Family Law Amendment Act 1983 (Cth)
PART I—PRELIMINARY
Section
1. Short title, &c.
2. Commencement
PART II—MISCELLANEOUS AMENDMENTS
3. Interpretation
4. Repeal of section 5 and substitution of new sections—
5. Certain children deemed to be children of a marriage
5a. Certain children deemed to be children of mother’s husband
5. Child welfare law not affected
6. Conciliation
7. Notice seeking counselling
8. Advice as to counselling
9. Insertion of new section—
16a. Conciliation counselling
10. Admissions made to marriage counsellors, &c.
11. Interpretation
12. Insertion of new sections—
21a. Divisions of Court
21b. Arrangement of business of Court
13. Appointment, removal and resignation of Judges
TABLE
OF PROVISIONS—
Section
14. Exercise of jurisdiction
15. Repeal of section 29
16. Original jurisdiction of Family Court
17. Officers of Court
18. Jurisdiction in matrimonial causes
19. Jurisdiction of Family Court
20. Law to be applied
21. Institution of proceedings
22. Stay and transfer of proceedings
23. Transfer of proceedings from court of summary jurisdiction in certain cases
24. Dissolution of marriage
25. Interpretation
26. Insertion of new section—
60a. Guardianship and custody
27. Conferences with court counsellors or welfare officers
28. Insertion of new section—
62a. Reports by court counsellors and welfare officers
29. Powers of court in custodial proceedings
30. Separate representation of child
31. Overseas custody orders
32. Interfering with child subject to custody order
33. Insertion of new sections—
70a. Certain children not to be taken out of Australia
70b. Obligation of owners, &c, of vessels
34. Repeal of section 72 and substitution of new section—
72. Right of spouse to maintenance
35. Matters to be taken into consideration with respect to maintenance
36. Alteration of property interests
37. Setting aside of orders altering property interests
38. Cessation of orders
39. Modification of maintenance orders
40. Execution of instruments by order of court
41. Transactions to defeat claims
42. Insertion of new section—
85a. Ante-nuptial and post-nuptial settlements
43. Registration of maintenance agreements
44. Repeal of section 87 and substitution of new section—
87. Operation of maintenance agreements entered into in substitution for rights under Act
45. Enforcement of maintenance agreements
46. Repeal of section 90 and substitution of new section—
90. Certain instruments not liable to duty
47. Insertion of new section—
91b. Intervention by child welfare officer
48. Intervention by other persons
49. Insertion of new section—
93a. Appellate jurisdiction of Family Court
50. Appeals to Family Court
51. Appeals from courts of summary jurisdiction
52. Procedure
53. Insertion of new section—
98a. Proceedings in absence of parties
54. Insertion of new section—
99a. Paternity tests
55. Overseas decrees
56. Enforcement generally
57. Persons not to be imprisoned for failure to comply with certain orders
58. Contempt
59. Overseas enforcement of maintenance orders and enforcement of overseas maintenance orders
60. Convention on Recovery Abroad of Maintenance
TABLE
OF PROVISIONS—
Section
61. Insertion of new sections—
111a. Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations
111b. Convention on the Civil Aspects of International Child Abduction
62. Repeal of section 112 and substitution of new section—
112. Arrangements with States and Northern Territory
63. Insertion of new section—
112a. Interpretation
64. Injunctions
65. Insertion of new sections—
114aa. Powers of arrest
114ab. Operation of State and Territory laws
66. Establishment of Institute
67. Insertion of new section—
114n. Annual report
68. Family Law Council
69. Costs
70. Insertion of new sections—
117a. Reparation for certain losses and expenses relating to children
117b Interest on moneys ordered to be paid
117c. Offers of settlement
71. Repeal of section 118 and substitution of new section—
118. Frivolous or vexatious proceedings
72. Repeal of section 121 and substitution of new section—
121. Restriction on publication of court proceedings
PART III—AMENDMENTS RELATING TO RULES OF COURT AND REGULATIONS
73. Insertion of new sections—
37a. Powers of Registrars
37b. Independence of Registrars
74. Repeal of section 106
75. Repeal of section 123 and substitution of new sections—
123. Rules of Court
124. Rules Advisory Committee
125. Regulations
76. Further amendments
SCHEDULE
amendments relating to rules of court and regulations
[
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(a) by inserting after the definition of “appeal” in sub-section (1) the following definition:
“‘Appeal Division’ means the Appeal Division of the Family Court;”;
(b) by inserting after the definition of “Australia” in sub-section (1) the following definition:
“‘Commonwealth instrumentality’ means a body or authority established for a public purpose by or under a law of the Commonwealth or of the Australian Capital Territory;”;
(c) by omitting “(e)” from the definition of “financial or custodial proceedings” in sub-section (1) and substituting “(eb)”;
(d) by inserting after the definition of “financial or custodial proceedings” in sub-section (1) the following definitions:
“‘Full Court’ means—
(a) 3 or more Judges of the Family Court sitting together, where a majority of those Judges are members of the Appeal Division; or
(b) in relation to particular proceedings—
(i) 3 or more Judges of the Family Court sitting together, where, at the commencement of the hearing of the proceedings, a majority of those Judges were members of the Appeal Division; or
(ii) 2 Judges of the Family Court sitting together, where those Judges are permitted, by sub-section 28 (4), to complete the hearing and determination, or the determination, of those proceedings;
‘General Division’ means the General Division of the Family Court;
‘guardian’, in relation to a child, includes a person who has been granted (whether alone or jointly with another person or other persons) guardianship of the child under this Act or under the repealed Act;”;
(e) by inserting “and whether within or outside Australia” after “Act” in the definition of “maintenance agreement” in sub-section (1);
(f) by inserting after the definition of “maintenance agreement” in sub-section (1) the following definition:
“‘marriage counselling’ includes the counselling of a person in relation to—
(a) entering into marriage;
(b) reconciliation of the parties to a marriage;
(c) separation of the parties to a marriage;
(d) the dissolution or annulment of a marriage; or
(e) adjusting to the dissolution or annulment of a marriage,
whether that counselling is provided in relation to the proposed marriage, marriage or former marriage of that person or in relation to the proposed marriage, marriage or former marriage of another person or other persons, and whether that counselling is provided to that person individually or as a member of a group of persons;”;
(g) by inserting “, or by the parties to a marriage,” after “marriage” (first occurring) in paragraph (a) of the definition of “matrimonial cause” in sub-section (1);
(h) by omitting paragraphs (c), (ca) and (cb) of the definition of “matrimonial cause” in sub-section (1) and substituting the following paragraphs:
“(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage;
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings—
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief; or
(iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas country, where that dissolution, annulment or legal separation is recognized as valid in Australia under section 104;
(cb) proceedings between the parties to a marriage with respect to the custody, guardianship or maintenance of, or access to, a child of the marriage;
(cc) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the custody, guardianship or maintenance of, or access to, the child;
(cd) proceedings instituted after the death of a party to a marriage in whose favour a custody order had been made in respect of a child of that marriage, being proceedings with respect to the custody of that child, other than proceedings for the making of an order, or the taking of any other action, of the kind referred to in sub-section 10 (2);
(ce) proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, being
proceedings to which one party to the marriage is a party (whether or not the other party to the marriage is also a party to the proceedings), other than proceedings for the making of an order, or the taking of any other action, of the kind referred to in sub-section 10 (2);
(cf) proceedings between the parties to a marriage with respect to the welfare of a child of the marriage;
(eg) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the welfare of the child;
(ch) proceedings with respect to the welfare of a child of a marriage, being proceedings to which one party to the marriage is a party (whether or not the other party to the marriage is also a party to the proceedings), other than proceedings for the making of an order, or the taking of any other action, of a kind referred to in sub-section 10 (2);”;
(j) by inserting “(other than proceedings under a law of a State or Territory prescribed for the purposes of section 114ab)” after “relationship” in paragraph (e) of the definition of “matrimonial cause” in sub-section (1);
(k) by omitting “or” (last occurring) from paragraph (e) of the definition of “matrimonial cause” in sub-section (1);
(m) by inserting after paragraph (e) of the definition of “matrimonial cause” in sub-section (1) the following paragraphs:
“(ea) proceedings between—
(i) the parties to a marriage; or
(ii) if one of the parties to a marriage has died—the other party to the marriage and the legal personal representative of the deceased party to the marriage,
being proceedings—
(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;
(iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or
(v) with respect to the enforcement under this Act of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89;
(eb) proceedings with respect to the enforcement of a decree made under the law of an overseas country in proceedings of a kind referred to in paragraph (c), (cb), (cc), (cd) or (ce); or”;
(n) by omitting “(e)” from paragraph (f) of the definition of “matrimonial cause” in sub-section (1) and substituting “(eb)”;
(o) by inserting after the definition of “ordinarily resident” in sub-section (1) the following definition:
“‘overseas country’ means a country, or part of a country, outside Australia;”; and
(p) by omitting sub-section (2) and substituting the following sub-sections:
“(2) A reference in this Act to a party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere, or that has been terminated by the death of one party to the marriage.
“(3) A reference in this Act to a child of a marriage includes a reference to a person who is a child of a marriage that has been dissolved or annulled, in Australia or elsewhere, or that has been terminated by the death of one party to the marriage.
“(4) Unless the contrary intention appears, a reference in this Act to proceedings under this Act, or proceedings instituted under this Act, includes a reference to proceedings under the regulations, or proceedings instituted under the regulations, as the case may be.”.
“5. (1) For the purposes of each application of this Act in relation to a marriage—
(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
(b) a child of the husband and wife born before the marriage;
(c) a child born to the wife, being a child who, under section 5a, is deemed to be the child of the husband;
(d) a child born to a former wife of the husband, being a child who, under section 5a, is deemed to be the child of the husband, if, at the relevant time, the child was ordinarily a member of the household of the husband and wife;
(e) a child of either the husband or the wife, including—
(i) an ex-nuptial child of either of them; and
(ii) a child adopted by either of them (whether alone or together with another person or other persons),
if, at the relevant time, the child was ordinarily a member of the household of the husband and wife; and
(f) a child (other than a child mentioned in any of the preceding paragraphs) who has been, and was at the relevant time, treated by the husband and wife as a child of their family, if, at the relevant time, the child was ordinarily a member of the household of the husband and wife,
shall be deemed to be a child of the marriage and a child of the husband and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.
“(2) For the purposes of sub-section (1), the relevant time, in relation to any proceedings, is—
(a) if the husband and wife were not living together at the time when the proceedings were instituted—the time immediately preceding the time when the husband and wife separated, or, if they have separated on more than one occasion, the time immediately preceding the time when they last separated before the institution of the proceedings; or
(b) if the husband and wife were living together at the time when the proceedings were instituted—the time immediately preceding the institution of the proceedings.
“(3) The provisions of this section apply in relation to a purported marriage that is void as if the purported marriage were a marriage and as if the parties to the purported marriage were husband and wife.
“5a. (1) A child born to a woman as a result of the carrying out, during the period in which the woman was married to a man, of a medical procedure in relation to that woman, being a child who is not biologically the child of that man, shall, for the purposes of section 5, be deemed to be a child of that man if—
(a) the medical procedure was carried out with the consent of that man; or
(b) under an Act or under a law of a State or Territory the child is deemed to be the child of that man.
“(2) The provisions of this section apply in relation to a purported marriage that is void as if the purported marriage were a marriage and as if the parties to the purported marriage were husband and wife.
“(3) In this section, ‘medical procedure’ means artificial insemination or the implantation of an embryo in the body of a woman.”.
(a) by omitting from sub-section (2) “Subject to sub-section (3), nothing” and substituting “Nothing”; and
(b) by omitting from sub-section (3) “and an order made in accordance with this sub-section has effect notwithstanding any order or action of the kind referred to in paragraph (2) (b) or (d) made or taken before the making of the order made in accordance with this sub-section”.
“16a. The Family Court and any other court exercising jurisdiction under this Act, and any legal practitioner acting in proceedings under this Act or consulted by a person who is considering instituting proceedings under this Act, shall have regard to the need to direct the attention of parties to such proceedings and persons considering such proceedings to—
(a) the facilities provided by courts exercising jurisdiction under this Act for counselling to assist parties to marriages and children of marriages to adjust to the consequences of marital breakdown; and
(b) the procedures available for the resolution by conciliation of matters arising in the proceedings.”.
“21a. For the purposes of the organization and conduct of the business of the Court, the Court comprises 2 Divisions, namely, the Appeal Division and the General Division.
“21b. The Chief Judge is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to the Judge or Judges who is or are to constitute the Court, or the Full Court, in particular matters or classes of matters.”.
“(2aa) Subject to sub-section (2ae), the members of the Appeal Division of the Court are the Chief Judge and such other Judges as are assigned to the Appeal Division under this section.
“(2ab) The Governor-General may, in the commission of appointment of a Judge or, with the consent of the Judge but not otherwise, at a later time assign a Judge to the Appeal Division.
“(2ac) The Governor-General shall not assign a Judge to the Appeal Division under sub-section (2ab) if, as a result of that assignment, the number of members of the Appeal Division assigned under that sub-section would exceed 5.
“(2ad) The Governor-General may, in the commission of appointment of a Judge or, with the consent of the Judge but not otherwise, at a later time assign a Judge (other than a Judge who has been assigned to the Appeal Division under sub-section (2ab)) to the Appeal Division for a period of 2 years.
“(2ae) A Judge who has been assigned to the Appeal Division under sub-section (2ad) ceases to be a member of the Appeal Division at the expiration of the period of 2 years commencing on the date of the assignment.
“(2af) A Judge (other than the Chief Judge) who is not assigned to the Appeal Division shall be deemed to be assigned to the General Division.
“(2ag) Notwithstanding anything contained in any other Act, a person may hold office at the one time as a Judge of the Court and as a Judge of a prescribed court or of 2 or more prescribed courts.
“(2ah) In sub-section (2ag), ‘prescribed court’ means—
(a) a court (other than the Court) created by the Parliament; or
(b) the Supreme Court of the Northern Territory.”.
(a) by omitting from sub-section (2) “one or more Judges” and substituting “one Judge or by a Full Court”;
(b) by inserting after sub-section (2) the following sub-section:
“(2a) Nothing in this Act prevents a Judge who is a member of the Appeal Division from exercising the jurisdiction of the Court that, under sub-section (1) or (2), may be exercised by one or more Judges.”; and
(c) by omitting sub-sections (4) and (4a) and substituting the following sub-section:
“(4) Where, after a Full Court (including a Full Court constituted in accordance with this sub-section) has commenced the hearing, or further hearing, of proceedings and before the proceedings have been determined, one of the Judges constituting the Full Court dies, resigns his office, ceases to be a member of the Court by reason that the term of his appointment expires or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceedings, then the hearing and determination, or the determination, of the proceedings may be completed—
(a) if only 2 Judges remain and one of those Judges is assigned to the Appeal Division, or if more than 2 Judges remain and a majority of those Judges are assigned to the Appeal Division—by the Court constituted by the remaining Judges; or
(b) with the consent of the parties—by the Court constituted by the remaining Judge or Judges and an additional Judge or Judges, where a majority of the Judges constituting the Court are assigned to the Appeal Division.”.
“(1) Jurisdiction is conferred on the Family Court with respect to—
(a) matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act;
(b) matters arising under the
Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act;(c) matters arising under a law of a Territory concerning—
(i) the adoption of children;
(ii) the guardianship, custody or maintenance of children;
(iii) payments of a kind referred to in section 109;
(iv) the property of the parties to a marriage or either of them, being matters arising between those parties other than matters referred to in the definition of ‘matrimonial cause’ in sub-section 4 (1); or
(v) the rights and status of a person who is an ex-nuptial child, and the relationship of such a person to his parents; and
(d) matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.”.
(a) by inserting after sub-section (3) the following sub-section:
“(3a) The Principal Registrar of the Court may, subject to this Act, the regulations and any directions of the Chief Judge, give directions to the officers of the Court in relation to—
(a) the manner in which the functions and duties of those officers are to be performed and the powers of those officers are to be exercised; and
(b) the operation of any Registry of the Court.”;
(b) by omitting from paragraph (5) (a) “and” (last occurring);
(c) by inserting after paragraph (5) (a) the following paragraphs:
“(aa) is responsible for dealing, on behalf of the Court, with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of writs, orders, decrees, warrants, precepts, process and commands of the Court that are directed to members of any of those police forces;
(ab) is responsible for the security of the Court and for the personal security of the Judges and the officers of the Court; and”; and
(d) by adding at the end of paragraph (9) (b) “or of a Territory”.
(a) by omitting from sub-section (1) “a person may institute a matrimonial cause under this Act” and substituting “a matrimonial cause may be instituted under this Act”;
(b) by omitting from sub-section (2) “a person may institute a matrimonial cause under this Act, not being proceedings for principal relief,” and substituting “a matrimonial cause, not being proceedings for principal relief, may be instituted under this Act”;
(c) by omitting from sub-section (3) “by a party to the marriage”;
(d) by omitting sub-section (4) and substituting the following sub-sections:
“(4) Proceedings of a kind referred to in the definition of ‘matrimonial cause’ in sub-section 4 (1), other than proceedings for a decree of dissolution of marriage or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if—
(a) in the case of proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage—either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date;
(b) in the case of proceedings between the parties to a marriage—
(i) either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; or
(ii) where the proceedings relate to a child of the marriage—the child is present in Australia at the relevant date; and
(c) in any other case—
(i) any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; or
(ii) where the proceedings relate to a child of a marriage—the child is present in Australia at the relevant date.
“(4a) In sub-section (4), ‘relevant date’, in relation to proceedings, means—
(a) if the application instituting the proceedings is filed in a court—the date on which the application is so filed; or
(b) in any other case—the date on which the application instituting the proceedings is made.”;
(e) by omitting sub-sections (5), (6) and (7) and substituting the following sub-sections:
“(5) Subject to this Part, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which—
(a) matrimonial causes are instituted under this Act;
(b) matrimonial causes are continued in accordance with section 9;
(c) proceedings are instituted under this Act with respect to the enforcement of an order that is registered in the court concerned as provided by regulations made for the purposes of section 67;
(d) proceedings are instituted under regulations made for the purposes of section 106, 109, 110, 111, 111a or 111b; or
(e) proceedings are instituted under section 117a.
“(6) Subject to this Part, each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is
conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Act in respect of which—
(a) matrimonial causes, not being proceedings for principal relief, are instituted under this Act;
(b) matrimonial causes, not being proceedings for principal relief, are continued in accordance with section 9;
(c) proceedings are instituted under this Act with respect to the enforcement of an order that is registered in the court of summary jurisdiction concerned as provided by regulations made for the purposes of section 67;
(d) proceedings are instituted under regulations made for the purposes of section 106, 109, 110, 111, 111a or 111b; or
(e) proceedings are instituted under section 117a.
“(7) The Governor-General may, by Proclamation, fix a date as the date on and after which matrimonial causes, and other proceedings, referred to in sub-section (6) may not be instituted in or transferred to a court of summary jurisdiction in a State or Territory specified in the Proclamation, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes and may be expressed to apply only to the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a part of a State or Territory specified in the Proclamation.
“(7aa) A court of summary jurisdiction in a State or Territory shall not hear or determine proceedings under this Act instituted in or transferred to that court otherwise than in accordance with any Proclamation in force under sub-section (7).”;
(f) by omitting from sub-section (8) “Jurisdiction under this Act in a matrimonial cause” and substituting “Jurisdiction with respect to a matter arising under this Act in respect of which a matrimonial cause is”; and
(g) by omitting from sub-section (9) “to hear and determine proceedings” and substituting “with respect to matters arising under any law of the Commonwealth in respect of which proceedings are”.
(a) affects the operation of that Proclamation; or
(b) operates to permit the institution in, or the transfer to, that court of proceedings in relation to which that Proclamation is expressed to have effect.
(a) by omitting from sub-section (3) “proceedings under this Act” and substituting “matrimonial causes, and other proceedings, referred to in sub-section 39 (5)”;
(b) by inserting in sub-section (3) “a specified class or” before “specified classes”; and
(c) by inserting after sub-section (4) the following sub-section:
“(4a) The Governor-General may, by Proclamation, declare that a Proclamation made under sub-section (3) is revoked on and from a specified date and, on and after the specified date, this Act (including sub-section (3)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.”.
(a) by inserting after sub-section (1) the following sub-sections:
“(1a) Proceedings under this Act for a decree of dissolution of marriage or nullity of marriage may be instituted by either party to the marriage or jointly by both parties to the marriage.
“(1b) An application for dissolution of a marriage shall not, without the leave of the court granted under sub-section (1c), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate in the prescribed form—
(a) stating that the parties to the marriage have considered a reconciliation, with the assistance of a specified person or organization, being—
(i) a marriage counsellor or an approved marriage counselling organization;
(ii) another suitable person or organization nominated by the Principal Director of Court Counselling of the Family Court; or
(iii) an appropriate officer of a Family Court of a State; and
(b) signed by that person or on behalf of that organization, as the case may be.
“(1c) Notwithstanding sub-section (1b), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for dissolution of a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in sub-section (1b), the court may—
(a) if the application has not been filed—give leave for the application to be filed; or
(b) if the application has been filed—at any time before or during the hearing of the application, declare that it is so satisfied,
and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.”;
(b) by omitting from sub-section (2) “A respondent” and substituting “Notwithstanding sub-sections (3) and (3a), a respondent”;
(c) by omitting sub-section (3) and substituting the following sub-sections:
“(3) Where, whether before or after the commencement of section 21 of the
Family Law Amendment Act 1983— (a) a decree
nisi of dissolution of marriage has become absolute; or(b) a decree of nullity of marriage has been made,
proceedings of a kind referred to in paragraph (c) or (ca) of the definition of ‘matrimonial cause’ in sub-section 4 (1) (not being proceedings under section 78 or 79a or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted, after the expiration of 12 months after—
(c) in a case referred to in paragraph (a)—the date on which the decree
nisi became absolute; or(d) in a case referred to in paragraph (b)—the date of the making of the decree.
“(3a) Notwithstanding sub-section (3), where, whether before or after the commencement of section 21 of the
Family Law Amendment Act 1983— (a) a decree
nisi of dissolution of marriage has become absolute or a decree of nullity of marriage has been made; and(b) the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked,
proceedings of a kind referred to in paragraph (c) or (ca) of the definition of ‘matrimonial cause’ in sub-section 4 (1) (not being proceedings under section 78 or 79a or proceedings seeking the
discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted—
(c) within the period of 12 months after—
(i) the date on which the decree
nisi became absolute or the date of the making of the decree of nullity, as the case may be; or(ii) the date on which the approval of the maintenance agreement was revoked,
whichever is the later; or
(d) with the leave of the court in which the proceedings are to be instituted,
and not otherwise.”; and
(d) by inserting in sub-section (4) “or (3a)” after “(3)”.
“(1) Where proceedings are instituted in a court of summary jurisdiction with respect to—
(a) the custody or guardianship of, or access to, a child of a marriage; or
(b) property of a value exceeding $1,000,
and the respondent, in an answer to the application by which the proceedings were instituted, seeks an order different from that sought in the application—
(c) the court shall, 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 Family Court or to the Supreme Court of a State or Territory; and
(d) unless the parties thereupon consent to the court hearing and determining the proceedings—the court shall transfer the proceedings to the Family Court or to the Supreme Court of a State or Territory.
“(1a) A reference in sub-section (1) to proceedings with respect to property does not include a reference to proceedings with respect to arrears of maintenance.
“(1b) Where proceedings referred to in sub-section (1) are instituted in a court of summary jurisdiction and the parties consent, as mentioned in paragraph (1) (d), 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 shall transfer the proceedings to the Family Court or to the Supreme Court of a State or Territory.”.
(a) by omitting from sub-section (1) “by a party to a marriage”; and
(b) by omitting from sub-section (1) “the marriage” (first occurring) and substituting “a marriage”.
“(a) an order the effect of which is to grant to a person—
(i) the right to custody of a child who has not attained the age of 18 years; or
(ii) a right of access to a child who has not attained the age of 18 years,
whether or not the order also has the effect of granting to the person, or to another person, other rights or responsibilities; or”.
“60a. (1) A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to that child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than—
(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the daily care and control of the child.
“(2) A person who has or is granted custody of a child under this Act has—
(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the daily care and control of the child.
“(3) The operation of sub-section (1) or (2) in relation to a child may be varied by any order made in relation to the child by a court exercising jurisdiction under this Act.
“(4)
An order made under this Act or the repealed Act, being an order in force
immediately before the commencement of section 26 of the
“(5) An order made under this Act
or the repealed Act, being an order in force immediately before the
commencement of section 26 of the
(a) where, by that order or another order in force immediately before the commencement of that section, the care and control of the child had been granted to another person—as if the first-mentioned order were an order granting to the first-mentioned person the guardianship of the child; or
(b) in any other case—as if the first-mentioned order were an order granting to the first-mentioned person the guardianship and the custody of the child.”.
(a) by omitting from sub-section (1) “or upon the request of a party to the proceedings” and substituting “, upon the request of a party to the proceedings or upon the request of a person who is representing the child pursuant to an order under section 65”;
(b) by omitting sub-section (4) and substituting the following sub-section:
“(4) Where, under sub-section (3), a court counsellor or welfare officer reports to the court that a party to proceedings has failed to attend a conference, the court may, of its own motion, upon the request of a party to the proceedings or upon the request of a person who is representing the child pursuant to an order under section 65, give such further directions in relation to the conference as the court considers appropriate.”; and
(c) by omitting from sub-section (5) “Subject to sub-section (4), evidence” and substituting “Evidence”.
“62a. (1) Where, in any proceedings under this Act, the welfare of a child who has not attained the age of 18 years is relevant, the court may direct a court counsellor or welfare officer to furnish to the court a report on such matters relevant to the proceedings as the court thinks desirable and may, if it thinks necessary, adjourn the proceedings until the report has been furnished to the court.
“(2) A court counsellor or welfare officer may include in a report prepared pursuant to a direction under sub-section (1), in addition to the matters required to be included in the report, any other matters that relate to the welfare of the child.
“(3) For the purpose of the preparation of a report by a court counsellor or welfare officer pursuant to a direction under sub-section (1), the court may
make such orders, or give such further directions, as it considers appropriate in relation to the preparation of the report including, if the court considers it appropriate, orders or directions in relation to the attendance upon the court counsellor or welfare officer of a party to the proceedings or of the child.
“(4) If a person fails to comply with any order or direction under sub-section (3), it is the duty of the court counsellor or welfare officer to report the failure to the court.
“(5) Where, under sub-section (4), a court counsellor or welfare officer reports to the court a failure of the kind referred to in that sub-section, the court may give such further directions in relation to the preparation of the report as the court considers appropriate.
“(6) A report furnished to the court in accordance with a direction given under this section may be received in evidence in any proceedings under this Act.”.
(a) by omitting from sub-section (1) “or guardianship” and substituting “, guardianship or welfare”;
(b) by omitting paragraph (1) (b) and substituting the following paragraphs:
“(b) the court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case;
(ba) subject to paragraphs (a) and (b), the court shall, unless in the opinion of the court it is not practicable, make the order that, in the opinion of the court, is least likely to lead to the institution of further proceedings with respect to the custody or guardianship of the child;
(bb) the court shall take the following matters into account:
(i) the nature of the relationship of the child with each of the parents of the child and with other persons;
(ii) the effect on the child of any separation from—
(a) either parent of the child; or
(b) any child, or other person, with whom the child has been living;
(iii) the desirability of, and the effect of, any change in the existing arrangements for the care of the child;
(iv) the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child;
(v) the capacity of each parent, or of any other person, to provide adequately for the needs of the child, including the emotional and intellectual needs of the child;
(vi) any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account; and”;
(c) by omitting from paragraph (1) (c) “and (b)” and substituting “, (b), (ba) and (bb)”;
(d) by inserting after sub-section (1) the following sub-sections:
“(1a) For the purpose of complying with the requirements of paragraph (1) (b) the court may—
(a) have regard to anything contained in a report furnished to the court in accordance with a direction under sub-section 62a (1); and
(b) subject to the regulations, inform itself as to the wishes of the child by such other means as it considers appropriate,
but nothing in this section permits the court or any person to require a child to express his wishes (if any) in relation to his custody or guardianship, in relation to access to him or in relation to any other matter relevant to the proceedings.
“(1b) A court shall not make an order (other than an order until further order or an order made with the consent of all the parties to the proceedings) in proceedings with respect to the custody, guardianship or welfare of, or access to, a child of a marriage unless—
(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a court counsellor or welfare officer;
(b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c) the court is satisfied that, having regard to the counselling and welfare facilities of the court, it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).”;
(e) by omitting sub-sections (2), (3) and (4) and substituting the following sub-section:
“(2) Without limiting the generality of sub-section (1), in proceedings with respect to the custody, guardianship or welfare of, or
access to, a child of a marriage, the court may, if it is satisfied that it is desirable to do so, make one or more of the following orders:
(a) an order placing the child in the custody of any person or of any 2 or more persons jointly (whether or not that person or any of those persons is a party to the marriage);
(b) an order placing the child in the guardianship of any person or of any 2 or more persons jointly (whether or not that person or any of those persons is a party to the marriage);
(c) an order granting to any person (whether or not that person is a party to the marriage) rights of access to the child”;
(f) by omitting sub-section (5) and substituting the following sub-section:
“(5) Where a court makes an order under this Part with respect to a child, the court may also, if it thinks the welfare of the child so requires, make one or both of the following orders:
(a) an order that compliance with the first-mentioned order shall, as far as practicable, be supervised by a court counsellor or welfare officer;
(b) an order that a court counsellor or welfare officer give to any party to the first-mentioned order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the first-mentioned order.”;
(g) by omitting sub-section (8); and
(h) by inserting after sub-section (11) the following sub-sections:
“(11a) Where—
(a) a warrant has been issued under sub-section (9) or (10) in relation to a child; and
(b) the court that issued the warrant, or another court exercising jurisdiction under this Act, is satisfied that a person (in this sub-section referred to as the ‘relevant person’) is likely to have information in relation to the child or in relation to a person who the court has reasonable cause to believe has possession of the child,
the court may order the relevant person to furnish, to an officer of the court specified in the order, such information (if any) as the relevant person has in relation to the address at which the child, or the person who the court has reasonable cause to believe has possession of the child, may be found.
“(11b) Where—
(a) a warrant has been issued under sub-section (9) or (10) in relation to a child; and
(b) the court that issued the warrant, or another court exercising jurisdiction under this Act, is satisfied that the records of a Department of State of the Commonwealth or a Commonwealth instrumentality are likely to contain information in relation to the child or in relation to a person
who the court has reasonable cause to believe has possession of the child,
the court may order the Permanent Head of the Department or the person who holds an office or position specified in the order in, or in relation to, the Commonwealth instrumentality, as the case may be, to furnish, to an officer of the court specified in the order, such information (if any) as is contained in the records of the Department or the Commonwealth instrumentality, as the case may be, in relation to the address at which the child, or the person who the court has reasonable cause to believe has possession of the child, may be found and, where such an order is made, the Permanent Head of the Department or the person who holds that office or position, as the case may be, shall comply with that order notwithstanding anything contained in any other Act.”.
(a) by omitting from sub-section (4) “the person who instituted the proceedings satisfies the court” and substituting “the court is satisfied”;
(b) by inserting in paragraph (4) (b) “since the making of the overseas custody order” after “child”; and
(c) by adding at the end thereof the following sub-sections:
“(5) Where the court, being aware that an overseas custody order is registered under this section, makes an order with respect to the custody of, or access to, the child who is the subject of the overseas custody order, the court shall cancel the registration, under this section, of that overseas custody order.
“(6) Where—
(a) an order for custody of, or access to, a child (in this section referred to as the ‘Australian order’) has been made in Australia, whether under this Act or under any other law, and is in force under this Act; and
(b) an overseas custody order relating to the child (being an overseas custody order the effect of which is different from the effect of the Australian order) has been registered under this section, whether before or after the date of the making of the Australian order, and its registration under this section has not been cancelled,
then—
(c) a person having rights of custody or access in relation to the child under the overseas custody order may apply to a court having jurisdiction under this Act for the discharge of the Australian order; or
(d) a person having rights of custody or access in relation to the child under the Australian order may apply to a court having jurisdiction under this Act for the cancellation of the registration, under this section, of the overseas custody order,
and, where an application is made under paragraph (c) or (d), the court shall cancel the registration, under this section, of the overseas custody order if—
(e) every person having rights of custody or access in relation to the child under the overseas custody order consents to the cancellation of the registration, under this section, of the overseas custody order;
(f) the court is satisfied that there are substantial grounds for believing that the welfare of the child will be adversely affected if the overseas custody order continues to operate in relation to the child; or
(g) the court is satisfied that there has been such a change in the circumstances of the child since the making of the overseas custody order that the overseas custody order should not continue to operate in relation to the child,
but otherwise the court shall discharge the Australian order.
“(7) This section does not apply in relation to—
(a) an overseas custody order that is an interim order; or
(b) an overseas custody order conferring rights of custody or access on a person where—
(i) the order was made on the application of that person;
(ii) notice of the making of the application was not served on any other person; and
(iii) no other person appeared at the hearing of the application.”.
(a) by omitting from sub-section (1) “care and control” and substituting “possession”; and
(b) by omitting sub-section (7) and substituting the following sub-section:
“(7) Where an act or omission by a person that constitutes a contravention or failure to comply with a provision of this section is an offence against any law, the person may be prosecuted and convicted under that law, but nothing in this sub-section renders any person liable to be punished twice in respect of the same act or omission.”.
“70a. (1) Where there is in force an order (including an interim order) made by a court in Australia with respect to the custody or guardianship of, or access to, a child (including an ex-nuptial child), a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, such a person, shall not take or send, or attempt to take or send, the child from Australia to a place outside Australia except—
(a) with the consent in writing (authenticated as prescribed) of each person who, under the order, is entitled (whether alone or together with another person or other persons) to the custody or guardianship of, or access to, the child; or
(b) in accordance with an order of a court made under this Act or under a law of a State or Territory at the time of, or after, the making of the first-mentioned order.
Penalty: $10,000 or imprisonment for 3 years, or both.
“(2) Where proceedings have been instituted in a court in Australia for an order with respect to the custody or guardianship of, or access to, a child (including an ex-nuptial child), and those proceedings are pending, a person who is a party to the proceedings, or a person who is acting on behalf of, or at the request of, such a person, shall not take or send, or attempt to take or send, the child from Australia to a place outside Australia except—
(a) with the consent in writing (authenticated as prescribed) of each other party to the proceedings; or
(b) in accordance with an order of a court made under this Act or under a law of a State or Territory after the institution of the proceedings.
Penalty: $10,000 or imprisonment for 3 years, or both.
“(3) An offence against this section is an indictable offence.
“(4) Notwithstanding that an offence referred to in sub-section (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is appropriate to do so and the defendant and the prosecutor consent.
“(5) Where, in accordance with sub-section (4), a court of summary jurisdiction convicts a person of an offence against this Act, the penalty that the court may impose is a fine not exceeding $5,000 or imprisonment for a period not exceeding one year, or both.
“(6) Where an act or omission by a person that constitutes an offence against sub-section (1) or (2) is also an offence against any other law, the person may be prosecuted and convicted under that other law, but nothing in this sub-section renders any person liable to be punished twice in respect of the same act or omission.
“(7) Nothing in this section shall be read as intended to prevent or restrict the operation of any law of a State or Territory under which—
(a) action may be taken to prevent a child from leaving Australia or being taken or sent outside Australia; or
(b) a person may be punished in respect of the taking or sending of a child outside Australia.
“(8) In this section, ‘child’ means a person who has not attained the age of 18 years.
“(9) Where an appeal against a decision of a court in particular proceedings has been instituted and is pending, those proceedings shall, for the purposes of sub-section (2), be taken to be pending.
“70b. (1) Where—
(a) a person (in this sub-section referred to as the ‘relevant person’) is entitled (whether alone or together with another person or other persons) to the custody or guardianship of, or access to, a child (including an ex-nuptial child) under an order referred to in sub-section 70a(1); and
(b) the relevant person has served on the master, owner or charterer of a vessel or on the agent of the owner of a vessel a statutory declaration made by the relevant person in relation to the order not earlier than 7 days before the date of service, being a statutory declaration that complies with the requirements of sub-section (3),
the person on whom the statutory declaration is served shall not, without reasonable excuse, while the order continues in force, permit the child referred to in the declaration to leave a port or place in Australia in the vessel for a destination outside Australia except—
(c) in the company, or with the consent in writing (authenticated as prescribed), of the relevant person; or
(d) in accordance with an order of a court made, under this Act or under a law of a State or Territory, at the time of, or after, the making of the first-mentioned order.
Penalty: $5,000.
“(2) Where—
(a) a person (in this sub-section referred to as the ‘relevant person’) is a party to proceedings referred to in sub-section 70a (2) for an order with respect to the custody or guardianship of, or access to, a child (including an ex-nuptial child); and
(b) the relevant person has served on the master, owner or charterer of a vessel or on the agent of the owner of a vessel a statutory declaration in relation to the proceedings made by the relevant person not earlier than 7 days before the date of service, being a statutory declaration that complies with the requirements of sub-section (4),
with the consent of all the parties to proceedings;
(h) the power, in proceedings under this Act, to make an order adjourning the hearing of the proceedings;
(j) the power under section 117 to make an order as to costs;
(k) the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders;
(m) the power to make an order exempting a party to proceedings under this Act from compliance with a provision of the regulations or Rules of Court;
(n) a power of the Court prescribed by Rules of Court made for the purposes of this section.
“(2) A Registrar shall not exercise the powers referred to in paragraph (1) (f) on application by a party to proceedings under this Act unless—
(a) the other party to the proceedings appears at the hearing of the application; or
(b) the Registrar is satisfied that notice of the intention of the first-mentioned party to make the application has been served on the other party.
“(3) A Registrar shall not exercise the powers referred to in paragraph (1) (j) except in relation to costs of or in connection with an application heard by the Registrar.
“(4) The provisions of this Act, the regulations and the Rules of Court that relate to the exercise by the Court of a power that is, by virtue of sub-section (1), exercisable by a Registrar apply in relation to an exercise of the power by a
Registrar under this section as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to the Registrar.
“(5)
Notwithstanding any other provision of this Act and any provision of the
“(6) A party to proceedings in which a Registrar has exercised any of the powers of the Court under sub-section (1) may, within the time prescribed by the Rules of Court or within such further time as is allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.
“(7) The Court may, on application under sub-section (6) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.
“(8) Where an application for the exercise of a power referred to in sub-section (1) is being heard by a Registrar and—
(a) the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under this section; or
(b) an application is made to the Registrar to arrange for the first-mentioned application to be determined by the Court,
the Registrar shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.
“(9) In this section, ‘Registrar’ means the Principal Registrar, a Registrar or a Deputy Registrar of the Court.
“37b.
(1) Notwithstanding any provision of this Act other than sub-section (3), and
any provision of the
(a) the Principal Registrar is subject to the direction and control of the Chief Judge and is not subject to the direction or control of any other person or body;
(b) a Registrar is subject to the direction and control of—
(i) the Chief Judge;
(ii) any other Judge authorized by the Chief Judge to direct and control that Registrar; and
(iii) the Principal Registrar,
and is not subject to the direction or control of any other person or body; and
(c) a Deputy Registrar is subject to the direction and control of—
(i) the Chief Judge;
(ii) any other Judge authorized by the Chief Judge to direct and control that Deputy Registrar;
(iii) the Principal Registrar; and
(iv) the Registrars,
and is not subject to the direction or control of any other person or body.
“(2) Without limiting the generality of sub-section (1), the Principal Registrar may, subject to this Act and to any directions of the Chief Judge, make arrangements as to the Registrars or Deputy Registrars who are to perform any functions or exercise any power under this Act (including any power referred to in sub-section 37a(1)), under the regulations or under the Rules of Court in particular matters or classes of matters.
“(3) The powers of the Principal Registrar in relation to the Registrars and the Deputy Registrars, and the powers of the Registrars in relation to the Deputy Registrars, shall be exercised subject to the directions of the Chief Judge.
“(4)
Where the Principal Registrar, a Registrar or a Deputy Registrar (in this
sub-section referred to as the ‘Registrar’) has failed to fulfil his duty as an
officer within the meaning of the
“(5) In this section, ‘Registrar’ means a Registrar of the Court.”.
“123. (1) The Judges, or a majority of them, may make Rules of Court not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts and, in particular—
(a) providing for and in relation to the attendance of witnesses;
(b) providing for and in relation to the manner of service of process of the Family Court or another court exercising jurisdiction under this Act, and for and in relation to dispensing with such service;
(c) providing for and in relation to the time and manner of institution of appeals in and to the Family Court;
(d) prescribing the duties of officers of the Family Court;
(e) making provision in relation to the exercise by officers of the Family Court of the powers conferred upon them by sub-section 37a(1) (other than in relation to the manner in which those powers are exercised by such officers) and in relation to the review by the Court pursuant to sub-section 37a(7) of exercises of those powers by such officers;
(f) prescribing the seals and stamps to be used in the Family Court and in any other court exercising jurisdiction under this Act;
(g) prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs;
(h) authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications for or relating to any matters before the court;
(j) authorizing an officer making an investigation referred to in paragraph (h) to take evidence on oath or affirmation and to obtain and receive in evidence a report from a court counsellor or welfare officer, and enabling the summoning of witnesses before an officer making such an investigation for the purpose of giving evidence or producing books and documents;
(k) regulating the procedure of a court upon receiving a report of an officer who has made an investigation referred to in paragraph (h);
(m) providing for and in relation to the procedure of a court exercising its powers under section 108 to deal with a person for contempt of the court;
(n) providing for and in relation to the making of applications for dissolution of marriage jointly by both parties to the marriage;
(o) providing for and in relation to the appointment, by the Attorney-General, of a guardian
ad litem for a party to proceedings under this Act;(p) providing for and in relation to the enforcement and execution of the decrees of the Family Court and other courts exercising jurisdiction under this Act;
(q) providing for and in relation to—
(i) the forfeiture of recognizances entered into in pursuance of requirements made under this Act; and
(ii) the recovery of any money that may be due to the Commonwealth under such recognizances or from any person who has become a surety under this Act;
(r) providing for and in relation to the attachment of moneys payable by the Commonwealth, a State, a Territory or the Administration of a Territory, or by an authority of the Commonwealth, of a State or of a Territory (other than moneys as to which it is provided by any law of the Commonwealth, of a State or of a Territory that they are not liable to attachment);
(s) providing for and in relation to—
(i) the attendance, by parties to proceedings under this Act, at conferences conducted by court counsellors or welfare officers; and
(ii) the use by courts exercising jurisdiction under this Act, and by officers of such courts, for the purposes of such proceedings, of reports prepared by court counsellors or welfare officers in relation to conferences attended by parties to the proceedings pursuant to Rules of Court made under sub-paragraph (i), being reports relating to the future conduct of the proceedings;
(t) prescribing matters incidental to the matters specified in the preceding paragraphs; and
(u) prescribing penalties not exceeding $500 for offences against the Rules of Court.
“(2)
Sections 48, 49 and 50 of the
“(3) In this section, ‘Judge’ means—
(a) a Judge of the Family Court of Australia; or
(b) where the Governor-General has made an arrangement with the Governor of a State under section 112 in relation to the performance, by a Judge of the Family Court of that State, of functions under this section—that Judge.
“124. (1) There shall be a Rules Advisory Committee consisting of such Judges of the Family Court of Australia, such Judges of Family Courts of States and such other persons as are appointed in accordance with this section.
“(2) The function of the Rules Advisory Committee is to provide to the Judges referred to in section 123 such advice in relation to the making of Rules of Court as is requested from time to time by those Judges.
“(3) Members of the Rules Advisory Committee shall be appointed by the Governor-General on the nomination of the Attorney-General made by him after consultation with the Chief Judge of the Family Court of Australia.
“(4) A Judge of a Family Court of a State shall not be appointed as a member of the Rules Advisory Committee unless the Governor-General has made an arrangement with the Governor of the State under section 112 in
relation to the performance, by that Judge, of functions as a member of the Rules Advisory Committee.
“(5) The members of the Rules Advisory Committee shall be paid such allowances in respect of expenses in connection with their duties as are prescribed.
“(6) A member of the Rules Advisory Committee may resign his office by writing signed by him and delivered to the Governor-General.
“125. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular—
(a) providing for and in relation to the service overseas, pursuant to any convention between Australia and another country, of any documents in proceedings under this Act;
(b) providing for and in relation to the transcription of proceedings under this Act and the making available of copies of transcripts of those proceedings;
(c) prescribing court fees to be payable in respect of proceedings under this Act;
(d) exempting persons included in particular classes of persons from liability to pay court fees prescribed under paragraph (c);
(e) providing for the refund of court fees prescribed under paragraph (c) that have been paid in particular circumstances;
(f) providing for an officer of a court exercising jurisdiction under this Act, a prescribed authority of the Commonwealth, of a State or of a Territory or the person for the time being holding a prescribed office under a law of the Commonwealth, of a State or of a Territory, in his or its discretion, to institute and prosecute proceedings, on behalf of the person entitled to moneys payable under a maintenance order under Part VIII, for the purpose of enforcing payment of those moneys; and
(g) providing for and in relation to priority as between the execution of orders made under the regulations, or under the repealed Act, for the attachment of moneys payable by the Commonwealth, a State, a Territory or the Administration of a Territory, or by an authority of the Commonwealth, of a State or of a Territory (other than moneys as to which it is provided by any law of the Commonwealth, of a State or of a Territory that they are not liable to attachment) and the execution of orders made in accordance with the
Maintenance Orders (Commonwealth Officers )Act 1966.
“(2) Court fees payable in pursuance of regulations made under this section in respect of proceedings in a Family Court of a State are payable to the State.”.
AMENDMENTS RELATING TO RULES OF COURT AND REGULATIONS
Provision amended | Amendment |
Sub-section 4 (4)....................... |
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Section 17.................................. |
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Sub-section 31 (2).................... |
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Sub-section 34 (2).................... | Add at the end “by the Rules of Court”. |
Sub-section 37 (2).................... |
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Sub-section 37 (3a).................. |
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Sub-section 38 (1).................... | Add at the end “and the Rules of Court”. |
Sub-section 38 (3).................... | Insert “or Rules of Court” after “regulations”. |
Paragraph 39 (5) (d)................. |
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Paragraph 39 (6) (d)................. |
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Sub-section 40 (7).................... |
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Sub-section 44 (1).................... |
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Sub-section 44 (1b).................. |
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Paragraph 64 (1a) (b)............... |
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Sub-section 67 (2).................... | Omit “The regulations”, substitute “The Rules of Court”. |
Paragraph 79 (8) (a) | Omit “the regulations”, substitute “the Rules of Court”. |
Paragraph 79a (1c) (a)............ | Omit “the regulations”, substitute “the Rules of Court”. |
Paragraph 83 (1) (b)................. | Omit “the regulations”, substitute “the Rules of Court”. |
Paragraph 84 (1) (a)................. |
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Sub-section 86 (1).................... | Insert “by the Rules of Court” after “prescribed”. |
Sub-section 87 (7).................... | Insert “by the Rules of Court” after “prescribed”. |
Paragraph 87 (11) (b)............... | Omit “the regulations”, substitute “the Rules of Court”. |
Sub-section 94 (1a).................. |
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Sub-section 96 (1a).................. |
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Sub-section 97 (1).................... |
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Section 98.................................. |
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Section 98a............................... |
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Sub-section 105 (1).................. |
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Sub-section 108 (2).................. |
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Section 112................................ |
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Provision amended | Amendment |
Sub-section 117 (2)................... | Insert “and the Rules of Court” after “sub-section (2a)”. |
Sub-section 117b (1)................. | Omit “the regulations”, substitute “the Rules of Court”. |
Paragraph 117b (2) (a).............. | Omit “the regulations”, substitute “the Rules of Court”. |
Sub-section 117c (1) |
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Paragraph 121 (11) (a).............. |
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1. No. 53, 1975, as amended. For previous amendments, see Nos. 63, 95 and 209, 1976; No. 102, 1977; No. 23, 1979; No. 2, 1982; and No. 67, 1983.
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