature.
In particular there has been significant concern expressed about the difficulties that the requirements to specify “post separation parenting programs” in orders under Stage 2 is having both for the judicial officers making the orders and the program providers having to specify programs for the list that is published under section 70NIB. This difficulty has been overcome by having the referral simply to the program provider without mentioning the particular program.
In addition the court will be given greater discretion in the orders that can be given at Stage 2. There are also provisions to allow for community service order agreements already in place with the States and Territories to apply to orders made under the three-stage regime.
Changes to the operation of financial agreements
Financial agreements were introduced by the Amendment Act. Financial agreements dealing with all or any of the parties’ property may now be made, either before or during marriage or after marriage breakdown. People are encouraged, but not required to make financial agreements.
Schedule 5 of the Bill makes a range of amendments to the provisions relating to financial agreements. In particular in order for a financial agreement to be binding, each party is required to obtain independent legal advice as to the legal effect of the agreement before concluding their agreement. Difficulties with the extent of the advice required to be given, particularly in relation to the financial aspects of the advice, have been raised by the legal profession. The Bill will amend the Act to change the certification requirements, in particular, to remove the reference to the provision of financial advice by a legal practitioner.
Allow for orders and injunctions to be binding on third parties
Schedule 6 of the Bill provides for the Family Court to be given power to bind third parties in order to give effect to property settlements. This will apply for any creditor of a party to a marriage irrespective of whether the creditor is a friend, relative or financial institution. Procedural rights will be given to third parties to ensure that the changes do not affect the underlying substantive property rights of the creditor.
Make a number of miscellaneous amendments
Schedule 7 makes a range of amendments to the Act. Some of these amendments make changes to the provisions of the Act that allow the Court to make Rules about certain matters. These changes are designed to make those provisions less proscriptive and to reduce the detail that is required to be set out in the rules. These changes are designed to support the work of the Rules Revision Committee of the Family Court. Further changes are likely to be proposed later in 2003.
In line with recommendations made by the Family Law Council in its Report on Family Law and Child Protection, September 2002, the Schedule also makes changes to provisions that deal with the admissibility of evidence of certain admissions and disclosures made in counselling sessions covered by the Act. The provisions allow for a limited exemption where there is evidence that a child has been abused or is at risk of child abuse. There are also provisions relating to the costs of child representatives and changes to make clear the courts’ authority to publish accounts of its proceedings and court lists.
FINANCIAL IMPACT STATEMENT
These measures will have little or no financial impact.
The removal of registration requirements for parenting plans may result in a small reduction in the workload of the Family Court. The provisions of Schedule 2 relating to the use of audio and video links by the Court may result in some additional expenditure on new technology that will be met from within existing resources.
REGULATION IMPACT ON BUSINESS
There will be minimal impact on business. The provisions relating to making clear the courts’ power to bind third parties may have some impact on business but that impact is not expected to be significant. The Office of Regulation Review has advised that a Regulation Impact Statement is not required.
CONSULTATION STATEMENT
The Bill has been subject to extensive consultation with a range of stakeholders over a period of about 12 months. In particular the Family Court, the Federal Magistrates Service, the Family Law Council and the Family Law Section of the Law Council of Australia have provided comments and suggestions on the drafting of the Bill. In addition representatives of Legal Aid Commissions and Community Legal Centres have been consulted on particular provisions of the Bill. The Bill has been modified to reflect many of the suggestions made by those stakeholders.
NOTES ON CLAUSES
Clause 1 – Short title
1. Clause 1 provides for the Act to be cited as the Family Law Amendment Act 2003.
Clause 2 – Commencement –
2. Clause 2 provides for the commencement of the Act. Subclause 2(1) provides that each provision in column 1 of the table will commence on the day or at the time specified in Column 2 of the table.
3. Sections 1-3 and anything in the Act not covered elsewhere in the table commence the day on which the Act receives Royal Assent.
4. Schedule 1,2,3,Schedule 4 items 1, 2AA, 2C, 3-5, 11-17, 19AA and 19A, Schedule 5 items 2 and 3, Schedule 6 and Schedule 7 items 1-19, 21-24, 26-28 and 32-34 commence the 28th day after the Act receives Royal Assent.
5. Schedule 4, items 2, 2AA, 2B, 6-9,18,19,20-22 and Schedule 5 items 1 and 4, and Schedule 7 items 20,25,25A, 29 and 31 commence immediately after the commencement of Schedule 2 of the Family Law Amendment Act 2000 (the Amendment Act). The reason for this is that these amendments give effect to the original intent of the amendments made by the Amendment Act. The effect of the actual provisions is described below.
Clause 3 – Schedule(s)
6. Clause 3 provides that each Act as specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in those Schedules.
SCHEDULE 1 – REMOVAL OF REQUIREMENT TO REGISTER PARENTING PLANS
Family Law Act 1975
7. Schedule 1 will remove the requirement for parenting plans to be registered pursuant to Part VII of the Act. The Act will continue to encourage parents to reach agreement about their parenting responsibilities. Those agreements will have no particular legal effect but will be evidence of the intentions of the parties at the time the agreements were made.
Item 1 – Section 60C (table item 4)
8. Item 1 will remove the reference, in the outline of Part VII of the Act, to parenting plans being registered in courts.
Item 2 – Section 63A
9. Item 2 will remove the reference, in the explanation of what Division 4 of Part VII does, to the Division providing for the registration of parenting plans in courts.
Item 3 – Section 63B
10. Item 3 repeals existing section 63B of the Act and replaces it with a new section that encourages parents to reach agreement about parenting arrangements for their children. The new section indicates that parents should not only have regard to the best interests of the child as the paramount consideration in agreeing about matters concerning children. Parents are encouraged to take responsibility for their parenting arrangements and for resolving parental conflict, and to use the legal system as a last resort.
11. The Note to section 63B provides that parents seeking legally enforceable arrangements require court orders. These can be obtained by consent.
Item 4 – At the end of section 63C
12. Item 4 puts into the section dealing with the meaning of parenting plans, those parenting plans already registered in the court under section 63E before the commencement of this Bill. The intention is that plans that are already registered will continue to operate as the parties intended, but no new plans will be able to be registered after these changes come into effect.
Item 5 – Section 63D
13. Item 5 substitutes the existing provision that states that a parenting plan may not be varied, but may be revoked by further agreement, with a new provision that allows a parenting plan (with the exception of those that are currently registered) to be varied or revoked by agreement in writing between the parties to the plan. Parenting plans that are already registered are dealt with in proposed section 63DB discussed below.
Item 6 – Section 63DA
14. Item 6 repeals the existing provision that outlines the explanation required by a person advising or assisting in the making of a parenting plan. The item substitutes a new provision providing that a family and child counsellor, or a family and child mediator, or a legal practitioner that helps or gives advice in the making of a parenting plan must explain the availability of programs to assist those who experience difficulties in complying with the plan.
Item 7 – After section 63DA
15. Registered parenting plans under the changes being made by this Schedule are plans that are registered with the Court prior to the coming into force of these amendments. Item 7 inserts a new section, section 63DB, that deals with the saving and variation of registered parenting plans. These plans cannot be varied but can be revoked. Revocation may be by agreement but does not have effect until the revocation is registered.
Item 8 – Section 63E
16. Item 8 repeals the existing section 63E and inserts a new section 63E that sets out the mechanism by which to register the revocation of a registered parenting plan by agreement. The court in deciding whether to register a revocation will consider information accompanying the application and what is in the best interests of the child. The application must be accompanied by a number of documents including a certificate from a legal practitioner that each party has been given independent legal advice about the effect of the revocation of the agreement.
Item 9 – Subsection 63F(1)
17. Item 9 repeals subsection 63F(1) and inserts a new provision that ensures that the section relating to child welfare provisions of registered parenting plans only applies to those registered parenting plans already existing. That is those defined by section 63C dealt with in Item 4 above.
Item 10 – Subsection 63G(1)
18. Item 10 repeals subsection 63G(1) that relates to where child maintenance provisions of registered parenting plans are not enforceable maintenance agreements. A new provision is inserted to ensure that this only applies to “a registered parenting plan” as defined by section 63C.
Item 11 – Before subsection 63H(1)
19. Item 11 provides that section 63(H) about the courts powers to set aside, discharge, suspend or revive registered parenting plans also applies to a registered parenting plan (as defined by section 63C) that contains child welfare provisions.
Item 12 – Subsection 63H(1)
20. Item 12 also ensures that section 63(H) about the courts powers to set aside, discharge, suspend or revive registered parenting plans applies only to a registered parenting plan (as defined by section 63C).
Item 13 – Section 68P (subparagraph (b)(iv) of the definition of Division 11 contact order)
21. Item 13 again ensures that the definition of registered parenting plan, once these changes take effect, is the one defined in section 63C.
Item 14 – Section 70NB (paragraph (e) of the definition of order under this Act affecting children)
22. Item 14 - Again this amendment ensures that the definition of registered parenting plan is the one defined in section 63C.
Item 15 – Paragraph 70Q(2)(a)
23. Item 15 - Again this amendment ensures that the definition of registered parenting plan is the one defined in section 63C.
SCHEDULE 2 – USE OF AUDIO LINKS, VIDEO LINKS ETC.
Part 1 – Amendments
Family Law Act 1975
24. Schedule 2 facilitates the use of video and audio technology for the taking of submissions and evidence. It is expected that it will be common for parties to live, or have their place of business, in different towns or even different States. Use of audio and video links will reduce the need for parties to travel long distances to attend directions hearings or final hearings of their cases. It will also allow for different judges of the Court to be in different places in Australia for proceedings.
25. This Division applies to the giving of testimony, appearances and making submissions by video or audio link or other appropriate means. The technical requirements for the use of video or audio links are set out in section 102F.
Item 1 – Subsection 4(1)
26. Item 1 defines audio link to mean facilities like telephones that enable audio communications between persons in different places.
Item 2 – Subsection 4(1)
27. Item 2 defines split court as provided by subsection 27(2).
Item 3 – Subsection 4(1)
28. Item 3 defines video link to mean facilities like closed circuit television that enable audio and visual communications between persons in different places.
Item 4 – Section 27
29. Item 4 replaces the existing section 27 of the Act. The new section requires that sittings of the Court must be held when they are required and that the Court can sit anywhere in Australia. Subsection 27(2) makes clear what a split court is and that such a court is taken to be sitting at the place where the Presiding Judge is. A split court is a court where two or more judges are sitting but they sit at different places in Australia.
Item 5 – Subsection 93A(2)
30. Item 5 provides that evidence on appeal may be given by use of affidavit or oral evidence or by video link or audio link or other appropriate means as provided for in the new Division 2 of Part XI, described below.
Item 6 – Before section 97
31. Item 6 inserts the heading “Division 1 – General matters concerning procedures and evidence”. This is necessary because of the creation of the new Division 2 of Part XI.
Item 7 – At the end of Part XI
32. Item 7 inserts new Division 2 in relation to the use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc. These provisions are designed to bring the Court’s powers to take evidence in these new ways into line with other Federal Courts.
Division 2 – Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.
Section 102C – Testimony
33. Section 102C allows the court or a Judge to direct that testimony may be given by video link, audio link or other appropriate means. Testimony must be given on oath or affirmation unless the court considers other forms to be appropriate. The exception is because in some countries it is not permissible for an oath or affirmation to be administered to a witness taking part in a foreign proceeding.
34. Subsection 102C(3) provides that where the testimony is not given by oath or affirmation the court may give the testimony such weight as it thinks fit.
35. Subsection 102C(4) provides that the court or a Judge may direct testimony be given by video or audio link, or other appropriate means, on its own initiative or on the application of a party to the proceedings.
36. Subsection 102C(5) provides an exception for people providing testimony in New Zealand because the Evidence and Procedures (New Zealand) Act 1994 (the New Zealand Evidence Act) provides arrangements for obtaining evidence for proceedings in each country from witnesses in the other country, including arrangements for the use of video and audio link.
Section 102D – Appearance of persons
37. Subsection 102D allows the court or a Judge to direct that a person may appear before the court by video or audio link or other appropriate means on its own initiative or on the application of a party to a proceeding. Subsection 102(3) provides that this doesn’t apply if the person appearing is in New Zealand as the New Zealand Evidence Act applies.
Section 102E – Making submissions
38. Subsection 102E allows the Court or a Judge to direct that a person make submission by video link, audio link, or other appropriate means, on its own initiative or on the application of a party to a proceeding. Subsection 102E(3) provides that this doesn’t apply if the person making a submission is in New Zealand as the New Zealand Evidence Act applies.
Section 102F - Conditions for use of links
39. Section 102F sets out the requirements for video link, audio link, and other appropriate means of communication.
40. In the case of audio link the requirement is that the courtroom and the remote location are equipped with facilities that enable all eligible persons to hear the person appearing, giving testimony or making the submissions.
41. In the case of video link the requirement is that all eligible persons are able to see and hear, the person appearing, giving testimony or making the submissions.
42. In the case of other appropriate means of communication the Judge must be satisfied that the conditions prescribed by the applicable Rules of Court are met and the Judges may impose any other conditions deemed appropriate.
43. Subsections 102F(2)&(4) also provide the conditions that may be prescribed by the applicable Rules of Court for video and audio links. These include the form of the links, the equipment required and the standard, speed and quality of the transmission.
44. Subsection 102F(6) defines eligible person to be those the court or Judge considers should be treated as such. These would be expected to include those who are giving evidence when they are giving that evidence.
45. Subsection 102F(7) defines courtroom to mean the place where the judge or court is sitting or in the case of a split court each of the courtrooms or places where the Judges are sitting.
Section 102G – Putting documents to a person
46. In general, a person cannot be questioned about a document unless the person is given a copy of the document. The process of giving a copy of the document to a person to be questioned is called putting a document to the person. Section 102G provides a mechanism for putting documents to persons attending the hearing by video link, audio link or other appropriate means including where there is a split court. It provides that a document may be put to the person by causing a copy of the document to be transmitted to the court and to the remote point where the person is located as necessary.
Section 102H – Putting documents to a split court
47. Section 102H provides a mechanism for putting documents to a split court. It provides that a document may be put to the court by causing a copy of the document to be put to the Judge and each courtroom or other place where another Judge or Judges are sitting, or where an eligible person is located as the court directs. The proposed provision also defines eligible person in the same terms as in subsection 102F(6) above.
Section 102J – Administration of oaths and affirmations
48. Section 102J provides that oaths or affirmations required when evidence is to be given by video or audio link or other appropriate means may be administered by video or audio link or if the court or Judge directs by another person at the remote location. The provision states that the administration of the oath or affirmation is to be done as far as practicable the same way that it would have been if the testimony was given in a courtroom. Subsection 102J(2) defines courtroom or other place where the court or judge is sitting in relation to a split court to be where the presiding Judge of the court sits.
Section 102K – Expenses
49. Section 102K provides for the payment of expenses incurred in the use of video or audio links or other appropriate means of communication including a split court. Generally, the person who wishes to give evidence, appear or make submission by video, audio or other appropriate means would be responsible for having all the necessary arrangements made and for meeting the costs. Subsection 102K(1) enables the court or a judge to order another person to pay those costs, including the courts expenses.
Section 102L – New Zealand proceedings
50. Section 102L provides that this division does not affect the New Zealand Evidence Act. That Act provides arrangements for obtaining evidence for proceedings in Australia or New Zealand from witnesses in the other country.
Division 3 – Split court
51. A new Division 3 is inserted after the new Division 2 to provide for split courts. Split court is defined in new subsection 27(2) and essentially means a court composed of two or more judges where those judges are sitting in different places. This is likely to become more common in appeals to the Full Court of the Court where the technology is available.
Section 102M – Determination that there is to be a split court
52. Section 102M provides that a directing judge can determine that the court is to be a split court and the form of electronic communication to be used to facilitate the proceedings.
53. Directing Judge is defined as the Chief Justice or the Presiding Judge in respect of the particular proceedings.
54. Electronic communication is defined as video link, audio link, or other appropriate means of communication.
Section 102N – Conditions for a split court
55. Section 102N provides for the conditions that must be satisfied before a directing Judge can make a direction that the proceedings should take place before a split court. These are that each of the courtrooms has facilities to allow eligible persons to communicate with other eligible persons in the other courtrooms and that the matters that will be set out in Rules of Court as provided for under new section 102F have been complied with. These include the form of the links, the equipment required and the standard, speed and quality of the transmission.
56. Subsection 102N(4) also defines communicate with to mean seeing and hearing where the communication is by video link. In relation to other technology the meaning will be spelt out in the Rules of Court.
Item 8 – After paragraph 123(1)(m)
57. Item 8 inserts a rule-making power into paragraph 123(1)(m), that enables the court to make Rules of Court for the purposes of the audio link, video link etc provisions. Any Rules of Court may provide for the conditions relating to the use of video links, audio links and other appropriate means of communication.
Part 2 – Application of amendments
Item 9 – Application of amendments
58. Item 9 provides that other than the split court amendments the amendments made by Part 1 apply in relation to all proceedings instituted in the court before, on or after commencement of this item.
59. Due to the provisions relating to the making of orders concerning the expenses incurred in providing for a split court, the split court provisions only apply to proceedings instituted after the commencement of this item.
SCHEDULE 3 – MANAGEMENT OF THE FAMILY COURT
Part 1 – Amendments
Family Law Act 1975
60. The Family Law Act contains a range of provisions that set out the major office holders within the Family Court. The Court is undergoing major restructuring and has suggested the following amendments to the Act to reflect its desired new structure.
61. In particular the positions of Principal Director of Mediation, Principal Director of Court Counselling and Director of Court Counselling are now obsolete. New positions of National Manager Mediation and Manager Mediation have now been created.
62. Many of the suggested amendments result in administrative tasks being delegated to Registry Managers rather than Registrars.
Item 1 – Subsection 4(1)
63. Item 1 defines Chief Executive Officer to be the Chief Executive Officer of the Family Court appointed under section 38C or acting as Chief Executive Officer and appointed under section 38M.
Item 2 – Subsection 4(1) (paragraph (a) of the definition of court counsellor)
64. Item 2 provides that the Principal Mediator, or a Manager Mediation, or a mediator replaces the Principal Director of Court Counselling, or a Director of Court Counselling or another as these positions are now obsolete.
Item 3 – Subsection 4(1) (definition of Registrar)
65. Item 3 defines Registrar in relation to the Family Court to mean the Principal Registrar, a Registrar or a Deputy Registrar and 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.
Item 4 – Subsection 4(1) (definition of Registry Manager)
66. Item 4 introduces the new definition of Registry Manager to apply for all provisions except Subdivision C of Division 8 of Part VII about the recovery and location of children and section 67Z in Subdivision D of Division 8 of Part VII relating to allegations of child abuse. (In these subdivisions the definition is modified to include a reference to a Principal Registrar, a Registrar or Deputy Registrar of the Family Court of Western Australia. This reflects a decision of that Court that the provision of information in relation to location and recovery of children orders and in relation to allegations of child abuse should be made to its Registrars).
67. Registry Manager is defined in relation to the Family Court as the Registry Manager of a Registry of the Court. In relation to a court other than the Family Court it means the principal officer of the court or any other appropriate officer of the Court. The Court is seeking to make clear the distinction between the administrative functions of Registry Managers and the legal and judicial functions of Registrars.
Item 5 – Paragraph 14C(3)(b)
68. Item 5 provides that the Registry Manager replaces the Principal Director of Court Counselling of the Family Court as the officer to nominate a suitable person or organisation to assist in considering possible reconciliation where the court orders this.
Item 6 – Subsection 15(2)
69. Item 6 provides that the Registry Manager replaces the Principal Director of Court Counselling of the Family Court for the purposes of the section which concerns notices seeking counselling filed by parties to a marriage. The Registry Manager will now be the person who will arrange for the parties to the marriage to be interviewed by a family and child counsellor for the purpose of assisting the parties with a view to reconciliation or the improvement of their relationship to each other or to any of their children.
Item 7 – Subsections 16(1) and (2)
70. Item 7 provides that the Registry Manager replaces the Principal Director of Court Counselling of the Family Court for the purpose of advertising about the existence and availability of the counselling and welfare facilities of the Family Court and of other courts having jurisdiction under the Act.
Item 8 – Section 20
71. Item 8 provides for a definition of Principal Registrar for the purposes of Part IV, which deals with the Family Court of Australia.
Item 9 – Paragraph 38N(1)(c)
72. Item 9 – The existing list of personnel of the Family Court other than the Chief Executive Officer is amended to replace Principle Director of Court Counselling with such Registry Managers of the Court as are necessary.
Item 10 – Paragraph 38N(1)(d)
73. Item 10 provides that in the list of personnel of the Family Court the existing reference to Directors of Court Counselling is deleted.
Item 11 – Paragraph 38N(1)(da)
74. Item 11 provides that in the list of personnel of the Family Court the new position of Principal Mediator, and such Managers Mediation replaces the Principal Director of Mediation.
Item 12 – Paragraph 38N(1)(db)
75. Item 12 provides that in the list of personnel of the Family Court the existing reference to such Directors of Mediation and other mediators as are necessary is deleted.
Item 13 – Subparagraph 44(1B)(a)(ii)
76. Item 13 provides that the Principal Mediator replaces the Principal Director of Mediation for the purpose of parties certifying that they have had assistance in considering reconciliation for the purpose of an application for the dissolution of marriage filed within the period of two years after the date of the marriage.
Item 14 – Subsection 56(1)
77. Item 14 provides that the Registry Manager replaces the Registrar for the purposes of preparation of a memorandum about the fact of and the date when a decree nisi becomes absolute. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 15 – Subsection 56(2)
78. Item 15 provides that the Registry Manager replaces the Registrar for the purposes of entitled persons obtaining on application a certificate that a decree nisi has become absolute. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 16 – Subsection 62C(2)
79. Item 16 provides that the Registry Manager replaces the Principal Director of Court Counselling for the purposes of making arrangements for parties to a proceeding, who have filed a notice requesting counselling, to be interviewed by a family and child counsellor or welfare officer to assess whether counselling is appropriate in all the circumstances.
Item 17 – Subsection 62E(2)
80. Item 17 provides that the Registry Manager replaces the Principal Director of Court Counselling for the responsibility of ensuring counselling facilities are made available.
Item 18 – Section 67H (definition of Registrar)
81. Item 18 repeals the current definition of Registrar.
Item 19 – Section 67H
82. Item 19 replaces the current definition of Registrar with a definition of Registry Manager that applies to Subdivision C of Part VII about the location and recovery of children. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars, but also reflects the different position with the Family Court of Western Australia outlined in item 4 above.
Item 20 – Paragraphs 67J(1)(a) and (b)
83. Item 20 provides that the Registry Manager replaces the Registrar for the purposes of the provision of information by persons or the Secretary of a Department or appropriate authority of a Commonwealth instrumentality, in relation to a location order for the recovery of a child. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 21 – Subsection 67P(1)
84. Item 21 provides that the Registry Manager replaces the Registrar for the provision relating to who information about location orders can be disclosed. This reflects the new role of the Registry Manager in receiving such information due to the amendment to Paragraph 67J(1)(a) and (b) above. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 22 – Paragraph 67Y(2)(a)
85. Item 22 provides that the Registry Manager replaces the Registrar as the person in the court to whom notice must be given of a child’s return where a recovery order has been issued. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 23 – Subsection 67Z(3)
86. Item 23 provides that the Registry Manager replaces the Registrar as the court official who must notify a child welfare authority where a notice alleging abuse of a child is filed. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 24– Subsection 67Z(4) (definition of Registrar)
87. Item 24 repeals the existing definition of Registrar.
Item 25 – Subsection 67Z(4)
88. Item 25 inserts a new definition of Registry Manager for the purposes of section 67Z relating to allegations of child abuse. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars, but also reflects the different position with the Family Court of Western Australia outlined in item 4 above.
Item 26 – Subparagraph 68R(4)(b)(iv)
89. Item 26 provides that where there is a Registry Manager this person replaces the Registrar as the person to whom copies of family court orders inconsistent with a family violence order should be given. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 27 – Subsection 70M(2)
90. Item 27 provides that the Registry Manager replaces the Registrar as the person in the court to whom requests should be made to send copies of documents and information to secure the enforcement of an order in an overseas jurisdiction. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Item 28 – Subsection 70M(4)
91. Item 28 provides that the Registry Manager replaces the Registrar for this provision which provides that the Registry Manager must comply with a request to send copies of documents and information to secure the enforcement of an order in an overseas jurisdiction. This amendment reflects the fact that administrative tasks are being delegated to Registry Managers rather than Registrars.
Part 2 – Regulations
Item 29 – Regulations
92. Item 29 provides that the Governor-General can make regulations dealing with matters of a transitional or saving nature that arise out of the enactment of this Schedule. These regulations may be retrospective.
SCHEDULE 4 – PARENTING COMPLIANCE REGIME
Family Law Act 1975
93. Schedule 4 amends the parenting compliance regime provisions in Division 13A of Part VII and makes other consequential amendments. The provisions reflect the experience of operating with the new provisions for the last two years. In a number of cases the amendments are designed to give the court dealing with the application for enforcement greater flexibility in what the court can order to deal with the contravention.
Item 1 – After section 65L
94. Item 1 inserts section 65LA that gives the court the power to order a person to attend a post-separation parenting program at any stage during proceedings for a parenting order. The existing provisions only allow a court to make such an order during enforcement proceedings under Division 13A of Part VII.
95. The provisions require that in deciding to make an order the court must regard the best interests of the child as being paramount. Subsection 65LA(3) contains definitions of post-separation parenting program and post-separation parenting program provider or provider that are straightforward and the same as those contained in section 70NB of the Act (as modified by this Schedule). Section 70NB provides a series of definitions for the post-separation compliance regime.
Item 2 - Paragraph 65T(1)(b)
96. Item 2 removes the incorrect reference to “section 112AD” in subparagraph 65T(1)(b), and replaces it with the correct reference to “Division 13A”. This amendment reflects the amendments introduced by the Amendment Act.
Item 3 – Section 70NB (definition of appropriate post-separation parenting program or appropriate program)
97. Item 3 removes the definition of appropriate post-separation parenting program or appropriate program. This definition is no longer necessary because of the amendments made by Item 14 and other related amendments.
Item 4 – Section 70NB (paragraph (c) of the definition of order under this Act affecting children)
98. Item 4 amends the definition of order under this Act affecting children in relation to an undertaking. The new definition relates to undertakings given to, and accepted by the court that relate to, or to the making of, a parenting order or certain types of injunctions, community service orders and bonds. The new definition ensures that only contraventions of these listed types of undertakings can be captured under Division 13A. The intention is that breaches of undertakings that relate solely to financial matters but that are made in proceedings that deal with both parenting matters and financial matters are not dealt with under the parenting compliance regime.
Item 5 – Section 70NB (paragraph (d) of the definition of order under this Act affecting children)
99. Item 5 amends the definition of order under this Act affecting children in relation to a subpoena. The new definition relates to subpoenas issued under the applicable Rules of Court that relate to, or to the making of, a parenting order or certain types of injunctions, community service orders and bonds. The new definition ensures that only contraventions of these listed types of subpoenas can be captured under Division 13A. The intention is that breaches of subpoenas that relate solely to financial matters but that occur in proceedings that deal with both parenting matters and financial matters are not dealt with under the parenting compliance regime.
Item 6 – Section 70NB (paragraph (e) of the definition of order under this Act affecting children)
100. Item 6 inserts a new paragraph in the definition of order under this Act affecting children in relation to community service orders. This allows the court to apply the provisions in Subdivision C of Division 13A to a contravention of a community service order made in relation to the breach of a parenting order.
Item 7 – Section 70NB (paragraph (b) of the definition of post-separation parenting program or program)
101. Item 7 removes from the definition of post-separation parenting program or program the reference that the program is a program that is included in a list of programs compiled by the Attorney-General. It replaces this with a reference to the program being a program that is provided by a provider. This relates to the amendments made by Item 14 and other related amendments.
Item 8 – Section 70NB
102. Item 8 inserts a definition of post-separation parenting program provider or provider to mean a provider of a program this is included in a list of providers compiled by the Attorney-General. This relates to the amendments made by Item 14 and other related amendments.
Item 9 – Section 70NB (definition of primary order)
103. Item 9 replaces the existing definition of primary order. It inserts a new definition, which provides that primary order means an order under this Act affecting children and includes such order as varied. This ensures that contraventions of orders that are slight variations of the original orders are still regarded as breaches of the original order. This was the original intention of the provision.
Item 10 – Paragraph 70NF(1)(a)
104. Item 10 is a technical amendment consequential on the amendment in Item 9.
Item 11 – Paragraph 70NF(1)(c)
105. Item 11 replaces one of the existing grounds on which a court can use its powers under Subdivision B of Division 13A with a reference to the situation where either subsection 70NF(1A) or 7NF(1B) applies. This relates to the amendment made by Item 12.
Item 12 – After subsection 70NF(1)
106. Item 12 ensures that all findings of contraventions, whether made before or after the Amendment Act came into force, can be counted as previous contraventions for the purpose of the regime. Arguably, the existing section 70NF(1) does not include a contravention of an order affecting children where a person does not prove that he or she had a reasonable excuse for so doing.
107. The new provisions simply refer to the imposing of a sanction or the taking of any action in relation to the primary order, without reference to whether or not the person was able to show they had a reasonable excuse for the breach. The provision also covers an adjournment. These amendments ensure that the original intention of the provisions is implemented.
Item 13 – Subsection 70NF(2)
108. Item 13 is a technical amendment consequential on the amendment in Item 12.
Item 14 – Subparagraphs 70NG(1)(a)(i) and (ii)
109. Item 14 removes the power of the court to order parties to attend, after assessment as to suitability of a program provider, a particular post-separation parenting program. The existing provisions of the Act require that this program be part of a list published at least annually by the Attorney-General pursuant to section 70NIB. These provisions proved to be unnecessarily restricting the flexibility of post-separation parenting program providers to tailor programs to suit individual clients.
110. This item amends subparagraphs 70NG(1)(a)(i) and (ii) so that, if making an order under paragraph 70NG(1)(a), the court may order a person to attend before a post-separation parenting program provider for an initial assessment as to the person’s suitability to attend a program. If so, that provider can then decide the most appropriate program, or a part of a program, for that person to attend. This decision takes effect as an order of the court directing the person to attend that program, or that part of that program.
Item 15 – Paragraph 70NG(1)(b)
111. Item 15 ensures that the court, in addition to having the power at Stage 2 of the parenting compliance regime to make a further parenting order that compensates for contact foregone, also has the power to make an order that compensates for residence foregone.
Item 16 – After paragraph 70NG(1)(b)
112. Item 16 extends the powers of the court at Stage 2 of the parenting compliance regime, to include that the court may make any other order varying the contravened order. This provides the court with a wider discretion in dealing with the range of possibilities that may come before it.
Item 17 – Subsection 70NG(3)
113. Item 17 is consequential on the amendment in Item 14 and other related amendments. It provides that if the court makes an order under paragraph 70NG(1)(a) that a person is to attend before a provider for assessment, the court must cause the provider to be notified of the making of the order.
Item 18 – Section 70NIA
114. Item 18 gives the court the additional power to make further orders to deal with the contravention. Under the current provisions it is not clear that the court has power to deal further with a person where, for example, they have been found unsuitable to attend a program. It does not allow the making of more punitive orders that can be made under Stage 3 of the parenting compliance regime.
Item 19 – Paragraph 70NIB(a)
115. Item 19 is consequential on the amendments in Item 14 and other related amendments. It provides that the Attorney-General is to compile and publish, for each calendar year, a list of post-separation parenting program providers.
Item 20 – Paragraph 70NJ(1)(a)
116. Item 20 is a technical amendment that is consequential on the amendment made by Item 9.
Item 21 – Paragraph 70NJ(1)(c)
117. Item 21 replaces one of the existing grounds on which a court can use its powers under Subdivision C of Division 13A with a reference to the situation where either subsection 70NJ(1A) or 7NJ(1B) applies. This relates to the amendment made by Item 22.
Item 22 – After subsection 70NJ(1)
118. Item 22 ensures that all findings of contraventions, whether made before or after the Amendment Act came into force, can be counted as previous contraventions for the purpose of the regime. Arguably, the existing section 70NJ(1) does not include a contravention of an order affecting children where a person does not prove that he or she had a reasonable excuse for so doing.
119. The new provisions simply refer to the imposing of a sanction or the taking of any action in relation to the primary order, without reference to whether or not the person was able to show they had a reasonable excuse for the breach. The provision also covers an adjournment. These amendments ensure that the original intention of the provisions is implemented.
Item 23 – After paragraph 70NJ(5)(a)
120. Item 23 inserts section 70NJ(5)(ab) so that a court, when making an order varying an order which has been contravened, is also required to take into consideration a person’s failure to attend before a post-separation parenting program provider for assessment.
Item 24 – Paragraph 70NJ(5)(b)
121. Item 24 is a technical amendment consequential on the amendment made by Item 3.
Item 25 – Subsection 70NK(1)
122. Item 25 removes the requirement in existing paragraph 70NK(1)(b) that a court exercising jurisdiction in a State or Territory may make a community service order under Subdivision C of Division 13A if an arrangement is in place under section 70NQ in respect of the State or Territory.
123. The arrangements that are in place with the States and Territories were interpreted as not extending to include proceedings affecting children because of the relocation of the provisions relating to children from Part XIIIA to Division 13A of Part VII by the Amendment Act. This amendment extends the existing arrangements made under Part XIIIA to Division 13A of Part VII.
124. This amendment, in conjunction with the amendments in Items 26 and 27, clarifies the apparent inconsistency between the operation of sections 70NK(1) and 70NQ and the operation of subsection 70NO(9). Whereas the former provisions require the entering into of further arrangements with the States and Territories, subsection 70NO(9) saves the existing arrangements made under Part XIIIA. These amendments have the effect of saving the arrangements that are in place with the States and Territories which have been made under section 112AN of Part XIIIA, and extending the operation of these arrangements to the carrying out of sentences imposed, or orders made, under Subdivision C of Division 13A.
Item 26 – Subsection 70NO(9)
125. Item 26 repeals the existing subsection 70NO(9). The provision is relocated to new section 70NQ. This amendment, in conjunction with the amendment in Item 27, gives effect to the amendment made by Item 25.
Item 27 – Section 70NQ
126. Item 27 repeals the existing section 70NQ and replaces it with what was subsection 70NO(9). This amendment, in conjunction with the amendment in Item 26, gives effect to the amendment made by Item 25.
SCHEDULE 5 – FINANCIAL AGREEMENTS
Family Law Act 1975
127. The provisions relating to binding financial agreements were inserted by the Amendment Act to allow for agreements to deal with property matters to be made by the parties either before, during or after a marriage. There has been criticism by the legal profession and others of some of the provisions of the new scheme, which has, at least in part, reduced the use of such agreements. These changes respond to those concerns and also make other more technical changes.
Item 1 – Subsection 90F(1)
128. Item 1 amends the current subsection 90F(1) to ensure that, at the time any financial agreement comes into effect, rather than at the time it was made, if a party is unable to support himself/herself without government income support, then the court may make a maintenance order, notwithstanding the agreement.
Item 2 – Subparagraphs 90G(1)(b)(ii), (iii) and (iv)
129. Item 2 removes the reference to legal practitioners being required to provide advice about the financial advantage or otherwise of a party entering into the financial agreement. It ensures that legal practitioners are not required to certify that they have provided the party with financial advice, but provides that the legal practitioner must provide legal advice about the advantages and disadvantages to the party of the making of the agreement at the time that the advice is being provided. Item 2 retains the requirement that legal practitioners must provide legal advice to their clients on the effect of the agreement on the rights of that party.
130. The amendments also remove the requirement for the legal practitioner to provide advice on whether it was prudent for the person to enter into the agreement and further whether looking to the future the terms of the agreement were fair and reasonable. It is clearly a very heavy onus on practitioners to provide advice that looks to the future and what is prudent from one persons point of view may not be prudent from another. The provision will now require the practitioner to certify about those things that they are expert. That is the actual effect of the agreement and the advantages and disadvantages of the agreement.
Item 3 – Subparagraphs 90J(2)(b)(ii), (iii) and (iv)
131. Item 3 repeats the amendments made by item 2 but this time in relation to an agreement that terminates a financial agreement.
Item 4 – Section 90L
132. Item 4 amends the current section 90L to correct an error in the original provision that mentioned orders rather than agreements. The provision is designed to ensure that financial agreements are not liable to duty under Commonwealth and State law.
SCHEDULE 6 – ORDERS AND INJUNCTIONS BINDING THIRD PARTIES
Part 1 – Amendments
Family Law Act 1975
133. Schedule 6 amends the Act to give the court power to bind third parties in order to give effect to property settlements. At present, the Court may be unable to direct a third party to act in order to give effect to property settlements.
134. The amendments will allow a court to make orders generally that direct a third party to do something in relation to the property of a party to the marriage or that alters the rights, liabilities or property interests of a third party in relation to a marriage.
135. The provisions allow the court to make an order that would, for example, have the effect of altering the terms of a contract between the parties to a marriage and a creditor (for example, a court could order that one of the spouses was no longer liable to the creditor for the debt while the other spouse was liable for the remaining debt).
136. The amendments will also operate to allow the court to order directors to register a transfer of shares or to restrain a company from taking certain action against a party to a marriage.
137. The amendments will only allow the court to make such orders in limited circumstances (for example, a court could not simply cancel the debts of the parties). Third parties must be accorded procedural fairness, which primarily means they must be notified and be given a right to be heard before any order is made against their interests.
Item 1 – After section 90
138. Item 1 inserts a new Part VIIIAA into the Act relating to orders and injunctions binding third parties.
Part VIIIA – Orders and injunctions binding third parties
Division 1 – Preliminary
Subdivision A – Scope of this Part
Section 90AA – Object of this Part
139. Section 90AA provides that the object of the Part will be to allow the court to alter third party rights when it is either making orders altering property interests in respect of the parties to a marriage under Section 79; or making an order or injunction under section 114. Section 114 allows for orders or injunctions relating to:
• personal protection of a party to the marriage;
• restraining a party from particular actions;
• for protection of the marital relationship;
• personal property of the party to the marriage; or
• the use or occupancy of the matrimonial home.
Section 90AB – Definitions
140. Section 90AB provides a definition of marriage and third parties. Marriage is taken to include void marriages. A third party is defined very broadly to include individuals including friends or relatives of the parties to the marriage, businesses, and financial institutions. Some third parties may already be a party to the proceedings.
Section 90AC – This Part overrides other laws, trust deeds, etc.
141. Section 90AC makes it clear that where there are issues of inconsistency with other instruments the Part has effect to override any other law or trust deed or other instrument of the Commonwealth or a State or Territory even where it is made after the commencement of the Part.
142. When complying with this Part a third party will not be taken to contravene any other law or instrument.
Section 90AD – Extending meaning of matrimonial cause and property
143. Section 90AD makes it clear that a debt owed by a party to a marriage is to be treated as property for the purposes of the definition of matrimonial cause in paragraph (ca) of section 4 which includes:
• proceedings between parties to a marriage with respect to the property of parties to the marriage;
• arising out of the marital relationship; and
• in relation to concurrent, pending or completed proceedings between those parties for principal relief; or in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage; being dissolution, annulment, or legal separation effected in accordance with the law or an oversees jurisdiction and recognised as valid in Australia.
144. A debt owed by a party to the marriage is to be treated as property for the purposes of injunctions in relation to the property of a party to the marriage under paragraph 114(1)(e).
Division 2 – Orders under section 79
Section 90AE – Court may make an order under section 79 binding a third party
145. Section 90AE provides that when making an order altering the property interests of the parties to a marriage the court has power to make an order binding a third party.
146. This is intended to cover a range of possible interests that a party to the marriage may have, including ownership of life insurance products that offer benefits similar to superannuation. It will also mean, for example, that lending institutions can be bound by court orders that make one of the parties liable for particular debts.
147. The range of orders is intended to be broad and includes substitution of the party liable for a debt, adjusting the proportion of a debt that each party is liable for or ordering the transfer of shares between the parties to the marriage.
148. The provision is intended to apply only to the procedural rights of the third party it is not intended to extinguish or modify the underlying substantive property rights of third parties. The order can only be made if it is reasonably necessary or appropriate to effect the division of property between the parties and the third party must be provided with procedural fairness. The order also cannot be made if it is unlikely that the result of the order would be a debt not being paid in full.
Division 3 – Orders or injunctions under section 114
Section 90AF – Court may make an order or injunction under section 114 binding a third party
149. Section 90AF provides that the court has discretion to make an order or grant an injunction binding a third party when making an order or injunction under section 114.
150. The range of orders and injunctions is broad and includes restraining a person from repossession of property, or commencing legal proceedings.
151. The provision is intended to apply only to the procedural rights of the third party it is not intended to extinguish or modify the underlying substantive property rights of third parties. The order can only be made if it is reasonably necessary or appropriate to effect the division of property between the parties and the third party must be provided with procedural fairness. The order also cannot be made if it is unlikely that the result of the order would be a debt not being paid in full.
Division 4 – Other matters
Section 90AG – Orders and injunctions binding on trustees
152. Section 90AG provides that successive trustee’s would be bound by orders or injunctions of the court under this Part.
Section 90AH – Protection for a third party
153. Section 90AH provides third parties with protection from liability for loss or damage suffered by any other person where the third party is acting in good faith in reliance on a court order or injunction under this Part.
Section 90AI – Service of documents on a third party
154. Section 90AI provides that documents under this Part should be served in accordance with applicable Rules of Court or other method of service permitted by law. Service of documents is a part of the provision of procedural fairness to third parties.
Part 2 – Application of amendments
Item 2 – Application of amendments
155. The amendments apply to all marriages including those
dissolved before commencement of Part 1 unless there is an existing order in
relation to the property of the marriage or a section 87 financial agreement
already made and such orders or agreements have not been set aside or revoked.
156. The terms commencement time, Family
Law Act, marriage, section 79 order and section 87
agreement are defined.
SCHEDULE 7 – MISCELLANEOUS AMENDMENTS
Part 1 – Amendments
Family Law Act 1975
157. Schedule 7 contains miscellaneous amendments to the Act, including a range of technical amendments.
Item 1 – Subsection 4(1)
158. Item 1 inserts a definition of child representative. That provision is designed to make it clear that a child representative means a person who represents a child in proceedings under an appointment made by a court order under subsection 68L(2).
Item 2 – Section 17
159. Item 2 removes the reference to “applicable Rules of Court”, and instead provides that the court must provide information material on certain matters to persons proposing to institute proceedings under the Act (other than under Part VII), and in appropriate cases to their spouses. This removes the requirement for the Court to have Rules of Court providing for this matter.
Item 3 – Subsection 19A(2)
160. Item 3 removes the references to “standard Rules of Court”, and instead provides that where a notice asking for the help of a mediator in settling a dispute is filed in a court, the appropriate officer at the court must make arrangements for the dispute to be mediated. This removes the requirement for the Family Court to have Rules of Court providing for this matter.
Item 4 – Subsection 19B(1)
161. Item 4 removes the requirement that subsection 19B(1) is “subject to the standard Rules of Court”, which means that this is not a matter that the Family Court will have Rules of Court about.
Item 5 – Subsection 19B(3)
162. Item 5 provides that the appropriate officer of the Family Court must make arrangements for a court mediator to mediate the dispute referred to him or her for determination by an order made under subsection 19B(1). It removes the requirement that the mediator must mediate the disputed matter “in accordance with the standard Rules of Court”. This removes the requirement for the Family Court to have Rules of Court providing for this matter.
Item 6 – Subsection 19J(2)
163. Item 6 removes the reference to “standard Rules of Court”, and instead provides that the court must provide a document setting out particulars of any mediation and arbitration facilities available in the Family Court and elsewhere to persons proposing to institute proceedings under the Act, and in appropriate cases to their spouses. This removes the requirement for the Family Court to have Rules of Court providing for this matter.
Item 7 – At the end of section 19N
164. Item 7, like items 13 and 19, provides a limited exception to the current blanket inadmissibility provisions in subsection 19N(2), relating to evidence of anything said, or any admission made, at a meeting or conference conducted by a person listed in subsection 19N(1). Item 7 allows as evidence an admission of an adult or a disclosure of a child that indicate that a child has been abused or is at risk of abuse. Such evidence will be admissible unless the court is of the opinion that there is sufficient evidence of the admission or disclosure available to the court from other sources.
165. This exception is very limited and does not apply to disclosures by an adult that indicate that a child has been abused or is at risk of abuse by another person. It also does not apply to admissions of a child that indicate that another child has been abused or is at risk of abuse by that child.
166. The definition of abuse in relation to a child that is relevant to section 19N is set out in subsection 19N(4) and is the same as contained in section 60D of the Act.
167. This amendment implements recommendation 16 of the Family Law Council’s final report on Family Law and Child Protection, September 2002.
Item 8 – Subsection 34(2)
168. Item 8 removes subsection 34(2). Given the generality of the Court’s power to make any kind of order or writ that it considers appropriate under subsection 34(1), it is not considered to be necessary to also give the Court the power to prescribe such matters under subsection 34(2). The Family Court has not prescribed any types of orders or writs under subsection 34(2).
Item 9 – Subsection 37A(3)
169. Item 9 replaces the reference to “Rules of Court” with “applicable Rules of Court”. This amendment reflects the amendments introduced by the Federal Magistrates (Consequential Amendments) Act 1999 (the Federal Magistrates Consequential Amendments Act).
Item 10 – Subsection 37A(4)
170. Item 10 replaces the reference to “Rules of Court” with “applicable Rules of Court”. This amendment reflects the amendments introduced by the Federal Magistrates Consequential Amendments Act.
Item 11 – Subsection 37A(9)
171. Item 11 replaces the reference to “Rules of Court” with “applicable Rules of Court”. This amendment reflects the amendments introduced by the Federal Magistrates Consequential Amendments Act.
Item 12 – Subsection 44(1B)
172. Item 12 removes the requirement that a certificate accompanying an application for dissolution of marriage pursuant to subsection 44(1B) must be “in the form prescribed by the applicable Rules of Court”. This removes the requirement for the courts’ Rules of Court to have a prescribed form. The information that is required to be set out in the certificate is provided for in paragraphs 44(1B)(a) and (b).
Item 13 – At the end of section 62F
173. Item 13, like items 7 and 19, provides a limited exception to the current blanket inadmissibility provisions in subsection 62F(8), relating to evidence of anything said, or any admission made, at a meeting or conference that takes place pursuant to an order under subsection 62F(2). Item 13 allows as evidence an admission of an adult or a disclosure of a child that indicate that a child has been abused or is at risk of abuse. Such evidence will be admissible unless the court is of the opinion that there is sufficient evidence of the admission or disclosure available to the court from other sources.
174. This exception is very limited and does not apply to disclosures by an adult that indicate that a child has been abused or is at risk of abuse by another person. It also does not apply to admissions of a child that indicate that another child has been abused or is at risk of abuse by that child.
175. The definition of abuse in relation to a child that is relevant to section 62F is set out in new subsection 62F(10) and is the same as contained in section 60D of the Act.
176. This amendment implements recommendation 17 of the Family Law Council’s final report on Family Law and Child Protection, September 2002.
Item 14 – Section 62H
177. Item 14 removes the reference to “applicable Rules of Court”, and instead provides that the court must provide information material on certain matters to persons proposing to institute proceedings under Part VII of the Act, and certain other people in appropriate cases. This removes the requirement for the court to have Rules of Court providing for this matter.
Item 15 – Subparagraph 66S(1)(a)(ii)
178. Item 15 removes the requirement that a child maintenance order referred to in subparagraph 66S(1)(a) (ii) must be registered in a court “under the applicable Rules of Court”, and simply provides that such an order be registered in a court. This removes the requirement for the court to have Rules of Court providing for this matter.
Item 16 – Subsections 67W(1) and (2)
179. Item 16 removes the requirement for how long recovery orders remain in force to be dealt with by “the applicable Rules of Court.” This item relocates into the Act the information contained in the Family Court’s Rules of Court dealing with the period for which a recovery order remains in force. It is appropriate that such a time-frame be specified in the Act, rather than the Rules of Court. The provision indicates that such an order remains in force for such time as the order specifies or 12 months whichever is the shorter.
Item 17 – Subsection 68J(2)
180. Item 17 removes the requirement that informing the court of a family violence order pursuant to subsection 68J(2) is required to be “subject to the applicable Rules of Court”. Instead, the subsection will simply provide that a person referred to in the subsection may inform the court of the family violence order. This means that this is not a matter that the court will have Rules of Court about.
Item 18 – Subsection 70NG(3)
181. Item 18 removes the requirement that a court that has caused a post-separation parenting program provider to be notified of an order that the court has made under subparagraph 70NG(1)(a), must provide such notification “in accordance with the applicable Rules of Court”. This removes the requirement for the court to have Rules of Court providing for this matter.
Item 19 – At the end of section 70NI
182. Item 19, like items 7 and 13, provides a limited exception to the current blanket inadmissibility provisions in section 70NI, relating to evidence of anything said, or any admission made, by a person attending before a post-separation parenting program provider, or attending a program. Item 19 allows as evidence an admission of an adult or a disclosure of a child that indicate that a child has been abused or is at risk of abuse. Such evidence will be admissible unless the court is of the opinion that there is sufficient evidence of the admission or disclosure available to the court from other sources.
183. This is a very limited exception and does not apply to disclosures by an adult that indicate that a child has been abused or is at risk of abuse by another person. It also does not apply to admissions of a child that indicate that another child has been abused or is at risk of abuse by that child.
184. The definition of abuse in relation to a child that is relevant to section 70NI is contained in subsection 70NI(3) and is the same as set out in section 60D of the Act.
185. This amendment implements recommendation 17 of the Family Law Council’s final report on Family Law and Child Protection, September 2002.
Item 20 – Subsection 70NJ(4)
186. Item 20 removes the incorrect reference to “section 70NM” in subsection 70NJ(4), inserted by the Amendment Act, and replaces it with the correct reference to “section 70NL”.
Item 21 – Subsection 94(2A)
187. Item 21 removes the requirement that if a Full Court of the Family Court gives reasons for its decision in short form pursuant to subsection 94(2A), it must give such reasons “in accordance with the standard Rules of Court”. This removes the requirement for the Family Court to have Rules of Court providing for this matter.
Item 22 – Subsection 94(2A) (note)
188. Item 22 removes the note under subsection 94(2A), as it is unnecessary.
Item 23 – Subsection 94AAA(7)
189. Item 23 removes the requirement that if the Family Court gives reasons for its decision in short form pursuant to subsection 94AAA(7), it must give such reasons “in accordance with the standard Rules of Court”. This removes the requirement for the Family Court to have Rules of Court providing for this matter.
Item 24 – Subsection 97(1A)
190. Item 24 provides that the regulations and applicable Rules of Court may also authorise Judicial Registrars and Registrars to hear proceedings in chambers.
Item 25 – After subsection 106B(4)
191. Item 25 provides that the court may exercise the general powers available to it under section 80 when applying its power under section 106B to set aside transactions that are designed to defeat claims under this Act. This power was previously available to the court prior to the relocation of section 106B from its previous position in section 85 as a consequence of the Amendment Act.
Item 26 – Subsection 107(2)
192. Item 26 provides that section 107, which provides that a person not be imprisoned for failure to comply with certain orders pursuant to subsection 107(1), in addition to not affecting the operation of Division 13A of Part VII or Part XIIIA, does not affect the operation of Part XIIIB. This reflects the relocation of the provisions dealing with contempt from Part XIIIA to Part XIIIB as a consequence of the Amendment Act.
Item 27 – Paragraph 112AD(2)(b)
193. Section 112AD gives the court broad powers to impose sanctions against persons breaching its orders covered by section 112AD. Item 27 clarifies that the imposition of a sentence under paragraph 112AD(2)(b) is by order. This gives the court the power to use the remedies, which are available to the court on the making of an order under this paragraph.
Item 28 – Paragraph 112AG(1)(a)
194. Section 112AG provides the court with the power to order community-based sentences or orders where the necessary arrangements are in place with a State or Territory. Item 28 clarifies that the imposition of a sentence under subparagraph 112AD(2)(b) is by order. This gives the court the power to use the remedies, which are available to the court on the making of an order under this subparagraph.
Item 29 – Subsection 117(1)
195. Item 29 inserts a new provision that, subject to certain provisions, in proceedings in which a child representative has been appointed, each party to the proceedings must bear, in such proportion as the court considers just, the costs of the child representative in respect of the proceedings.
196. This provision is designed to make it clear that the court is to make an order for the costs of a child representative. Subsection 117(1A) makes it clear that an order is not to be made against parties to proceedings who are in receipt of legal aid or who would suffer financial hardship if an order was made.
197. Subsection 117(1B) makes it clear that the fact the child representative receives funding from a legal aid scheme must not be taken into account by the court when making an order for costs of the child representative under this section.
Item 30 – Paragraphs 117A(1)(a) and (c)
198. Item 30 removes the incorrect reference to “section 112AD” in subparagraphs 117A(1)(a) and (c), and replaces them with the correct reference to “Division 13A”. This amendment reflects the amendments introduced by the Amendment Act.
Item 31 – Subsection 117C(2A)
199. Item 31 repeals subsection 117C(2A). The subsection may be inconsistent with subsections 79(1) and (2), and subsection 117C(3). It also may be contrary to the intention that orders require the exercise of discretion by the court.
Item 32 – Paragraph 121(9)(da)
200. Item 32 clarifies that the publication by the court of lists of proceedings (identified by reference to the names of the parties) that are to be dealt with by the court does not contravene the general restriction on publication of court proceedings in section 121. This means, for example, that the court could display a notice of such a list on the premises of the court, or publish such a list in the newspaper or on the courts’ internet sites.
Item 33 – At the end of subsection 121(9)
201. Item 33 clarifies that the publication of accounts of proceedings, which have been approved by the court, does not contravene the general restriction on publication of court proceedings in section 121. This means, for example, that the court may approve that accounts of proceedings can be published on the courts’ internet sites, on other internet sites, or in the courts’ annual reports.
Item 34 – Paragraph 123(1)(q)
202. Item 34 clarifies that in addition to the court having the power to make rules relating to the forfeiture of recognizances, it also has the power to make rules relating to the forfeiture of bonds.
Part 2 - Application of amendments
Item 35 - Application of amendments
203. This item provides that the amendments relating to admissions or disclosures in items 7,13 and 19 of this schedule only apply to such admissions or disclosures that are made after the item commences.
204. Item 29 dealing with the new provisions concerning the costs of child representatives only applies to proceedings instituted after the commencement of this item.