Family Court Amendment Act 2002 (WA)

Western Australia

Family Court Amendment Act 2002

Western Australia

Family Court Amendment Act 2002

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
3.	The Act amended	2
Part 2 — Amendments about the

consequences of failure to

comply with orders and other

obligations

4.	Section 5 amended	3
5.	Section 78A inserted	3

78A.

Explanation by person advising or

assisting in the making of a parenting

plan — FLA s. 63DA

Section 86A inserted

86A.

Measures to promote the exercise of

parental responsibility — FLA s. 65AA

7.	Section 89 amended	5
8.	Section 89A inserted	5

89A.

Parenting orders: stage 1 of parenting

compliance regime — FLA s. 65DA

9.	Section 99 amended	7
10.	Section 103 amended	7
11.	Section 104 amended	7
12.	Division 13 inserted in Part 5	7

Family Court Amendment Act 2002

Contents

Division 13 — Consequences of failure to comply

with orders, and other obligations, that affect

children

Subdivision 1 — Preliminary

205A.	Definitions — FLA s. 70NB	7
205B.	Application of Division — FLA s. 70NBA	9
205C.	Meaning of “contravened an order” —
FLA s. 70NC	9
205D.	Requirements treated as included in
certain orders — FLA s. 70ND	10
205E.	Meaning of “reasonable excuse for
contravening an order” — FLA s. 70NE	10
205F.	Standard of proof of reasonable excuse —
FLA s. 70NEA	12

Subdivision 2 — Powers of court where a person

contravenes an order under this Act affecting

children: stage 2 of parenting compliance

regime

205G.	Application of Subdivision — FLA s. 70NF	13
205H.	Powers of court — FLA s. 70NG	14
205I.	Duties of provider of program — FLA s.
70NH	16
205J.	Evidence — FLA s. 70NI	16
205K.	Court may make further orders in relation
to attendance at program — FLA s. 70NIA	17

Subdivision 3 — Court to take action in respect of

person who contravenes an order: stage 3 of

parenting compliance regime

205L.	Powers of court — FLA s. 70NJ	17
205M.	When court is empowered to impose a
community service order — FLA s. 70NK	20
205N.	Variation and discharge of community
service orders — FLA s. 70NL	22
205O.	Bonds — FLA s. 70NM	22
205P.	Procedure for enforcing community
service orders or bonds — FLA s. 70NN	23
205Q.	Sentences of imprisonment — FLA s.
70NO	26
205R.	Relationship between Subdivision and
other laws — FLA s. 70NP	28
205S.	Subdivision does not affect enforcement of
child maintenance orders etc. — FLA s.
70NR	28

13.

Section 220A inserted

220A.

Rules relating to enforcement — FLA s.

109A

14.

Section 222A inserted

Family Court Amendment Act 2002

Contents

222A.

People not to be imprisoned for failure to

comply with certain orders — FLA s. 107

15.	Heading to Part 10 replaced	32
Part 10 — Sanctions for failure to comply with

orders, and other obligations, that do not

affect children

16.

Section 223 replaced

223.

Interpretation — FLA s. 112AA

17.	Section 224 amended	33
18.	Section 225 amended	33
19.	Section 226 amended	34
20.	Section 227 amended	35
21.	Section 228 replaced	36

228.

Bonds — FLA s. 112AF

22.	Section 229 amended	37
23.	Section 230 amended	37
24.	Section 232 amended	37
25.	Saving	37
26.	Heading to Part 10 Division 3 replaced and section
233A inserted	38
Part 10A — Contempt of court

233A.

Interpretation

27.	Section 234 amended	38
28.	Section 244 amended	39
Part 3 — Amendments about de facto

relationships

29.	Section 5 amended	40
30.	Section 8 amended	40
31.	Section 33 amended	41
32.	Section 36 amended	41
33.	Section 39 amended	42
34.	Section 43 amended	42
35.	Section 43A inserted	43

43A.

Transfer of proceedings from a court of

summary jurisdiction in other cases

36.	Section 46 amended	45
37.	Section 47 amended	45
38.	Section 48 amended	46
39.	Division 3A inserted in Part 4	46

Family Court Amendment Act 2002

Contents

Division 3A — Arbitration

60A.

Court may refer proceedings to

arbitration — FLA s. 19D

60B.

Private arbitration — FLA s. 19E

60C.

Referral by arbitrator of questions of law to

a court — FLA s. 19EA and 19EB

60D.

Review of awards by a court — FLA s.

19F and 19FA

60E.

Setting aside awards — courts — FLA s.

19G and 19GA

60F.

Fees for arbitration — FLA s. 19H

Division 4 — Miscellaneous

40.	Section 61 amended	49
41.	Section 62A inserted	50

62A.

Oath or affirmation by arbitrator — FLA s.

19L

42.	Section 63 amended	50
43.	Heading to Part 4 Division 4 deleted	50
44.	Section 65 amended	50
45.	Section 124 amended	51
46.	Section 160 amended	51
47.	Part 5A inserted	51
Part 5A — De facto relationships Division 1 — Introductory

205T.	Interpretation	51
205U.	Application of Part generally	53
205V.	Right to certain civil proceedings limited	53

Division 2 — Property adjustment orders and

maintenance orders

Subdivision 1 — Introductory

205W.

This Division does not apply to certain

matters covered by binding financial

agreements or former financial

agreements — FLA s. 71A

205X.

People to whom this Part applies —

connection with WA

205Y.

Court not otherwise limited by connection

with WA referred to in section 205X

205Z.

Where court may make order under this

Division

205ZA.

Declaration of interests in property — FLA

s. 78

Subdivision 2 — Alteration of property interests, and

maintenance

205ZB.

Applications, and notifications to spouses

Family Court Amendment Act 2002

Contents

205ZC.

Right of de facto partner to

maintenance — FLA s. 72

205ZD.

Maintenance orders — FLA s. 75

205ZE.

Urgent de facto partner maintenance

cases — FLA s. 77

205ZF.

Specifications in orders of payments etc.

for de facto maintenance purposes — FLA

s. 77A

205ZG.

Alteration of property interests — FLA s.

205ZH.

Setting aside of orders altering property

interests — FLA s. 79A

205ZI.

General powers of court — FLA s. 80

205ZJ.

Duty of court to end financial relations of

de facto partners — FLA s. 81

205ZK.

Cessation of de facto maintenance

orders — FLA s. 82

205ZL.

Modification of de facto maintenance

orders —FLA s. 83

Division 3 — Financial agreements

205ZM.	Definition — FLA s. 90A	73
205ZN.	Financial agreements before beginning a
de facto relationship — FLA s. 90B	73
205ZO.	Financial agreements during de facto
relationship — FLA s. 90C	74
205ZP.	Financial agreements after de facto
relationship ends — FLA s. 90D	76
205ZQ.	Requirements with respect to provisions in
financial agreements relating to the
maintenance of a de facto partner or a
child or children — FLA s. 90E	77
205ZR.	Certain provisions in agreements — FLA
s. 90F	77
205ZS.	When financial agreements and former
financial agreements are binding —
FLA s. 90G	78
205ZT.	Effect of death of party to financial
agreement — FLA s. 90H	79
205ZU.	Termination of financial agreement and
former financial agreement — FLA s. 90J	79
205ZV.	Circumstances in which court may set
aside a financial agreement, termination
agreement or former financial
agreement — FLA s. 90K	81
205ZW.	Validity, enforceability and effect of
financial agreements, termination agreements and former financial agreements — FLA s. 90KA	82

48.

Section 235A inserted

Family Court Amendment Act 2002

Contents

235A.

Injunctions relating to de facto

relationships — FLA s. 114

49.	Section 236 amended	84
50.	Section 244 amended	85
51.	Section 245 amended	86
52.	Consequential and related amendments —
Schedule 1	87
Part 4 — Other amendments
53.	Section 44 amended	88
54.	Section 79 amended	88
55.	Section 88 amended	89
56.	Section 113 amended	89
57.	Section 118 amended	89
58.	Section 123 amended	89
59.	Section 128 amended	89
60.	Subdivision 5A inserted in Part 5 Division 7	91
Subdivision 5A — Varying the maintenance of

certain children

128A.

Varying the maintenance of certain

children — FLA s. 66SA

61.

Section 131A inserted and transitional

131A.

Children who are 18 or over: change of

circumstances — FLA s. 66VA

62.

Section 132 replaced and transitional

132.

Recovery of arrears — FLA s. 66W

63.	Section 144 amended	94
64.	Section 149 amended	94
65.	Section 152 amended	94
66.	Section 155 amended	94
67.	Section 214A inserted	95

214A.

Children swearing affidavits, being called as witnesses or being present in court — FLA s. 100B

68.

Section 219A inserted

219A.

Maintenance orders — more than

12 months old — FLA s. 106

69.	Section 236 amended	96
70.	Section 240 amended	96
71.	Section 243 amended	96
72.	Section 243A inserted	98

243A.

Use of reasonable force in arresting

persons — FLA s. 122AA

Family Court Amendment Act 2002

Contents

73.	Section 245 amended	99
74.	References to “recognizance” changed to “bond”	99
75.	Certain penalties increased	99
Schedule 1 — Consequential and

related amendments

Administration Act 1903 amended

101

15. De facto partners and distribution on

intestacy

101

Stamp Act 1921 amended

104

Western Australia

Family Court Amendment Act 2002

No. 25 of 2002

An Act to amend the Family Court Act 1997, the Administration Act

1903 and the Stamp Act 1921.

[Assented to 25 September 2002]

The Parliament of Western Australia enacts as follows:

Family Court Amendment Act 2002

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Family Court Amendment

Act 2002.

2. Commencement

(1)

This Act comes into operation on a day fixed by proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

3. The Act amended

The amendments in this Act are to the Family Court Act 1997*,

unless otherwise specified.

[* Act No. 40 of 1997.

For subsequent amendments see 2000 Index to Legislation of

Western Australia Table 1, p. 149 and Act No. 43 of 2000.]

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Amendments about the consequences of failure to comply with

Part 2

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s. 4

Part 2 — Amendments about the consequences of failure to comply with orders and other obligations

4. Section 5 amended

Section 5 is amended as follows:

(a)	by inserting in the appropriate alphabetical position the following definition —

“

“Child Support (Registration and Collection) Act”

means the Child Support (Registration and

Collection) Act 1988 of the Commonwealth as

adopted by the Child Support (Adoption of Laws)

Act 1990;

”;

(b)	in the definition of “family and child mediation” by inserting after “mediation” —

“ , conducted in accordance with the regulations, ”;

(c)	in the definition of “family and child mediator” by deleting paragraph (a) and inserting the following paragraph instead —

“

(a)	a person employed or engaged by the Family Court of Australia or the Court to provide family and child mediation services;

”.

5. Section 78A inserted

After section 78 the following section is inserted —

“

78A.

Explanation by person advising or assisting in the

making of a parenting plan — FLA s. 63DA

(1)	If a person who is a family and child counsellor, a family and child mediator or a legal practitioner gives

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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;
(b)	the consequences that may follow if either of them fails to comply with any of those obligations; and
(c)	the availability of programs to help people who experience difficulties in complying with a parenting plan.

(2)	A court may cause to be prepared, and given to persons who are making a parenting plan, a document setting out particulars of the availability of programs to help people who experience difficulties in complying with a parenting plan.

”.

6. Section 86A inserted

After section 86 the following section is inserted —

“

86A.

Measures to promote the exercise of parental

responsibility — FLA s. 65AA

(1)

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 89A).

(2)

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

Division 13 Subdivision 2.

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(3)

Further measures designed, as stage 3 of a parenting compliance regime, to ensure that, as a last resort, a parent is dealt with for deliberate disregard of an order

made by a court are contained in Division 13

Subdivision 3.

”.

7. Section 89 amended

Section 89 is amended by inserting after subsection (2) the

following subsection —

“

(3)	If the application for the parenting order was made as a result of the adjournment under section 205H(1)(c) of proceedings under Division 13 Subdivision 2 —

(a)	the court must hear and determine the application as soon as practicable; and
(b)	if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings

under that Subdivision.

”.

8. Section 89A inserted

After section 89 the following section is inserted —

“

89A.

Parenting orders: stage 1 of parenting compliance

regime — FLA s. 65DA

(1)

This section applies when a court makes a parenting

order.

(2)

It is the duty of the court to include in the order

particulars of —

(a)	the obligations that the order creates; and
(b)	the consequences that may follow if a person contravenes the order.

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(3)	If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons —

(a)	the availability of programs to help people to understand their responsibilities under parenting orders; and
(b)	the availability and use of location and recovery orders to ensure that parenting orders are complied with.

(4)

The court may cause to be prepared, and given to

persons to whom a parenting order is directed, a

document setting out particulars of the matters

mentioned in subsection (3)(a) and (b).

(5)

If a person to whom the order is directed is represented

by a legal practitioner, the court may request the

practitioner —

(a)	to assist in explaining to the person the matters mentioned in subsection (2)(a) and (b); and
(b)	to explain to the person the matters mentioned in subsection (3)(a) and (b).

(6)

If a request is made by the court to a legal practitioner

under subsection (5)(a) or (b), it is the duty of the

practitioner to comply with the request.

(7)

Failure to comply with a requirement of, or with a

request made under, this section does not affect the

validity of a parenting order.

(8)

Any matter that is required by this section to be

included in a parenting order or any explanation that is

required by this section to be given to a person is to be

expressed in language that is likely to be readily

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s. 9

understood by the person to whom the order is directed

or the explanation is given.

”.

9. Section 99 amended

Section 99(1)(c) and (d) are amended by deleting “section 226”

in both places where it occurs and inserting instead —

“ Division 13 ”.

10. Section 103 amended

Section 103(1)(b) and (c) are amended by deleting

“section 226” in both places where it occurs and inserting

instead —

“ Division 13 ”.

11. Section 104 amended

Section 104(1)(b) and (c) are amended by deleting

“section 226” in both places where it occurs and inserting

instead —

“ Division 13 ”.

12. Division 13 inserted in Part 5

After Part 5 Division 12 the following Division is inserted in

Part 5 —

“

Division 13 — Consequences of failure to comply with orders, and other obligations, that affect children

Subdivision 1 — Preliminary

205A.	Definitions — FLA s. 70NB
In this Division —
“appropriate post-separation parenting program”

or “appropriate program”, in relation to a

person, means a post-separation parenting program

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that is available within a reasonable distance from

the person’s place of residence or place of work;

“community service order” has the meaning given by

section 205M;

“contravened an order” has the meaning given by

section 205C;

“order under this Act affecting children”, in relation

to a court, means —

(a)	a parenting order;
(b)	an injunction granted by a court —

(i) under section 235; or

(ii) under section 235A in so far as the injunction is for the protection of a child;

(c)	an undertaking given to, and accepted by a court in proceedings under this Act that relate wholly or partly to, or to the making of, a parenting order;
(d)	a subpoena issued under the rules in proceedings under this Act that relate wholly or partly to a parenting order, being a subpoena issued to a party to the proceedings;
(e)	a parenting plan registered in a court under section 79;
(f)	a bond entered into —

(i) under a parenting order;

(ii) under section 205L(5)(b); or

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(iii) for the purposes of section 205Q(5),

and includes an order, injunction, plan or bond

that —

(g)

is an order under this Act affecting children paragraph (a), (b), (e) or (f); and

(h)	has been registered in the first-mentioned court;

“post-separation parenting program” or “program”

has the same meaning as in section 70NB of the

Family Law Act;

“primary order” has the meaning given by

section 205G or 205L;

“reasonable excuse for contravening an order”

includes the meanings given by section 205E.

205B.	Application of Division — FLA s. 70NBA
Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.
205C.	Meaning of “contravened an order” — FLA s. 70NC
For the purposes of this Division, a person is to be treated as having contravened an order under this Act affecting children if, and only if —

(a)	where the person is bound by the order, the person has —

(i) intentionally failed to comply with the order; or

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(ii) made no reasonable attempt to comply with the order;

(b)	in any other case, the person 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.

205D.

Requirements treated as included in certain

orders — FLA s. 70ND

For the purposes of this Division —

(a)	a residence order is to be treated as including a requirement that persons act in accordance with section 96 in relation to the order;
(b)	a contact order is to be treated as including a requirement that persons act in accordance with section 97 in relation to the order; and
(c)	a specific issues order to which section 98 applies is to be treated as including a requirement that persons act in accordance with that section in relation to the order.

205E.

Meaning of “reasonable excuse for contravening an

order” — FLA s. 70NE

(1)	The circumstances in which a person may be treated as having had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5) and (6).

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(2)	A person (the “respondent”) is to be treated as having a reasonable excuse for contravening an order under this Act affecting children if —

(a)	the respondent contravened the order because, or substantially because, the respondent did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)	the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3)

If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in subsection (2)(a), it is the duty of the

court to explain to the person, in language likely to be

readily understood by the person, the obligations

imposed on the person by the order and the

consequences that may follow if the person again

contravenes the order.

(4)

A person (the “respondent”) is to be treated as having 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).

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(5)

A person (the “respondent”) is to be treated as having 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).

(6)	A person (the “respondent”) is to be treated as having had a reasonable excuse for contravening a specific issues order by acting contrary to section 98 if —

(a)	that the action constituting the contravention was necessary to protect the health or safety of

the respondent believed on reasonable grounds 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).

205F.

Standard of proof of reasonable excuse —

FLA s. 70NEA

The standard of proof to be applied in determining, in

proceedings under this Division, whether a person who

contravened an order under this Act affecting children

had a reasonable excuse for the contravention is proof

on the balance of probabilities.

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Subdivision 2 — Powers of court where a person

contravenes an order under this Act affecting children:

stage 2 of parenting compliance regime

205G.

Application of Subdivision — FLA s. 70NF

(1)	Subject to subsection (2), this Subdivision applies if —

(a)	an order under this Act affecting children (the “primary order”) has been made, whether before or after the commencement of this Division;
(b)	a court is satisfied that a person has, whether before or after that commencement, committed a contravention (the “current contravention”) of the primary order;
(c)	the person does not prove that the person had a reasonable excuse for the current contravention; and
(d)	either of the following applies —

(i) a court has not previously determined that the person has, without reasonable excuse, contravened the primary order;

(ii) a court has previously determined that the person has, without reasonable excuse, contravened the primary order but the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision,

and, if the primary order is an order for the

maintenance of a child, this Subdivision applies

irrespective of the period since the current

contravention occurred.

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(2)

This Subdivision does not apply if, in circumstances

mentioned in subsection (1)(d)(i), the court dealing

with the current contravention is satisfied that the

person who contravened the primary order has behaved

in a way that showed a serious disregard for the

person’s obligations under the primary order.

205H.

Powers of court — FLA s. 70NG

(1)	If this Subdivision applies, a court may do any or all of the following —

(a)	make an order in respect of the person who committed the current contravention, or (subject to subsection (2)) in respect of both that person and another specified person, as follows —

(i) directing the person or each person to attend before the provider of a specified appropriate post-separation parenting program so that the provider can make an initial assessment as to the suitability of the person concerned to attend such a program;

(ii) if a person so attending before a provider is assessed by the provider to be suitable to attend such a program or a part of such a program and the provider nominates a particular appropriate program for the person to attend, directing the person to attend that program or that part of that program;

(b)	make a further parenting order that compensates for contact forgone as a result of the current contravention;
(c)	adjourn the proceedings to allow either or both of the parties to the primary order to apply for a

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further parenting order under Part 5 Division 6 that discharges, varies or suspends the primary order or revives some or all of an earlier

parenting order.

(2)	In deciding whether to adjourn the proceedings as mentioned in subsection (1)(c), the court must have regard to the following —

(a)	whether the primary order was made by consent;
(b)	whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c)	the length of the period between the making of the primary order and the occurrence of the current contravention;
(d)	any other matters that the court thinks relevant.

(3)	The court must not make an order under subsection (1)(a) directed to a person other than the person who committed the current contravention unless —

(a)

the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

(b)

the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention

and the carrying out by the person of the

person’s parental responsibilities in relation to

the child or children to whom the primary order

relates.

(4)	If the court makes an order under subsection (1)(a) that a person is to attend before the provider of a program

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for assessment, or is to attend a program, the court

must cause the provider of the program to be notified,

in accordance with the rules, of the making of the

order.

205I.

Duties of provider of program — FLA s. 70NH

(1)

The provider of a program before whom a person

attends under an order made under

section 205H(1)(a)(i) must inform the court, in

accordance with the rules, if the person is unsuitable to

attend any program.

(2)

If a person is ordered to attend a program or a part of a program, the provider of the program must inform the court, in accordance with the rules, if —

(a)	the person fails to attend the program or the part of the program; or
(b)	the provider considers that the person is unsuitable to take any further part in the program or part of the program.

205J.

Evidence — FLA s. 70NI

Evidence of anything said, or of any admission made,

by a person attending before the provider of a program

for assessment, or attending a program, is not

admissible —

(a)	in a court (whether of a kind referred to in section 8(a) or (b) or otherwise); or
(b)	in any proceedings before a person authorised by a law of the Commonwealth, or of a State or Territory, or by the consent of the parties, to hear evidence.

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205K.

Court may make further orders in relation to

attendance at program — FLA s. 70NIA

If it appears to a court that a person has not attended a

program or a part of a program that the person was

ordered to attend, the court may, by order, give further

directions to the person with respect to the person

attending the program.

Subdivision 3 — Court to take action in respect of person who contravenes an order: stage 3 of parenting compliance

regime

205L.

Powers of court — FLA s. 70NJ

(1)	Subject to subsection (2), this Subdivision applies if —

(a)	an order under this Act affecting children (the “primary order”) has been made, whether before or after the commencement of this Division;
(b)	a court is satisfied that a person has, whether before or after that commencement, committed a contravention (the “current contravention”) of the primary order;
(c)	the person does not prove that the person had a reasonable excuse for the current contravention; and
(d)	either of the following applies —

(i) a court has not previously determined that the person has, without reasonable excuse, contravened the primary order but the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of the person’s obligations under the primary order;

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(ii)

a court has previously determined that excuse, contravened the primary order.

(2)	This Subdivision does not apply if a court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision 2.
(3)	If this Subdivision applies, a court must make, in respect of the person who committed the current contravention, the order or orders available to be made
under subsection (5) that it considers to be appropriate in the circumstances.
(4)	This section applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
(5)	The orders that are available to be made by a court are —

(a)	a community service order of a kind referred to in, and in accordance with, section 205M;
(b)	an order requiring the person to enter into a bond in accordance with section 205O;
(c)	if the person has contravened a parenting order, an order varying the order so contravened, subject to subsection (7);
(d)	to fine the person —

(i) in the case of a natural person, not more than $6 600; or

(ii) in the case of a body corporate, not more than $33 000;

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(e)	subject to subsection (8), to impose a sentence of imprisonment on the person in accordance with section 205Q.

(6)

If a court varies or discharges under section 205N a

community service order made under subsection (5)(a),

the court may give any directions as to the effect of the

variation or discharge that the court considers

appropriate.

(7)

When making an order under subsection (5)(c) varying

a parenting order, the court, in addition to regarding,

under section 90, 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 refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;

(b)

there was no appropriate post-separation contravened the parenting order could attend;

(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 attend a post-separation parenting

program, or a part of such a program;

(d)	the parenting order was a compensatory parenting order made under section 205H(1)(b) after the person had contravened a previous order under this Act affecting children.

(8)	The court must not make an order imposing a sentence of imprisonment on a person under this section in

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respect of a contravention of a child maintenance order

made under this Act unless the court is satisfied that

the contravention was intentional or fraudulent.

(9)	The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of —

(a)	a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act;
(b)	a breach of a child support agreement made under that Act; or
(c)	a contravention of an order made by a court under Part 7 Division 4 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).

(10)

An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.

(11)

When a court makes an order under this section, the

court may make any other orders that the court

considers necessary to ensure compliance with the

order that was contravened.

205M.

When court is empowered to impose a community

service order — FLA s. 70NK

(1)

In this section —

“Sentencing Act” means the Sentencing Act 1995.

(2)

A community service order imposed on a person under

section 205L(5)(a) can be one of the following

kinds —

(a)	a community based order, within the meaning of the Sentencing Act, imposed in accordance with the provisions of Part 9 of that Act;

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(b)	an intensive supervision order, within the meaning of the Sentencing Act, imposed in accordance with the provisions of Part 10 of that Act.

(3)	For the purposes of this Act —

(a)	a reference in Part 9 or 10 of the Sentencing Act to an offence includes a reference to the contravention of an order;
(b)	a reference in Part 9 or 10 of the Sentencing Act to an offender is a reference to a person who contravened an order; and
(c)	a reference in Part 9 or 10 of the Sentencing Act to an offender’s criminal behaviour is a reference to the behaviour of a person who contravened an order when contravening that

order.

(4)	A person who, under the Sentencing Act —

(a)	is the chief executive officer; or
(b)	is a community corrections officer,

has, for the purposes of this Act, the same functions as

the person has under Part 9 or 10 of the Sentencing

Act, unless a court orders otherwise.

(5)	Where, under section 205L(5)(a), a court proposes to impose a community service order of a kind referred to in this section on a person, the court must, before doing so, explain or cause to be explained to the person, in language likely to be readily understood by the person —

(a)	the purpose and effect of the proposed community service order;
(b)	the requirements, obligations and conditions applicable to that person under the proposed community service order;

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(c)	the consequences that may follow if the person fails to comply with the proposed community service order or with any requirement, obligation or condition applicable to that person under the proposed community service order; and
(d)	how the proposed community service order may be discharged or varied.

(6)	If, in the application of Part 9 or 10 of the Sentencing Act for the purposes of this Act, there is any inconsistency between the provisions of the Sentencing Act and this Act, the provisions of this Act prevail.

205N.

Variation and discharge of community service

orders — FLA s. 70NL

If —

(a)	the Court makes a community service order under section 205L(5)(a) then the Court can vary or discharge the order; or
(b)	community service order under

a court other than the Court makes a can vary or discharge the order.

205O.

Bonds — FLA s. 70NM

(1)

This section provides for bonds that a court may

require a person to enter into under section 205L(5)(b).

(2)

A bond must 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.

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(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)	Where 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.

205P.

Procedure for enforcing community service orders

or bonds — FLA s. 70NN

(1)	This section applies where a court (the “court”) makes a community service order under section 205L(5)(a) in respect of a person, or an order under paragraph
205L(5)(b) requiring a person to enter into a bond in accordance with section 205O.
(2)	Sections 62(3) and 69(4) of the Sentencing Act 1995 do not apply for the purposes of this Act.
(3)	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

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reasonable excuse, contravened the order or any

requirement made in relation to the order, or the 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 and the magistrate thinks that proceedings against the person by summons might not be effective, issue a warrant for the arrest of the person.

(4) If —

(a)	the person is served with a summons issued under subsection (3); 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.

(5) If —

(a)	the person is arrested under a warrant issued under subsection (3), (4) or (7); and
(b)

the court is not sitting at the time of the arrest, the person is to be brought before a magistrate.

(6)	The magistrate may —

(a)	order that the person be released from custody upon the person entering into a bond (with or without surety or security) that the person 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.

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(7) If —

(a)	on entering into a bond under subsection (6), the person is released under an order made by a magistrate under subsection (6)(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.

(8) 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 205O) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond,

the court may take action under subsection (9).

(9)	The court may —

(a)

without prejudice to the continuance of the community service order or the bond entered into in accordance with section 205O, impose a fine not exceeding $1 100 on the person; or

(b)

entered into in accordance with section 205O

and, subject to subsection (10), deal with the

person, for the contravention in respect of

revoke the community service order or the bond 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

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(ii) the person was before the court under section 205L in respect of the contravention.

(10)	In dealing with the person as mentioned in subsection (9)(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;
(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.

(11)	A warrant issued under subsection (3), (4) or (7) in relation to the person authorises —

(a)	the arrest of the person;
(b)	the bringing of the person before the court as soon as practicable after the person is arrested; and
(c)	the detention of the person in custody until the person is released by order of the court, or in accordance with subsection (6).

205Q.

Sentences of imprisonment — FLA s. 70NO

(1)	A sentence of imprisonment imposed on a person under paragraph 205L(5)(e) must 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.

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(2)

A court must not sentence a person to imprisonment under section 205L(5)(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

section 205L(5).

(3)

If a court sentences a person to imprisonment under

section 205L(5)(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 205L(5)(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 the person 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 referred to in subsection (1)(b) may order the release of the person if it is satisfied that the person will, if 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 section 205L(5)(e) for failure to make a payment under a child maintenance order does not affect the
person’s liability to make the payment.

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205R.

Relationship between Subdivision and other laws —

FLA s. 70NP

(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 under a written law (an “offence”).

(2)	If a person is prosecuted in respect of an offence then a court in which proceedings brought under section 205L in respect of the contravention of the order must
either —

(a)	adjourn those proceedings until the prosecution has been completed; or

(b) dismiss those proceedings.

(3)

A person may be prosecuted for, and convicted of, an

offence.

(4)

Nothing in this section renders a person liable to be

punished twice in respect of the same act or omission.

205S.

Subdivision does not affect enforcement of child

maintenance orders etc. — FLA s. 70NR

Nothing in this Subdivision is intended to limit the

operation of section 220.

”.

13. Section 220A inserted

After section 220 the following section is inserted —

“

220A.

Rules relating to enforcement — FLA s. 109A

(1)	The power of the Judges, or a majority of them, under section 244 to make rules extends to making rules for

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or in relation to, or for or in relation to anything

incidental to, the enforcement by a court of —

(a)	an order under this Act affecting children (within the meaning of Part 5 Division 13);
(b)	an order under this Act (within the meaning of section 223);
(c)	the Child Support (Registration and Collection) Act; or
(d)	the Child Support (Assessment) Act.

(2)	Without limiting the generality of subsection (1), the rules may make provision for and in relation to —

(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 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 under paragraph (a)(i);

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(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 Part 5 Division 13 or under Part 10 Division 2;

(ii)

fails to pay an amount payable under a Division 13 or under Part 10 Division 2;

(iii)

fails to pay under section 123 an amount or more years of age;

(iv) fails to pay an amount payable under a registered maintenance liability under the Child Support (Registration and

Collection) Act or the Child Support

(Assessment) Act; or

(v) fails to comply with a requirement made as referred to in paragraph (a);

and

(d)	delegating to a Registrar all or any of the powers conferred on a court by rules referred to in this section.

(3)	Subject to subsection (4), the actions in respect of a person the taking of which may be provided for by rules as mentioned in subsection (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;

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(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 subsection (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;
“Registrar” means —

(a)	in relation to the Court, the Principal Registrar, a Registrar or a Deputy Registrar; and
(b)	in relation to any other court, the clerk of petty sessions of that court.

”.

14. Section 222A inserted

After section 222 the following section is inserted in Part 9 —

“

222A.

People not to be imprisoned for failure to comply

with certain orders — FLA s. 107

(1)	A person must not be imprisoned or otherwise placed in custody because of a contravention of an order made under this Act for the payment of money.

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(2)	This section does not affect the operation of Part 5 Division 13 or the operation of Part 10 Division 2.

”.

15. Heading to Part 10 replaced

The heading to Part 10 is deleted and the following heading is

inserted instead —

“

Part 10 — Sanctions for failure to comply with

orders, and other obligations, that do not

affect children

”.

16. Section 223 replaced

Section 223 is repealed and the following section is inserted

instead —

“

223. Interpretation — FLA s. 112AA

In this Part —

“maintenance order”, in relation to a court, means an

order made by a court —

(a)	under Part 5 Division 8 Subdivision 2; or
(b)	under this Act that deals with the maintenance of a person;

“order under this Act”, in relation to a court,

means —

(a)	an order (however described) made under this Act by a court (other than a parenting order);
(b)	an injunction granted by a court under section 235A except in so far as the injunction is for the protection of a child;

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(c)	an undertaking given to, and accepted by, a court in proceedings under this Act other than proceedings that relate wholly or partly to, or to the making of, a parenting order;
(d)	a subpoena issued under the rules 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;
(e)	a bond —

(i) entered into under an order of a court under this Act other than an order under Part 5 Division 13; or

(ii) entered into, for the purposes of section 227(5), on the direction of the court,

and includes an order, injunction or bond that —

(f)	is an order under this Act made by another court because of paragraph (a), (b) or (e); and
(g)	has been registered in the first-mentioned court in accordance with the regulations.

”.

17. Section 224 amended

Section 224(2) is repealed.

18. Section 225 amended

(1)

Section 225(1) is amended by deleting “this section” and

inserting instead —

“ subsection (2) ”.

(2)

Section 225(3), (4) and (5) are repealed.

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19. Section 226 amended

(1)	Section 226(1), (2), (3) and (4) are repealed and the following subsections are inserted instead —

“

(1) If —

(a)	a court is satisfied that a person has contravened an order under this Act; and
(b)	the person does not prove on the balance of probabilities that the person had a reasonable excuse for contravening the order,

then the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (3) that it

considers to be appropriate in the circumstances.

(2)

The power given to a 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.

(3)

The sanctions that are available to be imposed by a

court are —

(a)	to require the person to enter into a bond in accordance with section 228;
(b)	to impose a sentence on the person, or make an order directed to the person, in accordance with section 229;
(c)	to fine the person —

(i) in the case of a natural person, not more than $6 600; or

(ii) in the case of a body corporate, not more than $33 000;

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(d)	to impose a sentence of imprisonment on the person in accordance with section 227.

(4)

A court must not impose a sentence of imprisonment on a person under subsection (3)(d) in respect of the contravention of a maintenance order unless the court

is satisfied that the contravention was intentional or

fraudulent.

”.

(2)	Section 226(5) is amended by deleting “or (2)”.
(3)	Section 226(6) is amended by deleting “or (2)”.
(4)	Section 226(7) is repealed.

20. Section 227 amended

(1)	Section 227(1) is amended by deleting “(a)” and inserting instead —
“ (d) ”.
(2)	Section 227(2) is amended by deleting “(a)” and inserting instead —
“ (d) ”.
(3)	Section 227(3) is amended by deleting “(a)” and inserting instead —
“ (d) ”.
(4)	Section 227(5) and (6) are repealed and the following subsections are inserted instead —

“

(5)	A court, when sentencing a person to imprisonment under section 226(3)(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

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subsection (6) after the person 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.

”.

(5)	After section 227(7) the following subsection is inserted —

“

(8)	To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under section 226(3)(d) for failure to make a payment under a child maintenance order does not affect the
person’s liability to make the payment.

”.

21. Section 228 replaced

Section 228 is repealed and the following section is inserted

instead —

“

228. Bonds — FLA s. 112AF

(1)

This section provides for bonds that a court may

require a person to enter into under section 226(3)(a).

(2)

A bond must 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.

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(5)	Where 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.

”.

22. Section 229 amended

(1)	Section 229(2) is amended by deleting “(d)” and inserting instead —
“ (b) ”.
(2)	Section 229(5) is amended by deleting “(d)” and inserting instead —
“ (b) ”.

23. Section 230 amended

Section 230(1) is amended by deleting “(d)” and inserting

instead —

“ (b) ”.

24. Section 232 amended

Section 232(5) is repealed.

25. Saving

The amendments effected by this Part do not affect any act or thing done by a court under Part 10 Division 2 of the Family

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Court Act 1997 before the commencement of this Part, and any such act or thing continues to have effect according to its terms after that commencement as if those amendments had not been made.

26. Heading to Part 10 Division 3 replaced and section 233A inserted

The heading to Part 10 Division 3 is deleted and the following

heading and section are inserted —

“

Part 10A — Contempt of court

233A. Interpretation

In this Part —

“contravene an order” has the same meaning as in

section 224;

“maintenance order” has the same meaning as in

section 223;

“order under this Act” has the same meaning as in

section 223.

”.

27. Section 234 amended

(1)

Section 234(1) is amended by deleting “This” and inserting

instead —

“ Subject to subsection (1a), this ”.

(2)

After section 234(1) the following subsection is inserted —

“

(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.

”.

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(3)	After section 234(7) the following subsection is inserted —

“

(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.

”.

28. Section 244 amended

Section 244(3)(n) is deleted.

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Amendments about de facto relationships

Part 3 — Amendments about de facto relationships

29. Section 5 amended

(1)	Section 5 is amended by inserting in the appropriate alphabetical positions the following definitions —

“

(FLA s. 4(1))

“arbitrator” means a person who meets the prescribed

requirements for an arbitrator;

(FLA s. 4(1))

“Part 5A proceedings” means proceedings under

Part 5A for orders with respect to the maintenance of a de facto partner or to the property of de facto partners, but does not include any proceedings

specified in the regulations for the purposes of this

definition;

(FLA s. 4(1))

“private arbitration” means arbitration other than

arbitration carried out as a result of an order made

under section 60A;

”.

(2)

Section 5 is amended in the definition of “step-parent” by

inserting after “married to” —

“ , or in a de facto relationship with, ”.

30. Section 8 amended

Section 8 is amended by inserting —

(a)	after “5” —

“ , 5A ”; and

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 31

(b)	after “10” —

“ , 10A ”.

31. Section 33 amended

Section 33(3) is amended as follows:

(a)	after paragraph (c) by deleting “or”;
(b)	after paragraph (d) by deleting the comma and inserting —

“

; or

(e)	an order setting aside a registered award under section 60E,

”.

32. Section 36 amended

(1)	After section 36(4) the following subsection is inserted —

“

(4a)	Without limiting subsection (1), the Court has jurisdiction under Part 5A to —

(a)	make declarations and to revoke declarations that it has made;
(b)	hear and decide all other matters under that Part,

and in particular the Court has jurisdiction to hear and

decide the following —

(c)	applications for orders with respect to property;
(d)	applications for orders for the provision of maintenance.

”.

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 33

(2)	After section 36(7) the following subsection is inserted —

“

(8)	Non-federal jurisdiction conferred on the Court is exclusive of any other court except as provided under section 39 or where an appeal lies to the Supreme Court.

”.

33. Section 39 amended

Section 39 is amended by inserting after “section 37” —

“ , where applicable ”.

34. Section 43 amended

(1)	Section 43(1) is repealed and the following subsection is inserted instead —

“

(1)	This section applies —

(a) if —

(i) proceedings for a parenting order (other than a child maintenance order) or an order relating to the welfare of a child are instituted in a court of summary jurisdiction (“the court”); and

(ii)	application by which the proceedings

the respondent, in answer to the from that sought in the application;

(b) if —

(i) Part 5A proceedings are instituted in, or transferred to, a court of summary jurisdiction that is of a class or

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 35

description prescribed in the regulations

for the purposes of this paragraph

(“the court”) in relation to property of

a total value exceeding $300 000, or

such other amount, if any, as is

prescribed in the regulations; and

(ii)	application by which the proceedings

the respondent, in answer to the from that sought in the application.

”.

(2)	After section 43(4) the following subsections are inserted —

“

(4a)

A reference in subsection (1)(b) to proceedings in respect of property does not include a reference to proceedings with respect to arrears of maintenance.

(4b)

In determining the value of any property for the

purposes of subsection (1)(b), any mortgage, lien,

charge or other security over the property is to be

disregarded.

”.

35. Section 43A inserted

After section 43 the following section is inserted —

“

43A.

Transfer of proceedings from a court of summary

jurisdiction in other cases

(1)	If proceedings are instituted in a court of summary jurisdiction, other than a court prescribed for the purposes of section 43(1)(b) (“the court”), in relation to property of a total value exceeding $20 000 and the respondent, in answer to the application by which the

Family Court Amendment Act 2002

Part 3

Amendments about de facto relationships

s. 35

proceedings are instituted, seeks an order different

from that sought in the application —

(a)	the court must, before proceeding to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to

the Court; and

(b)	unless the parties consent to the court hearing and determining the proceedings, the court must transfer the proceedings to the Court.

(2)	A reference in subsection (1) to proceedings in respect of property does not include a reference to proceedings with respect to arrears of maintenance.
(3)	In determining the value of any property for the purposes of subsection (1), any mortgage, lien, charge or other security over the property is to be disregarded.
(4)	If proceedings referred to in subsection (1) are instituted in the court and the parties consent to the proceedings being heard and determined by that court, a party is not entitled, without the leave of the court, subsequently to object to the proceedings being so heard and determined but, where the court subsequently gives leave to a party to object to the proceedings being so heard and determined, the court is to transfer the proceedings to the Court.
(5)	Where proceedings referred to in subsection (1) are before it, the court may transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the court to hear and determine the proceedings.

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 36

(6)

Before transferring proceedings under this section, the court may make such orders as it considers necessary pending the disposal of the proceedings by the Court.

(7)

Where proceedings are transferred or removed to a

court in pursuance of this section, that court shall

proceed as if the proceedings had been originally

instituted in that court.

(8)

Failure by the court to comply with this section does

not invalidate any order of the court in the proceedings.

”.

36. Section 46 amended

(1)

Section 46 is amended by deleting “Before” and inserting

instead —

“ (1)

Subject to subsection (2), before ”.

(2)

At the end of section 46 the following subsection is inserted —

“

(2)	In addition to the orders referred to in subsection (1), a court of summary jurisdiction prescribed for the purposes of section 43(1)(b) may —

(a)	make such interim orders under Part 5A Division 2; or
(b)	make such interim orders, or grant such injunctions, under section 235A,

as it considers necessary.

”.

37. Section 47 amended

Section 47 is amended in the definition of “primary dispute

resolution methods” as follows:

(a)	after paragraph (b) by deleting “and”;

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 38

(b)

after paragraph (c) by deleting the full stop and inserting “

; and

(d)	arbitration services provided by arbitrators.

”.

38. Section 48 amended

Section 48(a) is amended by inserting after “mediation” —

“ , arbitration ”.

39. Division 3A inserted in Part 4

After section 60 the following Division and Division heading is

inserted —

“

Division 3A — Arbitration

60A.

Court may refer proceedings to arbitration —

FLA s. 19D

(1)

In any Part 5A proceedings the court may, subject to the rules, make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration in accordance with the rules.

(2)

However, a court may only make an order under

subsection (1) with the consent of all the parties to the

proceedings.

(3)

Where a court makes an order under subsection (1), it

may, if necessary, adjourn the proceedings and may

make such additional orders as it thinks appropriate to

facilitate the effective conduct of the arbitration.

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 39

(4)

Where a court makes an order under subsection (1), the

arbitration must be carried out by the arbitrator in

accordance with the rules.

(5)

A party to an award in an arbitration carried out as a result of an order under this section may register the award, in accordance with the regulations, in the court

that made that order and the award, when so registered,

has effect as if it were a decree made by that court.

60B.

Private arbitration — FLA s. 19E

(1)	A court may, on application by a party to the private arbitration of a dispute, make such orders as the court thinks appropriate to facilitate the effective conduct of the arbitration.
(2)	A party to an award made in a private arbitration of a dispute may register the award, in accordance with the regulations, in a court and the award, when so registered, has effect as if it were a decree made by that court.
(3)	In this section —
“dispute” means —

(a)	Part 5A proceedings;
(b)	any part of such proceedings;
(c)	any matter arising in such proceedings; or
(d)	a dispute about a matter with respect to which such proceedings could be instituted.

60C.

Referral by arbitrator of questions of law to a

court — FLA s. 19EA and 19EB

(1)	At any time before making an award in section 60A arbitration or private arbitration, the arbitrator may refer for determination by a court a question of law arising in relation to the arbitration.

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 39

(2)	The arbitrator may do so —

(a)	on the arbitrator’s 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 a 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.

60D.

Review of awards by a court — FLA s. 19F

and 19FA

(1)

A party to a registered award made in section 60A

arbitration or private arbitration may apply to a court

for review of the award on questions of law.

(2)

On a review of an award under this section, a 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.

60E.

Setting aside awards — courts — FLA s. 19G

and 19GA

If an award made in section 60A arbitration or private

arbitration, or an agreement made as a result of such

arbitration, is registered in a court, a 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 (including non-disclosure of a material matter);

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 40

(b)	the award or agreement is void, voidable or unenforceable;
(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.

60F.

Fees for arbitration — FLA s. 19H

(1)

An arbitrator conducting section 60A 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.

Division 4 — Miscellaneous

”.

40. Section 61 amended

(1)	Section 61(1)(a) is amended by inserting after “mediation” —
“ or arbitration ”.
(2)	Section 61(2) is amended by inserting after “mediation” —
“ and arbitration ”.

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 41

41. Section 62A inserted

After section 62 the following section is inserted —

“

62A.

Oath or affirmation by arbitrator — FLA s. 19L

An arbitrator must, before performing any function

under this Act of an arbitrator, make before a person

authorised to take affidavits in this State, an oath or

affirmation in accordance with the prescribed form.

”.

42. Section 63 amended

Section 63 is amended as follows:

(a)	by inserting after “mediator” in the first place where it occurs —

“ and an arbitrator ”;

(b)	by inserting after “mediator” in the second place where it occurs —

“ or arbitrator ”.

43. Heading to Part 4 Division 4 deleted

The Heading to Part 4 Division 4 is deleted.

44. Section 65 amended

After section 65(2) the following subsection is inserted —

“

(3)	An arbitrator may, in accordance with any relevant regulations, advertise at the Court’s registry the arbitration services the arbitrator provides.

”.

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 45

45. Section 124 amended

Section 124(3)(b) is amended by inserting after “to” —

“ , or de facto relationship with, ”.

46. Section 160 amended

Section 160(1) is amended as follows:

(a)	after paragraph (c) by deleting “or”;
(b)

after paragraph (d) by deleting the full stop and “

; or

(e) an arbitrator.

”.

47. Part 5A inserted

After Part 5 the following Part is inserted —

“

Part 5A — De facto relationships

Division 1 — Introductory

205T. Interpretation

In this Part —

“child”, of a de facto relationship, includes —

(a)	a biological child of both of the de facto partners born before the commencement of the de facto relationship;
(b)	a child adopted since the commencement of the de facto relationship by the de facto partners or by either of them with the consent of the other; or

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 47

(c)	a child of a de facto partner whose de facto partner is presumed or proved to be the other parent of the child under a Commonwealth, State or Territory law,

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 47

(e)	after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.

(2)	A former 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 has not been terminated and has not been set aside by a court.

(3)	A court may make such orders for the enforcement of a financial agreement, or a former financial agreement, that is binding on the parties to the agreement as it thinks necessary.

205ZT.

Effect of death of party to financial agreement —

FLA s. 90H

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.

205ZU. Termination of financial agreement and former financial agreement — FLA s. 90J

(1)	The parties to a financial agreement or a former financial agreement may terminate the agreement only by —

(a)

including a provision to that effect in another section 205ZN(4), 205ZO(4) or 205ZP(4); or

(b)	making a written agreement (a “termination agreement”) to that effect.

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 47

(2)	A termination agreement is binding on the parties if, and only if —

(a)	the agreement is signed by both parties to the agreement;
(b)

the agreement contains, in relation to each party the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters —

(i) the effect of the agreement on the rights of that party;

(ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;

(iii) whether or not, at that time, it was prudent for that party to make the agreement;

(iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the

provisions of the agreement were fair

and reasonable;

(c)	the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided;
(d)	the agreement has not been set aside by a court; and

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 47

(e)	after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.

(3)

A court may, on an application by a person who was a

party to the financial agreement, or the former financial

agreement, that has been terminated, or by any other

interested person, make such order or orders (including

an order for the transfer of property) as it considers just

and equitable for the purpose of preserving or adjusting

the rights of persons who were parties to that

agreement and any other interested persons.

205ZV. Circumstances in which court may set aside a

financial agreement, termination agreement or

former financial agreement — FLA s. 90K

(1)	A court may make an order setting aside a financial agreement, a termination agreement or a former financial agreement if, and only if, the court is satisfied that —

(a)	the agreement was obtained by fraud (including non-disclosure of a material matter);
(b)	the agreement is void, voidable or unenforceable;
(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;

(d)

since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and

development of a child of the de facto

relationship) and, as a result of the change, the

child or, if the applicant has caring

responsibility for the child (within the meaning

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 47

of subsection (2)), a party to the agreement will

suffer hardship if the court does not set the

agreement aside; or

(e)	in respect of the making of a financial agreement or former financial agreement, a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable.

(2)	For the purposes of subsection (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;
(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.

205ZW. Validity, enforceability and effect of financial

agreements, termination agreements and former

financial agreements — FLA s. 90KA

The question of whether a financial agreement, a

termination agreement or a former financial agreement

is valid, enforceable or effective is to be determined by

a court according to the principles of law and equity

that are applicable in determining the validity,

enforceability and effect of contracts and purported

contracts, and, in proceedings relating to such an

agreement, a court —

(a)	subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the Supreme Court has, may grant and is required to have in proceedings in connection with

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 48

contracts or purported contracts, being

proceedings in which the Supreme Court has

original jurisdiction;

(b)	has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the rules; and
(c)	in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

”.

48. Section 235A inserted

After section 235 the following section is inserted —

“

235A.

Injunctions relating to de facto relationships —

FLA s. 114

(1)	A person may institute proceedings in a court for an injunction in relation to a matter arising out of a de facto relationship and the court hearing the proceedings may make an order or grant an injunction as it considers proper with respect to the proceedings, including —

(a)	an injunction for the personal protection of a de facto partner;
(b)	an injunction restraining a de facto partner from entering or remaining in —

(i) the home previously shared by the de facto partners;

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 49

(ii) a de facto partner’s principal place of residence;

(iii) a place of residence or work of a de facto partner; or

(iv) a specified area that contains a place of a kind referred to in this paragraph;

(c)	an injunction in relation to the property of a de facto partner; or
(d)	an injunction relating to the use or occupancy of the home previously shared by the de facto partner.

(2)

In any proceedings under this Act (other than

proceedings to which subsection (1) applies) the court

hearing the proceedings may grant an injunction with

respect to a matter to which the proceedings relate, by

interlocutory order or otherwise, in any case in which it

appears to the court to be just or convenient to do so.

(3)

An injunction or order under this section may be

granted unconditionally or on such terms and

conditions as a court considers appropriate.

”.

49. Section 236 amended

(1)	Section 236(1)(a) is amended by inserting after “235” —
“ or 235A ”.
(2)	Section 236(2) is amended by inserting after “235” —
“ or 235A ”.

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 50

50. Section 244 amended

Section 244(3) is amended as follows:

(a)	in paragraph (t) by inserting after “mediators” —

“ and arbitrators ”;

(b)	in paragraph (u) by inserting after “mediation” —

“ or arbitration or orders under section 60B ”;

(c)	in paragraph (v) by inserting after “mediated” —

“ or arbitrated ”;

(d)	in paragraph (w) by —

(i) inserting after “mediator” —

“ or arbitrator ”; and

(ii) inserting after “mediating” —

“ or arbitrating ”;

(e)	in paragraph (x) by —

(i) inserting after “mediators” —

“ or arbitrators ”; and

(ii) inserting after “mediating” —

“ or arbitrating ”;

(f)	in paragraph (y) by inserting after “mediation” —

“ or arbitration ”;

(g)	in paragraph (z) by —

(i) inserting after “mediation” —

“ and arbitration ”; and

(ii) inserting after “mediators” —

“ and arbitrators ”;

(h)	at the end of paragraph (z) by deleting “and”;

Family Court Amendment Act 2002

Part 3	Amendments about de facto relationships
s. 51

(i) after paragraph (z) by inserting —

“

(zaa)

the registration of awards under sections 60A or

60B;

(zab)

the time and manner of making applications for review of registered awards under section 60D or for orders setting aside registered awards

under section 60E; and

”.

51. Section 245 amended

(1)	After section 245(2)(b) the following paragraphs are inserted —

“

(ba)	the requirements to be complied with by a person who is, or wishes to become, an arbitrator;

(bb) “ family and child ”.

anything in respect of which rules may be made under section 244(3)(t), (u), (v), (w), (x), (y) or (z);

”.

(2)	Section 245(2)(d) is amended by deleting “community mediator or a private” and inserting instead —
(3)	Section 245(4) is amended by inserting after “and” —
“ , subject to subsection (5), ”.
(4)	After section 245(4) the following subsection is inserted —

“

(5)	A penalty provided for contravention of a regulation made for the purposes of subsection (2)(d) is not to exceed $1 100.

”.

Family Court Amendment Act 2002

Amendments about de facto relationships	Part 3
s. 52

52. Consequential and related amendments — Schedule 1

Schedule 1 has effect.

Family Court Amendment Act 2002

Part 4	Other amendments
s. 53

Part 4 — Other amendments

53. Section 44 amended

(1)

Section 44 is amended by inserting before “Without” the

subsection designation “(1)”.

(2)

At the end of section 44 the following subsection is inserted —

“

(2)	A transfer under subsection (1) may be made on the application of any party to the proceedings.

”.

54. Section 79 amended

(1)	Section 79(2)(b) is amended as follows:

(a)	after subparagraph (i) by deleting “or”;
(b)

after subparagraph (ii) by deleting the full stop and “

; 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.

”.

(2)	After section 79(2) the following subsection is inserted —

“

(2a)	A reference in subsection (2)(b)(i), (ii) and (iii) to the plan does not include a reference to any child maintenance provisions.

”.

Family Court Amendment Act 2002

Other amendments	Part 4
s. 55

55. Section 88 amended

After section 88(b) the following paragraph is inserted —

“ (ba)

a grandparent of the child; ”.

56. Section 113 amended

Section 113 is amended after paragraph (d) by deleting “and”

and inserting —

“

(da)

Section 118(1) is amended after paragraph (b) by deleting “or”

and inserting —

deals with varying the maintenance of certain

children (Subdivision 5A); and

”.

57. Section 118 amended

“ (ba)

a grandparent of the child; or ”.

58. Section 123 amended

After section 123(1) the following subsection is inserted —

“

(1a)	The court may make a child maintenance order referred to in subsection (1), in relation to a child who is 17 years of age, to take effect when or after the child attains the age of 18 years.

”.

59. Section 128 amended

(1)

Section 128(1)(b) is amended by deleting “applies” and

inserting instead —

“ or persons (each of whom could do that) apply ”.

Family Court Amendment Act 2002

Part 4	Other amendments
s. 59

(2)	After section 128(1) the following subsections are inserted —

“

(1a)	With the consent of all the parties to the first order, a court may make an order —

(a) discharging the first order;

(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;
(c)	if the operation of the order has been suspended under paragraph (b) or subsection (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, a 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.

”.

(3)	Section 128(2) is amended as follows:

(a)	by deleting “A” and inserting instead —

“ In any other case, a ”;

(b)	in paragraph (c) by inserting after “(b)” —

“ or subsection (1a)(b) ”.

Family Court Amendment Act 2002

Other amendments	Part 4
s. 60

60. Subdivision 5A inserted in Part 5 Division 7

After section 128 the following Subdivision is inserted —

“

Subdivision 5A — Varying the maintenance of certain

children

128A.

Varying the maintenance of certain children —

FLA s. 66SA

(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 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, 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.

(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

Family Court Amendment Act 2002

Part 4	Other amendments
s. 61

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.

”.

61. Section 131A inserted and transitional

(1)	After section 131 the following section is inserted —

“

131A.

Children who are 18 or over: change of

circumstances — FLA s. 66VA

(1)	A child maintenance order made under section 123 —

(a)	to enable the child to complete the child’s 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.

”.

Family Court Amendment Act 2002

Other amendments	Part 4
s. 62

(2)	The amendment effected by subsection (1) does not apply in relation to child maintenance orders made before the commencement of this section.

62. Section 132 replaced and transitional

(1)	Section 132 is repealed and the following section is inserted instead —

“

132. Recovery of arrears — FLA s. 66W

(1)

Nothing in section 123(3), or in this Subdivision (apart from subsection (2)), affects the recovery of arrears due under a child maintenance order in relation to a child

when the order ceases to be in force.

(2)

If arrears are due under such an order when the order

ceases to be in force, the court may, by order,

retrospectively —

(a)	discharge the order if there is just cause for doing so; or
(b)	vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that —

(i) the circumstances of the person liable to pay the arrears are such as to justify the variation;

(ii) the circumstances of the person entitled to receive the arrears are such as to justify the variation; or

(iii)

favour of, or that was binding on, a legal

personal representative, the

in the case of an order that operated in to justify the variation.

”.

Family Court Amendment Act 2002

Part 4	Other amendments
s. 63

(2)	The amendment made by subsection (1), applies in relation to arrears that are outstanding on or after the commencement of this section.

63. Section 144 amended

Section 144 is amended after paragraph (c) by deleting “or” and

inserting instead —

“ (ca)

a grandparent of the child; or ”.

64. Section 149 amended

Section 149(g) is amended by deleting “the arrest, without

warrant, of a” and inserting instead —

“ or directing a person to arrest, without warrant, a ”.

65. Section 152 amended

Section 152 is amended after paragraph (c) by deleting “or” and

inserting instead —

“ (ca)

a grandparent of the child; or ”.

66. Section 155 amended

(1)

Section 155 is amended by inserting before “A” the subsection

designation “(1)”.

(2)

At the end of section 155 the following subsection is inserted —

“

(2)	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.

”.

Family Court Amendment Act 2002

Other amendments	Part 4
s. 67

67. Section 214A inserted

After section 214 the following section is inserted —

“

214A.

Children swearing affidavits, being called as

witnesses or being present in court — FLA s. 100B

(1)	A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless a court
makes an order allowing the child to do so.
(2)	A child must not be called as a witness in, or be present during, proceedings in a court, unless a court makes an order allowing the child to be called as a witness or to be present (as the case may be).
(3)	In this section —
“child” means a child under 18 years of age.

”.

68. Section 219A inserted

After section 219 the following section is inserted in Part 9 —

“

219A.

Maintenance orders — more than 12 months old —

FLA s. 106

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 old.

”.

Family Court Amendment Act 2002

Part 4	Other amendments
s. 69

69. Section 236 amended

(1)

Section 236(1)(b) is amended by deleting “or molesting” and

inserting instead —

“ , molesting or stalking ”.

(2)

Section 236(6) is repealed and the following subsection is

inserted instead —

“

(6)	In this section —
“holding 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.

”.

70. Section 240 amended

After section 240(2) the following subsection is inserted —

“

(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.

”.

71. Section 243 amended

(1)

Section 243 is amended in subsections (1) and (2) by deleting

“or television” in both places where it occurs and inserting

instead —

“ , television or other electronic means ”.

Family Court Amendment Act 2002

Other amendments	Part 4
s. 71

(2)

Section 243(3) is amended in paragraphs (b) and (c) by inserting

after “televised account” in both places where it occurs —

“ or an account by other electronic means ”.

(3)

Section 243(7) is amended by deleting “Attorney General” and

inserting instead —

“

Director of Public Prosecutions appointed under section 5 of the Director of Public Prosecutions Act 1991

”.

(4)	Section 243(8) is amended as follows:

(a)	by inserting after paragraph (d) the following paragraph —

“

(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;

”;

(b)	after paragraph (f)(i) by deleting “or”;
(c)	after paragraph (f)(ii) by deleting the full stop and inserting —

“

; or

(iii) to a natural person who is a party to any proceedings under this Act, in connection with the conduct of those proceedings.

”.

Family Court Amendment Act 2002

Part 4	Other amendments
s. 72

(5)	Section 243(9) is amended as follows:

(a)	in the definition of “court” —

(i) in paragraph (a) by inserting after “Act” —

“ , the regulations ”; and

(ii) in paragraph (b) by deleting the full stop and inserting a semicolon;

(b)	after the definition of “court” by inserting —

“

“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.

”.

72. Section 243A inserted

After section 243 the following section is inserted —

“

243A.

Use of reasonable force in arresting persons —

FLA s. 122AA

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.

”.

Family Court Amendment Act 2002

Other amendments	Part 4
s. 73

73. Section 245 amended

After section 245(4) the following subsection is inserted —

“

(5)	To the extent of any inconsistency between regulations made under this Act and rules made under this Act, the regulations prevail.

”.

74. References to “recognizance” changed to “bond”

(1)	The provisions referred to in the Table to this subsection are amended by deleting “recognizance” in each place where it occurs and inserting instead —
“ bond ”.

Table

Section 103(2)(a)

Section 230(6) and (7)

Section 105(1)(b)

Section 244(3)(p)

Section 156(3)(b) and (c)

Section 174 paragraph (v) of

the definition of “Division 10

contact order”

(2)

Section 244(3)(o) is amended by deleting “recognizances” and

inserting instead —

“ bonds ”.

75. Certain penalties increased

The provisions referred to in column 1 of the Table to this

section are amended by deleting the amount specified in

column 2 and inserting instead the amount specified in

column 3.

Family Court Amendment Act 2002

Part 4	Other amendments
s. 75

Table

Provision amended	Amount	Amount inserted
deleted

Section 109(2)	$6 000	$6 600
Section 110(2)	$6 000	$6 600
Section 148(1)	$12 000	$13 200
Section 156(3)(a)	$1 000	$1 100
Section 230(9)	$1 000	$1 100
Section 243(1), in paragraph (a)
of the penalty provision	$10 000	$11 000
Section 243(1), in paragraph (b)
of the penalty provision	$5 000	$5 500
Section 243(2), in paragraph (a)
of the penalty provision	$10 000	$11 000
Section 243(2), in paragraph (b)
of the penalty provision	$5 000	$5 500
Section 243(6), in paragraph (a)
of the penalty provision	$5 000	$5 500
Section 243(6), in paragraph (b)
of the penalty provision	$2 500	$2 750
Section 244(5) Section 245(4)	$5 000	$5 500
$5 000	$5 500

Family Court Amendment Act 2002

Consequential and related amendments

Schedule 1

Schedule 1 — Consequential and related amendments

[s. 52]

1. Administration Act 1903 amended

(1)	The amendments in this clause are to the Administration Act 1903*.
[* Reprinted as at 1 July 1999.]
(2)	Section 13(1) is amended by deleting “section 14” and inserting instead —
“ sections 14 and 15 ”.
(3)	Section 14(1) is amended by deleting “Where” and inserting instead —
“ Subject to this section and section 15, where ”.
(4)	Section 14(6) is repealed and the following subsection is inserted instead —

“

(6)

If —

(a)	a surviving husband or wife of the intestate is not entitled to the whole of the intestate property in accordance with this section and section 15; and
(b)	there is an interest within the meaning of clause 1(1)(b) of the Fourth Schedule,

then that Schedule applies with respect to that interest.

”.

(5)	After section 14 the following section is inserted —

“

15. De facto partners and distribution on intestacy

(1)	If the intestate dies leaving a de facto partner but no husband or wife, then where the de facto partner and the intestate lived as de facto partners for a period of at least 2 years immediately before the death of the intestate, the de facto partner shall be entitled, in accordance with

Family Court Amendment Act 2002

Schedule 1

Consequential and related amendments

section 14, to the intestate property to which a husband or

wife of the intestate would have been entitled, had the

intestate died leaving a husband or wife.

(2)	If the intestate dies leaving a husband or wife and a de facto partner, then where —

(a)

the de facto partner and the intestate lived as immediately before the death of the intestate; and

the de facto partner shall be entitled, to one-half of the

intestate property to which the husband or wife would have

been entitled in accordance with section 14 but for this

subsection and the husband or wife shall be entitled to the

other half of that property.

the intestate did not, during the whole or any part of person to whom he or she was married,

(b)

(3)	If the intestate dies leaving a husband or wife and a de facto partner, then where —

(a)

the de facto partner and the intestate lived as immediately before the death of the intestate; and

the de facto partner shall be entitled, in accordance with

section 14, to the intestate property to which the husband or

wife would have been entitled but for this subsection.

the intestate did not, during the whole or any part of person to whom he or she was married,

(b)

(4)

Where under this section a de facto partner is entitled to

intestate property and the intestate dies leaving more than

one de facto partner so entitled, those de facto partners are

entitled to that property in equal shares.

(5)

Where under this section a de facto partner is entitled to

intestate property, then for the purposes of section 14 and

the Fourth Schedule, the de facto partner is to be taken to be

a husband or wife, as is applicable, and all references to a

Family Court Amendment Act 2002

Consequential and related amendments

Schedule 1

husband or wife in those provisions are to be construed

accordingly.

(6)	In this section —
“the intestate” and “the intestate property” have the same

respective meanings as they have in section 14.

(7)

The amendments made to this Act by the Family Court

Amendment Act 2002 do not apply to or in respect of the

estate of a person who died intestate as to all or any of the

person’s property before the commencement of that Act,

and the estate of such a person is to be distributed as if that

Act had not been passed.

”.

(6)

Section 139(1)(a) is amended by deleting “person;” and inserting

instead —

“

person or a person who was living as a de facto partner of

the deceased person immediately before the deceased

person’s death;

”.

(7)	The heading to the Fourth Schedule is amended by deleting “of surviving spouse of intestate as respects the matrimonial home” and inserting instead —
“ in respect of dwelling houses ”.
(8)	Clause 1(1)(a) of the Fourth Schedule is deleted.
(9)	Clause 1(1)(c) of the Fourth Schedule is amended by deleting “the Table” and inserting instead —
“ sections 14 and 15 ”.

Family Court Amendment Act 2002

Schedule 1

Consequential and related amendments

2. Stamp Act 1921 amended

(1)	The amendments in this clause are to the Stamp Act 1921*.
[*	Reprinted as at 22 October 1999.
For subsequent amendments see 2000 Index to Legislation of Western Australia Table 1, p. 423-4 and Act Nos. 3, 4, 10 and 12 of 2001.]
(2)	Section 112UA(1) is amended by inserting in the appropriate alphabetical position the following definition —
“

“de facto relationship” means a de facto relationship which

the Commissioner is satisfied comes within section 205Z(1)(a), (b) or (c) of the Family Court Act 1997;

”.

(3)	Section 112UB(1) is repealed and the following subsections are inserted instead —

“

(1)	Sections 112UC and 112UD do not apply to or in relation to —

(a)	an order; or
(b)	a maintenance agreement between parties who are married to each other or have been married to each other,

or in relation to an instrument of conveyance or transfer of property pursuant to such an order or agreement unless the parties referred to in the order or the agreement are

separated or divorced from each other.

(1a)	Sections 112UC and 112UD do not apply to or in relation to —

(a)	an order under Part 5A of the Family Court Act 1997; or
(b)	a maintenance agreement between de facto partners,

or in relation to an instrument of conveyance or transfer of property pursuant to such an order or agreement unless the de facto relationship between the de facto partners that are referred to in the order or agreement has ended.

”.

Family Court Amendment Act 2002

Consequential and related amendments

Schedule 1

(4)	After section 112UB(2) the following subsection is inserted —

“

(3)	A statement in a maintenance agreement to the effect that —

(a)	the parties to a marriage are separated or divorced from each other; or
(b)	the de facto relationship between de facto partners has ended,

is conclusive evidence of the fact stated, in the absence of

evidence to the contrary.

”.

By Authority: JOHN A. STRIJK, Government Printer