Family Law Amendment Act 2003 (Cth)

Case
No judgment structure available for this case.
Family Law Amendment Act 2003

No. 138, 2003

An Act to amend the Family Law Act 1975, and for related purposes

Contents

Family Law Amendment Act 2003

No. 138, 2003

An Act to amend the Family Law Act 1975, and for related purposes

[Assented to 17 December 2003]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Family Law Amendment Act 2003.

2Commencement
  1. (1)

    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.

Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

17 December 2003

2.

Schedule 1

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

3.

Schedule 2

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

4.

Schedule 3

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

5.

Schedule 4, item 1

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

6.

Schedule 4, item 2

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

7.

Schedule 4, item 3

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

8.

Schedule 4, items 4 and 5

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

9.

Schedule 4, items 6 to 8

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

10.

Schedule 4, items 9 to 13

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

11.

Schedule 4, items 14 to 19

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

12.

Schedule 4, items 20 to 22

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

13.

Schedule 4, items 23 and 24

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

14.

Schedule 4, items 25 to 27

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

14A. Schedule 4A

The day on which this Act receives the Royal Assent

17 December 2003

15.

Schedule 5, items 1A and 1

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

16.

Schedule 5, items 2 and 3

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

17.

Schedule 5, item 4

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

18.

Schedule 6

On the day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent

17 December 2004

19.

Schedule 7, items 1 to 19

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

20.

Schedule 7, item 20

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

21.

Schedule 7, items 21 to 24

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

22.

Schedule 7, items 25 and 26

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

23.

Schedule 7, items 27 to 29A

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

24.

Schedule 7, items 30 and 31

Immediately after the commencement of Schedule 2 to the Family Law Amendment Act 2000

27 December 2000

25.

Schedule 7, items 32 to 35

The 28th day after the day on which this Act receives the Royal Assent

14 January 2004

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

  1. (2)

    Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Removal of requirement to register parenting plans

Family Law Act 1975

1

Section 60C (table item 4)

Omit “and their registration in courts”.

2

Section 63A

Omit “and provides for their registration in courts”.

3

Section 63B

Repeal the section, substitute:

63BParents encouraged to reach agreement

The parents of a child are encouraged:

  1. (a)

    to agree about matters concerning the child; and

  2. (b)

    to take responsibility for their parenting arrangements and for resolving parental conflict; and

  3. (c)

    to use the legal system as a last resort rather than a first resort; and

  4. (d)

    to minimise the possibility of present and future conflict by using or reaching an agreement; and

  5. (e)

    in reaching their agreement, to regard the best interests of the child as the paramount consideration.

Note: Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.

4

At the end of section 63C

Add:

  1. (6)

    A registered parenting plan is a parenting plan:

    1. (a)

      that was registered in a court under section 63E as in force at any time before the commencement of the Family Law Amendment Act 2003; and

    2. (b)

      that continued to be registered immediately before the commencement of the Family Law Amendment Act 2003.

5

Section 63D

Repeal the section, substitute:

63DParenting plan may be varied or revoked by further written agreement

A parenting plan, other than a plan to which section 63DB applies, may be varied or revoked by agreement in writing between the parties to the plan.

6

Section 63DA

Repeal the section, substitute:

63DAExplanation by person advising or assisting in the making of a parenting plan

If a person who is:

  1. (a)

    a family and child counsellor; or

  2. (b)

    a family and child mediator; or

  3. (c)

    a legal practitioner;

gives advice or assistance to people in connection with the making by them of a parenting plan, the person must explain to them, in language likely to be readily understood by them, the availability of programs to help people who experience difficulties in complying with a parenting plan.

7

After section 63DA

Insert:

63DBRegistered parenting plans

Application of section

  1. (1)

    This section applies to a registered parenting plan.

Saving of registered parenting plan

  1. (2)

    A registered parenting plan continues in force until revoked in accordance with section 63E, or set aside, varied or discharged as referred to in section 63H.

No variation of registered parenting plan

  1. (3)

    A registered parenting plan cannot be varied.

Revocation of registered parenting plan

  1. (4)

    Subject to subsection (5), a registered parenting plan may be revoked by agreement in writing between the parties to the plan.

Registration of revocation required

  1. (5)

    An agreement revoking a registered parenting plan:

    1. (a)

      may, subject to the applicable Rules of Court, be registered, in a court having jurisdiction under this Part, under section 63E; and

    2. (b)

      does not have effect to revoke the plan until it is so registered.

8

Section 63E

Repeal the section, substitute:

63ERegistration of a revocation of a registered parenting plan

  1. (1)

    This section applies to a registered parenting plan.

  2. (2)

    To apply for registration of an agreement (revocation agreement) revoking a registered parenting plan:

    1. (a)

      an application for registration of the revocation agreement must be lodged in accordance with the applicable Rules of Court; and

    2. (b)

      the application must be accompanied by:

      1. (i)

        a copy of the revocation agreement; and

      2. (ii)

        the information required by the applicable Rules of Court; and

      3. (iii)

        a statement, in relation to each party, that is to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement and that is signed by the practitioner who provided that advice.

  3. (3)

    The court may register the revocation agreement if it considers it appropriate to do so having regard to the best interests of the child to whom the agreement relates. In determining whether it is appropriate to register the revocation agreement, the court:

    1. (a)

      must have regard to the information accompanying the application for registration; and

    2. (b)

      may, but is not required to, have regard to all or any of the matters set out in subsection 68F(2).

9

Subsection 63F(1)

Repeal the subsection, substitute:

Application of section

  1. (1)

    This section applies to a registered parenting plan that contains child welfare provisions.

10

Subsection 63G(1)

Repeal the subsection, substitute:

  1. (1)

    This section applies if:

    1. (a)

      a registered parenting plan contains child maintenance provisions; and

    2. (b)

      the plan is not a maintenance agreement or, if it is a maintenance agreement, the child concerned is not a child of the relevant marriage.

11

Before subsection 63H(1)

Insert:

  1. (1A)

    This section applies to a registered parenting plan.

12

Subsection 63H(1)

Omit “a parenting plan is registered under section 63E”, substitute “the plan was registered”.

13

Section 68P (subparagraph (b)(iv) of the definition of Division 11 contact order)

Omit “parenting plan registered in a court under section 63E”, substitute “registered parenting plan within the meaning of subsection 63C(6)”.

14

Section 70NB (paragraph (e) of the definition of order under this Act affecting children)

Omit “parenting plan registered in a court under section 63E”, substitute “registered parenting plan within the meaning of subsection 63C(6)”.

15

Paragraph 70Q(2)(a)

Repeal the paragraph, substitute:

  1. (a)

    that is a registered parenting plan within the meaning of subsection 63C(6); and

Schedule 2Use of audio links, video links etc.Part 1Amendments

Family Law Act 1975

1

Subsection 4(1)

Insert:

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

2

Subsection 4(1)

Insert:

split court has the meaning given by subsection 27(2).

3

Subsection 4(1)

Insert:

video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places.

4

Section 27

Repeal the section, substitute:

27Place of sitting

  1. (1)

    Sittings of the Court must be held from time to time as required and the Court may sit at any place in Australia.

  2. (2)

    The Court, in respect of proceedings, may be constituted by 2 or more Judges sitting at the same time, but in different places in Australia, using video link, audio link or other appropriate means to facilitate the Court sitting (split court).

    Note: Section 21B provides for the Chief Judge to make arrangements for the constitution of the Court for particular matters.

  3. (3)

    For the purpose of determining which law to apply in proceedings in which a split court is sitting, the Court is taken to be sitting at the place at which the presiding Judge is sitting.

5

Subsection 93A(2)

Omit “may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct.”, substitute:

may be given:

  1. (a)

    by affidavit; or

  2. (b)

    by oral examination before the Family Court or a Judge; or

  3. (c)

    as provided for in Division 2 of Part XI.

6

Before section 97

Insert:

Division 1—General matters concerning procedure and evidence

7

At the end of Part XI

Add:

Division 2—Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.

102CTestimony

  1. (1)

    The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means.

    Note: See also section 102F.

  2. (2)

    The testimony must be given on oath or affirmation unless:

    1. (a)

      the person giving the testimony is in a foreign country; and

    2. (b)

      either:

      1. (i)

        the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceedings; or

      2. (ii)

        the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings; and

    3. (c)

      the court or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

  3. (3)

    If the testimony is given otherwise than on oath or affirmation, the court or a Judge must give the testimony such weight as the court or the Judge thinks fit in the circumstances.

  4. (4)

    The power conferred on the court or a Judge by subsection (1) may be exercised:

    1. (a)

      on the application of a party to the proceedings concerned; or

    2. (b)

      on the court’s own initiative or on the Judge’s own initiative, as the case may be.

  5. (5)

    This section applies whether the person giving testimony is in or outside Australia, but does not allow testimony to be given by a person who is in New Zealand.

    Note: See the Evidence and Procedure (New Zealand) Act 1994.

102DAppearance of persons

  1. (1)

    The court or a Judge may, for the purposes of any proceedings, direct or allow a person to appear before the court or the Judge by way of video link, audio link or other appropriate means.

    Note: See also section 102F.

  2. (2)

    The power conferred on the court or a Judge by subsection (1) may be exercised:

    1. (a)

      on the application of a party to the proceedings concerned; or

    2. (b)

      on the court’s own initiative or on the Judge’s own initiative, as the case may be.

  3. (3)

    This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

    Note: See the Evidence and Procedure (New Zealand) Act 1994.

102EMaking of submissions

  1. (1)

    The court or a Judge may, for the purposes of any proceedings, direct or allow a person to make a submission to the court or the Judge by way of video link, audio link or other appropriate means.

    Note: See also section 102F.

  2. (2)

    The power conferred on the court or a Judge by subsection (1) may be exercised:

    1. (a)

      on the application of a party to the proceedings concerned; or

    2. (b)

      on the court’s own initiative or on the Judge’s own initiative, as the case may be.

  3. (3)

    This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.

    Note: See the Evidence and Procedure (New Zealand) Act 1994.

102FConditions for use of links

Video link

  1. (1)

    The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to a video link unless the court or the Judge is satisfied that the following conditions are met in relation to the video link:

    1. (a)

      the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see and hear the person (the remote person) who is:

      1. (i)

        giving the testimony; or

      2. (ii)

        appearing; or

      3. (iii)

        making the submission;

    as the case may be, by way of the video link;

    1. (b)

      the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom;

    2. (c)

      such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the video link;

    3. (d)

      such other conditions (if any) as are imposed by the court or a Judge.

  2. (2)

    The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

    1. (a)

      the form of the video link; and

    2. (b)

      the equipment, or class of equipment, used to establish the link; and

    3. (c)

      the layout of cameras; and

    4. (d)

      the standard of transmission; and

    5. (e)

      the speed of transmission; and

    6. (f)

      the quality of communication.

Audio link

  1. (3)

    The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is satisfied that the following conditions are met in relation to the audio link:

    1. (a)

      the courtroom is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom to hear the person (the remote person) who is:

      1. (i)

        giving the testimony; or

      2. (ii)

        appearing; or

      3. (iii)

        making the submission;

    as the case may be, by way of the audio link;

    1. (b)

      the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court or the Judge is sitting;

    2. (c)

      such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the audio link;

    3. (d)

      such other conditions (if any) as are imposed by the court or a Judge.

  2. (4)

    The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

    1. (a)

      the form of the audio link; and

    2. (b)

      the equipment, or class of equipment, used to establish the audio link; and

    3. (c)

      the standard of transmission; and

    4. (d)

      the speed of transmission; and

    5. (e)

      the quality of communication.

Other appropriate means

  1. (5)

    The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to appropriate means other than video link or audio link unless the court or the Judge is satisfied that the following conditions are met in relation to that means:

    1. (a)

      the conditions (if any) as are prescribed by the applicable Rules of Court in relation to that other appropriate means;

    2. (b)

      such other conditions (if any) as are imposed by the court or the Judge.

Eligible persons

  1. (6)

    For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court or the Judge considers should be treated as eligible persons for the purposes of the proceedings.

Meaning of courtroom

  1. (7)

    In this section:

courtroom means:

  1. (a)

    in relation to a Judge or a court that is not a split court—the courtroom or other place where the Judge or court is sitting; or

  2. (b)

    in relation to a split court—each of the courtrooms or places where the Judges of the split court are sitting.

102GPutting documents to a person

  1. (1)

    This section applies if, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Division, it is necessary to put a document to the person.

  2. (2)

    A court (that is not a split court) or a Judge may direct or allow the document to be put to the person:

    1. (a)

      if the document is physically present in the courtroom or other place where the court or the Judge is sitting:

      1. (i)

        by causing a copy of the document to be transmitted to the place where the person is located; and

      2. (ii)

        by causing the transmitted copy to be put to the person; or

    2. (b)

      if the document is physically present in the place where the person is located:

      1. (i)

        by causing the document to be put to the person; and

      2. (ii)

        by causing a copy of the document to be transmitted to the courtroom or other place where the court or the Judge is sitting.

  3. (3)

    A split court may direct or allow the document to be put to the person:

    1. (a)

      if the document is physically present in a courtroom or other place where a Judge of the split court is sitting:

      1. (i)

        by causing a copy of the document to be transmitted to the place where the person is located; and

      2. (ii)

        by causing the transmitted copy to be put to the person; or

    2. (b)

      if the document is physically present in the place where the person is located:

      1. (i)

        by causing the document to be put to the person; and

      2. (ii)

        by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting.

102HPutting documents to a split court

  1. (1)

    If proceedings are before a split court and it is necessary or appropriate to put a document to the court, the court may direct or allow the document to be put to the court:

    1. (a)

      if the document is physically present in a courtroom or other place where a Judge of the split court is sitting:

      1. (i)

        by causing the document to be put to the Judge; and

      2. (ii)

        by causing a copy of the document to be transmitted to each courtroom or other place where the other Judge or Judges of the split court are sitting; and

      3. (iii)

        by causing a copy of the document to be transmitted to such other place where an eligible person is located as the court directs; or

    2. (b)

      if the document is not physically present in a courtroom or other place where a Judge of the split court is sitting:

      1. (i)

        by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting; and

      2. (ii)

        by causing a copy of the document to be transmitted to such other place where an eligible person is located as the court directs.

Eligible persons

  1. (2)

    For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court considers should be treated as eligible persons for the purposes of the proceedings.

102JAdministration of oaths and affirmations

  1. (1)

    An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link, audio link or other appropriate means in accordance with this Division may be administered:

    1. (a)

      by means of the video link or audio link, as the case may be, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the court or the Judge is sitting; or

    2. (b)

      if the court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

  2. (2)

    In this section:

courtroom or other place where the court or the Judge is sitting, in relation to a split court, means the courtroom or other place where the presiding Judge of the split court is sitting.

102KExpenses

  1. (1)

    The court or a Judge may make such orders as the court or the Judge thinks just for the payment of expenses, including the court’s expenses, incurred in connection with:

    1. (a)

      the giving of testimony by video link, audio link or other appropriate means in accordance with this Division; or

    2. (b)

      the appearance of a person by video link, audio link or other appropriate means in accordance with this Division; or

    3. (c)

      the making of submissions by video link, audio link or other appropriate means in accordance with this Division; or

    4. (d)

      the court sitting as a split court in accordance with this Division and Division 3.

  2. (2)

    Subsection (1) has effect subject to the regulations.

102LNew Zealand proceedings

This Division does not affect the operation of the Evidence and Procedure (New Zealand) Act 1994.

Division 3—Split court

102MDetermination that there is to be a split court

  1. (1)

    If proceedings are to be heard and determined by 2 or more Judges, then a directing Judge may determine:

    1. (a)

      that the Family Court is to be a split court; and

    2. (b)

      which form of electronic communication is to be used to facilitate the proceedings.

  2. (2)

    In subsection (1):

directing Judge means:

  1. (a)

    the Chief Justice; or

  2. (b)

    the Presiding Judge in respect of the proceedings.

electronic communication means:

  1. (a)

    video link; or

  2. (b)

    audio link; or

  3. (c)

    other appropriate means of communication.

102NConditions for split court

Conditions to be satisfied before direction under section 102M may be given

  1. (1)

    A direction must not be made under subsection 102M(1) in respect of facilitating the sitting of a split court by a form of electronic communication unless the directing Judge is satisfied:

    1. (a)

      that each courtroom is equipped with facilities that enable eligible persons present in the courtroom to communicate with eligible persons present in the other courtrooms:

      1. (i)

        using the particular form of electronic communication; and

      2. (ii)

        as required by the proceedings before the court; and

    2. (b)

      that such conditions of a kind referred to in section 102F (if any) as are prescribed by the Rules of Court in relation to the particular form of electronic communication are met.

Judges may impose own conditions

  1. (2)

    Each Judge of the split court may, in relation to the Judge’s courtroom, impose such other conditions in respect of the form of electronic communication to be used to facilitate the split court as the Judge considers appropriate.

Eligible persons

  1. (3)

    For the purposes of the application of this section to particular proceedings, eligible persons are such persons as a Judge of the split court considers should be treated as eligible persons for the purposes of the proceedings as facilitated in the Judge’s courtroom.

  2. (4)

    In this section:

communicate with, in relation to eligible persons, means:

  1. (a)

    in the case of video link—seeing and hearing the eligible persons; and

  2. (b)

    in the case of audio link—hearing the eligible persons; and

  3. (c)

    in the case of other appropriate means of communication—as provided for in the applicable Rules of Court.

courtroom means the courtroom or other place where a Judge of the split court is sitting.

electronic communication means:

  1. (a)

    video link; or

  2. (b)

    audio link; or

  3. (c)

    other appropriate means of communication.

8

After paragraph 123(1)(m)

Insert:

  1. (ma)

    for the purposes of Divisions 2 and 3 of Part XI, providing for the conditions relating to the use of video links, audio links and other appropriate means of communication; and

Part 2Application of amendments

9

Application of amendments

(1) The amendments made by Part 1 of this Schedule, other than the split court amendments, apply in relation to proceedings instituted in the court before, on or after the commencement of this item.

(2) The split court amendments made by Part 1 of this Schedule apply in relation to proceedings instituted in the Family Court after the commencement of this item.

(3) In this item:

electronic communication means:

  1. (a)

    video link; or

  2. (b)

    audio link; or

  3. (c)

    other appropriate means of communication.

split court amendments means the amendments that relate to the use of electronic communication to facilitate:

  1. (a)

    proceedings being heard by a split court; and

  2. (b)

    a split court:

    1. (i)

      hearing testimony; or

    2. (ii)

      taking submissions; or

    3. (iii)

      have persons appear before it; or

    4. (iv)

      having a submission put to a person or to the court.

Schedule 3Management of the Family CourtPart 1Amendments

Family Law Act 1975

1

Subsection 4(1)

Insert:

Chief Executive Officer means the Chief Executive Officer of the Family Court.

Note: The Chief Executive Officer is appointed under section 38C. A person is appointed to act as the Chief Executive Officer under section 38M.

2

Subsection 4(1) (paragraph (a) of the definition of court counsellor)

Omit “Principal Director of Court Counselling, a Director of Court Counselling or another”, substitute “Principal Mediator, a Manager Mediation, a mediator or a”.

3

Subsection 4(1) (definition of Registrar)

Repeal the definition, substitute:

Registrar means:

  1. (a)

    in relation to the Family Court— the Principal Registrar, a Registrar, or a Deputy Registrar of the Court; and

  2. (b)

    in relation to a court other than the Family Court—the principal legal officer of the court or any other appropriate officer of the court.

4

Subsection 4(1) (definition of Registry Manager)

Repeal the definition, substitute:

Registry Manager, except in Subdivision C of Division 8 of Part VII and section 67Z, means:

  1. (a)

    in relation to the Family Court— the Registry Manager of a Registry of the Court; and

  2. (b)

    in relation to a court other than the Family Court—the principal officer of the court or any other appropriate officer of the court.

5

Paragraph 14C(3)(b)

Omit “Principal Director of Court Counselling of the Family Court”, substitute “Registry Manager”.

6

Subsection 15(2)

Omit “Principal Director of Court Counselling of the Family Court”, substitute “Registry Manager”.

7

Subsections 16(1) and (2)

Omit “Principal Director of Court Counselling of the Family Court”, substitute “Registry Manager”.

8

Section 20

Insert:

Principal Registrar means the Principal Registrar of the Court.

9

Paragraph 38N(1)(c)

Repeal the paragraph, substitute:

  1. (c)

    such Registry Managers of the Court as are necessary;

10

Paragraph 38N(1)(d)

Omit “Directors of Court Counselling and other”.

11

Paragraph 38N(1)(da)

Repeal the paragraph, substitute:

  1. (da)

    a Principal Mediator;

  2. (daa)

    such Managers Mediation as are necessary;

12

Paragraph 38N(1)(db)

Omit “Directors of Mediation and other”.

13

Subparagraph 44(1B)(a)(ii)

Omit “Principal Director of Court Counselling of the Family Court”, substitute “Principal Mediator”.

14

Subsection 56(1)

Omit “Registrar”, substitute “Registry Manager”.

15

Subsection 56(2)

Omit “Registrar” (wherever occurring), substitute “Registry Manager”.

16

Subsection 62C(2)

Omit “Principal Director of Court Counselling of the Family Court”, substitute “Registry Manager”.

17

Subsection 62E(2)

Omit “Principal Director of Court Counselling of the Family Court”, substitute “Registry Manager”.

18

Section 67H (definition of Registrar)

Repeal the definition.

19

Section 67H

Insert:

Registry Manager means:

  1. (a)

    in relation to the Family Court—the Registry Manager of the Registry of the Court; and

  2. (b)

    in relation to the Family Court of Western Australia—the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and

  3. (c)

    in relation to any other court—the principal officer of the court.

20

Paragraphs 67J(1)(a) and (b)

Omit “Registrar”, substitute “Registry Manager”.

21

Subsection 67P(1)

Omit “Registrar” (wherever occurring), substitute “Registry Manager”.

22

Paragraph 67Y(2)(a)

Omit “Registrar”, substitute “Registry Manager”.

23

Subsection 67Z(3)

Omit “Registrar”, substitute “Registry Manager”.

24

Subsection 67Z(4) (definition of Registrar)

Repeal the definition.

25

Subsection 67Z(4)

Insert:

Registry Manager means:

  1. (a)

    in relation to the Family Court—the Registry Manager of the Registry of the Court; and

  2. (b)

    in relation to the Family Court of Western Australia—the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and

  3. (c)

    in relation to any other court—the principal officer of that court.

26

Subparagraph 68R(4)(b)(iv)

Repeal the subparagraph, substitute:

  1. (iv)

    if the family violence order was made or last varied by the Family Court—the Registry Manager of the Registry of the Court; and

  2. (iva)

    if subparagraph (iv) does not apply—the Registrar, Principal Officer or any other appropriate officer of the court; and

27

Subsection 70M(2)

Omit “Registrar”, substitute “Registry Manager”.

28

Subsection 70M(4)

Omit “Registrar”, substitute “Registry Manager”.

Part 2Regulations

29

Regulations

(1) The Governor‑General may make regulations dealing with matters of a transitional or saving nature arising out of the enactment of this Schedule.

(2) Despite subsection 48(2) of the Acts Interpretation Act 1901, regulations made for the purposes of this item may be expressed to take effect from a date before the regulations are notified in the Gazette.

Schedule 4Parenting compliance regime

Family Law Act 1975

1

After section 65L

Insert:

65LACourt may order attendance at a post‑separation parenting program

  1. (1)

    In proceedings for a parenting order, the court may also make an order in respect of any party to the proceedings as follows:

    1. (a)

      directing the party or each party to attend before a provider so that the provider can make an initial assessment as to the suitability of the party concerned to attend a program;

    2. (b)

      if a party so attending before a provider is assessed by the provider to be suitable to attend a program or a part of a program and the provider nominates a particular program for the party to attend—directing the party to attend that program or that part of that program.

  2. (2)

    In deciding whether to make a particular order under subsection (1), a court must regard the best interests of the child as the paramount consideration.

    Note: Division 10 deals with how a court determines a child’s best interests.

  3. (3)

    In this section:

post‑separation parenting program or program means a program that:

  1. (a)

    is designed (including by providing counselling services or by teaching techniques to resolve disputes) to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities; and

  2. (b)

    is provided by a provider; and

  3. (c)

    consists of lectures, discussions (including group discussions) or other activities.

post‑separation parenting program provider orprovider means a provider of a program that is included in a list of providers compiled by the Attorney‑General.

2

Paragraph 65T(1)(b)

Omit “section 112AD”, substitute “Division 13A”.

3

Section 70NB (definition of appropriate post‑separation parenting program or appropriate program)

Repeal the definition.

4

Section 70NB (paragraph (c) of the definition of order under this Act affecting children)

Repeal the paragraph, substitute:

  1. (c)

    an undertaking given to, and accepted by, the court:

    1. (i)

      that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (ea); or

    2. (ii)

      that relates to a bond referred to in paragraph (f); or

5

Section 70NB (paragraph (d) of the definition of order under this Act affecting children)

Repeal the paragraph, substitute:

  1. (d)

    a subpoena issued under the applicable Rules of Court:

    1. (i)

      that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (ea); or

    2. (ii)

      that relates to a bond referred to in paragraph (f);

being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or

6

Section 70NB (after paragraph (e) of the definition of order under this Act affecting children)

Insert:

  1. (ea)

    a community service order made under paragraph 70NJ(3)(a); or

7

Section 70NB (paragraph (b) of the definition of post‑separation parenting program or program)

Repeal the paragraph, substitute:

  1. (b)

    is provided by a provider; and

8

Section 70NB

Insert:

post‑separation parenting program provider orprovider means a provider of a program that is included in a list of providers compiled by the Attorney‑General.

9

Section 70NB (definition of primary order)

Repeal the definition, substitute:

primary order means an order under this Act affecting children and includes such order as varied.

10

Paragraph 70NF(1)(a)

Omit “an order under this Act affecting children (the primary order)”, substitute “a primary order”.

11

Paragraph 70NF(1)(c)

Repeal the paragraph, substitute:

  1. (c)

    either subsection (1A) or (1B) applies;

12

After subsection 70NF(1)

Insert:

  1. (1A)

    For the purposes of paragraph (1)(c), this subsection applies if no court has previously:

    1. (a)

      made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    2. (b)

      under paragraph 70NG(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

  2. (1B)

    For the purposes of paragraph (1)(c), this subsection applies if:

    1. (a)

      a court has previously:

      1. (i)

        made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

      2. (ii)

        under paragraph 70NG(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

    2. (b)

      the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.

13

Subsection 70NF(2)

Omit “subparagraph (1)(c)(i)”, substitute “subsection (1A)”.

14

Subparagraphs 70NG(1)(a)(i) and (ii)

Repeal the subparagraphs, substitute:

  1. (i)

    directing the person or each person to attend before a provider so that the provider can make an initial assessment as to the suitability of the person concerned to attend a program;

  2. (ii)

    if a person so attending before a provider is assessed by the provider to be suitable to attend a program or a part of a program and the provider nominates a particular program for the person to attend—directing the person to attend that program or that part of that program;

15

Paragraph 70NG(1)(b)

After “contact”, insert “or residence”.

16

After paragraph 70NG(1)(b)

Insert:

  1. (ba)

    make any other order varying the order so contravened;

17

Subsection 70NG(3)

Omit “the provider of a program for assessment, or is to attend a program, the court must cause the provider of the program”, substitute “a provider for assessment, the court must cause the provider”.

18

Section 70NIA

Repeal the section, substitute:

70NIACourt may make further orders in relation to attendance at program

The court may make such orders as it considers appropriate, other than the orders referred to in subsection 70NJ(3), in respect of a person, if:

  1. (a)

    it appears to the court that the person has not attended before a provider that the person was ordered to attend before; or

  2. (b)

    it appears to the court that the person has not attended a program or a part of a program that the person was ordered to attend; or

  3. (c)

    the person was assessed as unsuitable to attend a program.

19

Paragraph 70NIB(a)

Omit “programs”, substitute “program providers”.

Note: The heading to section 70NIB is altered by omitting “programs” and substituting “program providers”.

20

Paragraph 70NJ(1)(a)

Omit “an order under this Act affecting children (the primary order)”, substitute “a primary order”.

21

Paragraph 70NJ(1)(c)

Repeal the paragraph, substitute:

  1. (c)

    either subsection (1A) or (1B) applies.

22

After subsection 70NJ(1)

Insert:

  1. (1A)

    For the purposes of paragraph (1)(c), this subsection applies if:

    1. (a)

      no court has previously:

      1. (i)

        made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

      2. (ii)

        under paragraph 70NG(1)(c), adjourned proceedings in respect of contravention by the person of the primary order; and

    2. (b)

      the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

  2. (1B)

    For the purposes of paragraph (1)(c), this subsection applies if a court has previously:

    1. (a)

      made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    2. (b)

      under paragraph 70NG(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

23

After paragraph 70NJ(5)(a)

Insert:

  1. (ab)

    the person who contravened the parenting order did so after having refused or failed to attend before a provider that the person was ordered to attend before;

24

Paragraph 70NJ(5)(b)

Omit “appropriate”.

25

Subsection 70NK(1)

Repeal the subsection, substitute:

  1. (1)

    Subject to this section, if, under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to make a community service order in respect of a person convicted of an offence against the law of the State or Territory, a court exercising jurisdiction in the State or Territory may, under paragraph 70NJ(3)(a) make a community service order.

26

Subsection 70NO(9)

Repeal the subsection.

27

Section 70NQ

Repeal the section, substitute:

70NQArrangements with States and Territories for carrying out of sentences and orders

An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Subdivision.

Schedule 4ASetting aside financial agreementsPart 1Amendments

Family Law Act 1975

  1. 1

    Subsection 4(1) (after paragraph (eaa) of the definition of matrimonial cause)

    Insert:

    1. (eab)

      third party proceedings (as defined in section 4A) to set aside a financial agreement; or

2

After section 4

Insert:

4AThird party proceedings to set aside financial agreement

  1. (1)

    For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings means proceedings between:

    1. (a)

      either or both of the parties to a financial agreement; and

    2. (b)

      a creditor or a government body acting in the interests of a creditor;

being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(aa).

  1. (2)

    In this section:

creditor means:

  1. (a)

    a creditor of either of the parties to the financial agreement; or

  2. (b)

    a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of either of the parties to the financial agreement.

government body means:

  1. (a)

    the Commonwealth, a State or a Territory; or

  2. (b)

    an official or authority of the Commonwealth, a State or a Territory.

3

After paragraph 90K(1)(a)

Insert:

  1. (aa)

    either party to the agreement entered into the agreement:

    1. (i)

      for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

    2. (ii)

      with reckless disregard of the interests of a creditor or creditors of the party; or

4

After subsection 90K(1)

Insert:

  1. (1A)

    For the purposes of paragraph (1)(aa), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

5

At the end of section 90K

Add:

  1. (3)

    A court may, on an application by a person who was a party to the financial agreement that has been set aside, 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 financial agreement and any other interested persons.

  2. (4)

    An order under subsection (1) or (3) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

  3. (5)

    If a party to proceedings under this section dies before the proceedings are completed:

    1. (a)

      the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and

    2. (b)

      if the court is of the opinion:

      1. (i)

        that it would have exercised its powers under this section if the deceased party had not died; and

      2. (ii)

        that it is still appropriate to exercise those powers;

    the court may make any order that it could have made under subsection (1) or (3); and

    1. (c)

      an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

  4. (6)

    The court must not make an order under this section if the order would:

    1. (a)

      result in the acquisition of property from a person otherwise than on just terms; and

    2. (b)

      be invalid because of paragraph 51(xxxi) of the Constitution.

For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.

Part 2Application of amendments

6

Application of amendments

The amendments made by this Schedule apply to financial agreements made at any time, whether before or after the commencement of this Schedule. However, the amendments do not apply to proceedings that were instituted before the commencement of this Schedule.

Schedule 5Other amendments relating to financial agreements

Family Law Act 1975

1A

After subsection 90C(2)

Insert:

  1. (2A)

    For the avoidance of doubt, a financial agreement under this section may be made before or after the marriage has broken down.

1

Subsection 90F(1)

Repeal the subsection, substitute:

  1. (1)

    No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) applies.

  2. (1A)

    This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.

2

Subparagraphs 90G(1)(b)(ii), (iii) and (iv)

Repeal the subparagraphs, substitute:

  1. (ii)

    the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and

3

Subparagraphs 90J(2)(b)(ii), (iii) and (iv)

Repeal the subparagraphs, substitute:

  1. (ii)

    the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and

4

Section 90L

Repeal the section, substitute:

90LFinancial and other agreements etc. not liable to duty

None of the following is subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory:

  1. (a)

    a financial agreement;

  2. (b)

    a termination agreement;

  3. (c)

    a deed or other instrument executed by a person for the purposes of, or in accordance with, an order or financial agreement made under this Part.

Schedule 6Orders and injunctions binding third partiesPart 1Amendments

Family Law Act 1975

1

After section 90

Insert:

Part VIIIAA—Orders and injunctions binding third parties

Division 1—Preliminary

Subdivision A—Scope of this Part

90AAObject of this Part

The object of this Part is to allow the court, in relation to the property of a party to a marriage, to:

  1. (a)

    make an order under section 79 or 114; or

  2. (b)

    grant an injunction under section 114;

that is directed to, or alters the rights, liabilities or property interests of a third party.

90ABDefinitions

In this Part:

marriage includes a void marriage.

third party, in relation to a marriage, means a person who is not a party to the marriage.

90ACThis Part overrides other laws, trust deeds etc.

  1. (1)

    This Part has effect despite anything to the contrary in any of the following (whether made before or after the commencement of this Part):

    1. (a)

      any other law (whether written or unwritten) of the Commonwealth, a State or Territory;

    2. (b)

      anything in a trust deed or other instrument.

  2. (2)

    Without limiting subsection (1), nothing done in compliance with this Part by a third party in relation to a marriage is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).

90ADExtended meaning of matrimonial cause and property

  1. (1)

    For the purposes of this Part, a debt owed by a party to a marriage is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4.

  2. (2)

    For the purposes of paragraph 114(1)(e), property includes a debt owed by a party to a marriage.

90ADAOther provisions of this Act not affected by this Part

This Part does not affect the operation of any other provision of this Act.

Example: Paragraph 90AE(3)(e) and subsection 90AE(4) do not limit the operation of any other provisions of this Act that require or permit the court to take matters into account in making an order in proceedings under section 79.

Division 2—Orders under section 79

90AECourt may make an order under section 79 binding a third party

  1. (1)

    In proceedings under section 79, the court may make any of the following orders:

    1. (a)

      an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor;

    2. (b)

      an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt owed to the creditor;

    3. (c)

      an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made;

    4. (d)

      an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party.

  2. (2)

    In proceedings under section 79, the court may make any other order that:

    1. (a)

      directs a third party to do a thing in relation to the property of a party to the marriage; or

    2. (b)

      alters the rights, liabilities or property interests of a third party in relation to the marriage.

  3. (3)

    The court may only make an order under subsection (1) or (2) if:

    1. (a)

      the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

    2. (b)

      if the order concerns a debt of a party to the marriage—it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and

    3. (c)

      the third party has been accorded procedural fairness in relation to the making of the order; and

    4. (d)

      the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and

    5. (e)

      the court is satisfied that the order takes into account the matters mentioned in subsection (4).

  4. (4)

    The matters are as follows:

    1. (a)

      the taxation effect (if any) of the order on the parties to the marriage;

    2. (b)

      the taxation effect (if any) of the order on the third party;

    3. (c)

      the social security effect (if any) of the order on the parties to the marriage;

    4. (d)

      the third party’s administrative costs in relation to the order;

    5. (e)

      if the order concerns a debt of a party to the marriage—the capacity of a party to the marriage to repay the debt after the order is made;

      Note: See paragraph (3)(b) for requirements for making the order in these circumstances.

      Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.

    6. (f)

      the economic, legal or other capacity of the third party to comply with the order;

      Example: The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).

    7. (g)

      if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters—those matters;

      Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

    8. (h)

      any other matter that the court considers relevant.

Division 3—Orders or injunctions under section 114

90AFCourt may make an order or injunction under section 114 binding a third party

  1. (1)

    In proceedings under section 114, the court may:

    1. (a)

      make an order restraining a person from repossessing property of a party to a marriage; or

    2. (b)

      grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.

  2. (2)

    In proceedings under section 114, the court may make any other order, or grant any other injunction that:

    1. (a)

      directs a third party to do a thing in relation to the property of a party to the marriage; or

    2. (b)

      alters the rights, liabilities or property interests of a third party in relation to the marriage.

  3. (3)

    The court may only make an order or grant an injunction under subsection (1) or (2) if:

    1. (a)

      the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

    2. (b)

      if the order or injunction concerns a debt of a party to the marriage—it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

    3. (c)

      the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

    4. (d)

      for an injunction or order under subsection 114(1)—the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

    5. (e)

      for an injunction under subsection 114(3)—the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

    6. (f)

      the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

  4. (4)

    The matters are as follows:

    1. (a)

      the taxation effect (if any) of the order or injunction on the parties to the marriage;

    2. (b)

      the taxation effect (if any) of the order or injunction on the third party;

    3. (c)

      the social security effect (if any) of the order or injunction on the parties to the marriage;

    4. (d)

      the third party’s administrative costs in relation to the order or injunction;

    5. (e)

      if the order or injunction concerns a debt of a party to the marriage—the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;

      Note: See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.

      Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.

    6. (f)

      the economic, legal or other capacity of the third party to comply with the order or injunction;

      Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

    7. (g)

      if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters—those matters;

      Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

    8. (h)

      any other matter that the court considers relevant.

Division 4—Other matters

90AGOrders and injunctions binding on trustees

If an order or injunction binds a person in the capacity of trustee in relation to property, then the order or injunction is also binding (by force of this section) on any person who subsequently becomes the trustee.

90AHProtection for a third party

A third party in relation to a marriage is not liable for loss or damage suffered by any person because of things done (or not done) by the third party in good faith in reliance on an order or injunction made or granted by a court in accordance with this Part.

90AIService of documents on a third party

  1. (1)

    If a document is required or permitted to be served for the purposes of this Part on a third party in relation to a marriage, the document may be served in any of the ways in which a document may be served under the applicable Rules of Court.

  2. (2)

    Subsection (1) is in addition to any other method of service permitted by law.

90AJExpenses of third party

  1. (1)

    Subsection (2) applies if:

    1. (a)

      the court has made an order or granted an injunction in accordance with this Part in relation to a marriage; and

    2. (b)

      a third party in relation to the marriage has incurred expense as a necessary result of the order or injunction.

  2. (2)

    The court may make such order as it considers just for the payment of the reasonable expenses of the third party incurred as a necessary result of the order or injunction.

  3. (3)

    In deciding whether to make an order under subsection (2), subject to what the court considers just, the court must take into account the principle that the parties to the marriage should bear the reasonable expenses of the third party equally.

  4. (4)

    The regulations may provide, in situations where the court has not made an order under subsection (2):

    1. (a)

      for the charging by the third party of reasonable fees to cover the reasonable expenses of the third party incurred as a necessary result of the order or injunction; and

    2. (b)

      if such fees are charged—that each of the parties to the marriage is separately liable to pay the third party an amount equal to half of those fees; and

    3. (c)

      for conferring jurisdiction on a particular court or courts in relation to the collection or recovery of such fees.

90AKAcquisition of property

  1. (1)

    The court must not make an order or grant an injunction in accordance with this Part if the order or injunction would:

    1. (a)

      result in the acquisition of property from a person otherwise than on just terms; and

    2. (b)

      be invalid because of paragraph 51(xxxi) of the Constitution.

  2. (2)

    In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Part 2Application of amendments

2

Application of amendments

(1) Subject to this item, the amendments made by Part 1 of this Schedule apply to all marriages, including those that were dissolved before the commencement time.

(2) Subject to subitems (3) and (4), the amendments made by this Schedule do not apply to a marriage if a section 79 order, or a section 87 agreement, is in force in relation to the marriage at the commencement time.

(3) If a section 79 order that is in force at the commencement time is later set aside under paragraph 79A(1)(a), (b), (c) or (d) of the Family Law Act, then the amendments made by this Schedule apply to the marriage from the time the order is set aside.

(4) If an approval of a section 87 agreement that is in force at the commencement time is later revoked on a ground specified in paragraph 87(8)(a), (c) or (d) of the Family Law Act, then the amendments made by this Schedule apply to the marriage from the time the approval is revoked.

(5) In this item, unless the contrary intention appears:

commencement time means the time when this Schedule commences.

Family Law Act means the Family Law Act 1975.

marriage includes a void marriage.

section 79 order means an order (other than an interim order or a partial order) made under section 79 of the Family Law Act.

section 87 agreement means an agreement approved under section 87 of the Family Law Act.

Schedule 7Miscellaneous amendmentsPart 1Amendments

Family Law Act 1975

1

Subsection 4(1)

Insert:

child representative means a person who represents a child in proceedings under an appointment made under a court order under subsection 68L(2).

2

Section 17

Omit “applicable Rules of Court shall provide for the furnishing to persons proposing to institute proceedings under this Act (other than under Part VII), and in appropriate cases to their spouses, of documents setting out”, substitute “court must provide documents to persons proposing to institute proceedings under this Act (other than under Part VII), and in appropriate cases to their spouses, setting out”.

3

Subsection 19A(2)

Repeal the subsection, substitute:

  1. (2)

    The appropriate officer at the court must make arrangements for the dispute to be mediated.

4

Subsection 19B(1)

Omit “Subject to the standard Rules of Court, the”, substitute “The”.

5

Subsection 19B(3)

Omit “in accordance with the standard Rules of Court”.

6Subsection 19J(2)

Omit “standard Rules of Court must provide for persons who propose to institute proceedings under this Act, and (in appropriate cases) their spouses, and other interested persons, to be given”, substitute “court must provide to persons who propose to institute proceedings under this Act, and (in appropriate cases) their spouses, and other interested persons,”.

7

At the end of section 19N

Add:

  1. (3)

    Subsection (2) does not apply to the following:

    1. (a)

      an admission by an adult that indicates that a child has been abused or is at risk of abuse;

    2. (b)

      a disclosure by a child that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

  1. (4)

    In this section:

abuse, in relation to a child, means:

  1. (a)

    an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

  2. (b)

    a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.

child means a person who is under 18.

8

Subsection 34(2)

Repeal the subsection.

9

Subsection 37A(3)

Omit “Rules”, substitute “applicable Rules”.

10

Subsection 37A(4)

Omit “Rules”, substitute “applicable Rules”.

11

Subsection 37A(9)

Omit “Rules”, substitute “applicable Rules”.

12

Subsection 44(1B)

Omit “in the form prescribed by the applicable Rules of Court”.

13

At the end of section 62F

Add:

  1. (9)

    Subsection (8) does not apply to the following:

    1. (a)

      an admission by an adult that indicates that a child has been abused or is at risk of abuse;

    2. (b)

      a disclosure by a child that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

  1. (10)

    In this section:

abuse, in relation to a child, means:

  1. (a)

    an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

  2. (b)

    a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.

child means a person who is under 18.

14

Section 62H

Omit “applicable Rules of Court must provide for people proposing to institute proceedings under this Part in relation to children, and in appropriate cases to other persons who may be interested in the care, welfare and development of children, to be given”, substitute “court must provide to people proposing to institute proceedings under this Part in relation to children, and in appropriate cases to other persons who may be interested in the care, welfare and development of children,”.

15

Subparagraph 66S(1)(a)(ii)

Omit “under the applicable Rules of Court”.

16

Subsections 67W(1) and (2)

Repeal the subsections, substitute:

  1. (1)

    A recovery order remains in force for the period specified in the order or 12 months, whichever is the shorter period.

17

Subsection 68J(2)

Omit “, subject to the applicable Rules of Court,”.

18

Subsection 70NG(3)

Omit “, in accordance with the applicable Rules of Court,”.

19

At the end of section 70NI

Add:

  1. (2)

    Subsection (1) does not apply to the following:

    1. (a)

      an admission by an adult that indicates that a child has been abused or is at risk of abuse;

    2. (b)

      a disclosure by a child that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

  1. (3)

    In this section:

abuse, in relation to a child, means:

  1. (a)

    an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

  2. (b)

    a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.

child means a person who is under 18.

20

Subsection 70NJ(4)

Omit “section 70NM”, substitute “section 70NL”.

21

Subsection 94(2A)

Omit “, in accordance with the standard Rules of Court,”.

22

Subsection 94(2A) (note)

Repeal the note.

23

Subsection 94AAA(7)

Omit “, in accordance with the standard Rules of Court,”.

24

Subsection 97(1A)

Omit “Judge,”, substitute “Judge, Judicial Registrar, Registrar,”.

25

After subsection 106B(4)

Insert:

  1. (4A)

    In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1).

26

Subsection 107(2)

Repeal the subsection, substitute:

  1. (2)

    This section does not affect the operation of:

    1. (a)

      Division 13A of Part VII; or

    2. (b)

      Part XIIIA; or

    3. (c)

      Part XIIIB.

27

Paragraph 112AD(2)(b)

After “sentence”, insert “by order”.

28

Paragraph 112AG(1)(a)

After “sentence”, insert “by order”.

29

Subsection 117(2)

Omit “subsection (2A)”, substitute “subsections (2A), (4) and (5)”.

29A

At the end of section 117

Add:

  1. (3)

    To avoid doubt, in proceedings in which a child representative has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the child representative in respect of the proceedings.

  2. (4)

    However, in proceedings in which a child representative has been appointed, if:

    1. (a)

      a party to the proceedings has received legal aid in respect of the proceedings; or

    2. (b)

      the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the child representative;

the court must not make an order under subsection (2) against that party in relation to the costs of the child representative.

  1. (5)

    In considering what order (if any) should be made under subsection (2) in proceedings in which a child representative has been appointed, the court must disregard the fact that the child representative is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.

30

Paragraphs 117A(1)(a) and (c)

Omit “section 112AD”, substitute “Division 13A of Part VII”.

31

Subsection 117C(2A)

Repeal the subsection.

32

Paragraph 121(9)(da)

Omit “the display of a notice in the premises of a court that lists”, substitute “the publication by the court of lists of”.

33

At the end of subsection 121(9)

Add:

  1. ; or (g)

    publication of accounts of proceedings, where those accounts have been approved by the court.

34

Paragraph 123(1)(q)

Omit “recognizances” (wherever occurring), substitute “bonds and recognizances”.

Part 2Application of amendments

35

Application of amendments

(1) The amendments made by items 7, 13 and 19 of Part 1 of this Schedule apply to admissions or disclosures made after the commencement of this item.

(2) Items 29 and 29A apply to proceedings instituted in the court after the commencement of this item.

[Minister’s second reading speech made in—

House of Representatives on 12 February 2003

Senate on 20 August 2003]

(5/03)

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0