Family Law Amendment Act 1989

Overview

The Family Law Amendment Act 1989 was enacted to address gaps and problems in the Family Law Act 1975, particularly concerning custodial proceedings, child welfare, and enforcement of court orders. This Act was passed by the Queen, the Senate, and the House of Representatives of Australia, as evidenced by the formal enactment clause. One of its primary objectives was to strengthen the enforcement mechanisms for custody and access orders, ensuring better compliance and protection for children involved in family law matters. The Act introduced new provisions for issuing arrest warrants for individuals who contravene custody or access orders, imposed penalties for hindering the execution of such warrants, and outlined procedures for the courts to follow when dealing with these contraventions. Furthermore, the Act enhanced the powers of the court to require the provision of information relevant to the whereabouts of children, facilitating more effective enforcement of custody and access orders. By amending the Family Law Act 1975, this legislation aimed to improve the efficiency and effectiveness of family law proceedings, particularly in cases involving child custody and access.

Scope and Application

The Family Law Amendment Act 1989 amends the Family Law Act 1975, affecting families and individuals involved in family law proceedings, including parents, children, and those seeking enforcement of family law orders. The Act applies to Commonwealth, State, and Territory jurisdictions within Australia, and its provisions may also extend to international contexts where Australian family law orders are involved. The Act introduces various changes and clarifications to the Family Law Act 1975, including modifications to the enforcement of custody and access orders, the handling of contraventions of these orders, and the sanctions for non-compliance. The Act specifies penalties for hindering the execution of warrants, mandates notification procedures upon the delivery of a child, and outlines powers for courts to require the provision of information related to the whereabouts of a child. Additionally, the Act updates definitions and terminology, such as redefining "child agreement" to focus on child welfare and maintenance, and it introduces new sections for the variation of child agreements and warrants for the arrest of individuals contravening custody or access orders. The Act also revises the sanctions for failure to comply with orders, including imprisonment, fines, and recognizances, and it clarifies the process for dealing with contempt of court. The amendments also affect the roles of certain officials and bodies, such as the Family Law Council, and the enforcement of family law orders in overseas jurisdictions. The Act does not explicitly state any exclusions or thresholds for its application, suggesting that it broadly applies to all relevant cases within its jurisdictional scope.

Key Provisions

• The Family Law Amendment Act 1989 (C2004A03930) amends the Family Law Act 1975 in several significant ways, primarily focusing on custodial proceedings, child welfare, and enforcement mechanisms. Section 3 amends subsections (1), (2), (2a), and (3) of section 14 of the Principal Act by removing the term "magistrate" and adding a new subsection (6) that defines "Judge" to include a magistrate, Judicial Registrar, or Registrar. Section 5 amends section 64 by adding subsections (10d) to (10f), prohibiting the prevention or hindrance of warrant execution, and establishing penalties for such actions, including fines, recognizances, and imprisonment. It also modifies subsection (11a) to require notification to the court and potentially other parties upon the delivery of a child to the entitled person.
• Section 6 introduces a new section 64a, allowing courts to order individuals or Commonwealth bodies to provide information regarding the whereabouts of a child or another person believed to have possession of the child. This section outlines the conditions under which such orders can be made, including time limits and exceptions for certain Commonwealth positions.
• The Act also modifies child welfare provisions in registered child agreements. Section 7 amends the definition of "child agreement" in section 66zd to include provisions related to child welfare matters. Section 8 introduces section 66zda, which applies to child agreements that make provision for the maintenance of the child but are not enforceable as maintenance agreements. This section details how such agreements can be varied and the effect of the death of a party on these provisions.
• Section 9 renames Division 12 of Part VII of the Principal Act to "Obligations created by custody and access orders." Section 10 amends section 70 by adding section 112ad to the list of subsections it references and omitting subsections (5), (6), (7), and (8). Section 11 introduces a new section 70aa, detailing the issuance of warrants for the arrest of persons who contravene custody or access orders, including procedures for arrest, notification, and court proceedings.
• Section 12 omits subsection (4) from section 70c, and section 13 repeals section 70d and replaces it with a new section 70d, which grants police officers the power to arrest individuals without a warrant if they believe the individual has breached an injunction for personal protection by causing or threatening bodily harm.
• Section 14 amends section 107 by omitting subsection (3) and substituting it with a new subsection (2) that clarifies the scope of its application. Section 15 repeals section 108 entirely. Section 16 amends section 110 by expanding the definition of "maintenance order" to include determinations and modifying the definition of "enforcement authority" to include authorities from other countries or parts of other countries.
• Part XIIIa, inserted by section 17, outlines sanctions for failure to comply with orders and contempt of court. It includes provisions for the interpretation of terms, definitions of "contravene an order" and "reasonable excuse for contravening an order," and various sanctions for non-compliance, including imprisonment, fines, recognizances, and additional sentencing alternatives.
• Section 18 amends section 114 by omitting subsections (2), (5), and (6). Section 19 revises section 114aa, allowing police officers to arrest individuals without a warrant if they believe the individual has breached an injunction for personal protection. Section 20 amends section 114m by replacing "Public Service Board" with "Public Service Commissioner" in paragraph (2)(a). Section 21 modifies section 115 by replacing "Chairman" with "Chairperson" in subsections (4), (6), and (7), and ensures the continuity of the existing Chairman's office as Chairperson.
• Section 22 amends section 117a to adjust the conditions under which a court may award reparation for certain losses and expenses relating to children. Section 23 revises section 123 by replacing references to section 108 with references to section 112ap. Section 24 and the Schedule amend various references in Part XIVa from "Attorney-General" to "Minister."
• Overall, the Family Law Amendment Act 1989 introduces substantial changes aimed at strengthening the enforcement of custody and access orders, enhancing the protection of children's welfare, and providing clearer guidelines for the courts and law enforcement in handling family law matters.

Legal classification tags

Area of Law

Family Law

Instrument

Act

Concepts

Definitions & Interpretation

Offence Provisions

Enforcement Powers

Reporting & Disclosure Obligations