Family Law Reform Act 1995 (Cth)
PART 1—PRELIMINARY
Section | |
1. | Short title etc. |
2. | Commencement |
3. | Amendment of title |
4. | Interpretation |
5. | Repeal of Part II and substitution of new Part: |
PART II—COUNSELLING ORGANISATIONS AND MEDIATION ORGANISATIONS | |
| |
| |
| |
| |
| |
|
|
TABLE OF PROVISIONS—
Section | |
| |
| |
| |
| |
| |
6. | Omission of heading to Part III and substitution of new heading |
7. | Repeal of section 14 and substitution of new sections and headings: |
| |
| |
| |
| |
| |
| |
| |
| |
| |
8. | Notice seeking counselling |
9. | Repeal of section 16A and substitution of new sections: |
| |
| |
| |
10. | Provision of certain documents |
11. | Repeal of section 18 |
12. | Oath or affirmation of secrecy |
13. | Omission of headings to Part IIIA and Division 1 of that Part and substitution of new headings |
14. | Request for mediation—request made through court |
15. | Insertion of new section: |
| |
16. | Court may refer matters for mediation |
17. | Insertion of new section: |
| |
18. | Repeal of section 19C |
19. | Omission of heading to Division 2 of Part IIIA and substitution of new heading |
20. | Omission of heading to Division 3 of Part IIIA and substitution of new heading |
21. | Repeal of section 19H |
TABLE OF PROVISIONS—
Section | |
22. | Advice about mediation and arbitration |
23. | Oath or affirmation by court mediator or community mediator |
24. | Protection of mediators and arbitrators |
25. | Insertion of new Division: |
| |
| |
| |
26. | Powers of Judicial Registrars |
27. | Delegation of powers to Registrars |
28. | Principles to be applied by courts |
29. | Institution of proceedings |
30. | Decree absolute where children |
31. | Repeal of Part VII and substitution of new Part: |
PART VII—CHILDREN | |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
TABLE OF PROVISIONS—
Section | |
| Reports by family and child counsellors and welfare officers |
| Provision of certain documents |
| What this Division does |
| Parents encouraged to reach agreement |
| Meaning of “parenting plan" and related terms |
| Parenting plan may not be varied, but may be revoked, by further agreement |
| Registration in a court |
| Child welfare provisions of registered parenting plans |
| Child maintenance provisions of registered parenting plans—where not enforceable as maintenance agreements |
| Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans |
| What this Division does |
| Meaning of “parenting order” and related terms |
| Parenting orders may be made in favour of parents or other persons |
| What this Division does |
| Division does not apply to child maintenance orders |
| Who may apply for a parenting order |
| Court’s power to make parenting order |
| Child’s best interests paramount consideration in making a parenting order |
| General requirements for counselling before parenting order made |
| Special conditions for making residence order or specific issues order by consent in favour of non-parent |
| Children who are 18 or over or who have married or entered de facto relationships |
| Effect of adoption on parenting order |
| What happens when parenting order that is or includes residence order does not make provision in relation to death of parent with whom child lives |
| Counsellors may be required to supervise or assist compliance with parenting orders |
| General obligations created by residence order |
| General obligations created by contact order |
| General obligations created by specific issues orders that confer responsibility for a child’s care, welfare and development |
| Court may issue warrant for arrest of alleged offender |
| Situation to which Subdivision applies |
| Arrested person to be brought before a court |
| Obligation of court—where application before it to deal with contravention |
TABLE OF PROVISIONS—
Section | |
| Obligation of court—where no application before it, but application before another court, to deal with contravention |
| Obligation of court—where no application before any court to deal with contravention |
| Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b) |
| Interpretation |
| Obligations if residence order, contact order or care order has been made |
| Obligations if proceedings for the making of residence order, contact order or. care order are pending |
| Obligations of owners etc. of aircraft and vessels if residence order, contact order or care order made |
| Obligations of owners etc. of aircraft and vessels if proceedings for the making of residence order, contact order or care order are pending |
| General provisions applicable to sections 65ZA and 65ZB |
| State or Territory laws stopping children leaving Australia not affected |
| What this Division does |
| Objects |
| Principles—parents have primary duty to maintain |
| Principles—when step-parents have a duty to maintain |
| Child maintenance order not to be made etc. if application for administrative assessment of child support could be made |
| Who may apply for a child maintenance order |
| Court’s power to make child maintenance order |
| Approach to be taken in proceedings for child maintenance order |
| Matters to be taken into account in considering financial support necessary for maintenance of child |
| Matters to be taken into account in determining contribution that should be made by party etc. |
| Children who are 18 or over |
| When step-parents have a duty to maintain |
| Determining financial contribution of step-parent |
| General powers of court |
| Urgent child maintenance orders |
| Specification in orders of payments etc. for child maintenance purposes |
| Modification of child maintenance orders |
| Effect of child turning 18 |
TABLE OF PROVISIONS—
Section | |
| Effect of death of child, person liable to pay or person entitled to receive |
| Effect of adoption, marriage or entering into a de facto relationship |
| Subdivision does not affect recovery of arrears |
| What this Division does |
| Father liable to contribute towards maintenance and expenses of mother |
| Matters to be taken into account in proceedings under Subdivision |
| Powers of court in proceedings under Subdivision |
| Urgent orders |
| Who may institute proceedings |
| Time limit for institution of proceedings |
| Interpretation |
| Meaning of “location order” and “Commonwealth information order” |
| Who may apply for a location order |
| Child’s best interests paramount consideration in making a location order |
| Provisions about location orders, other than Commonwealth information orders |
| Provisions about Commonwealth information orders |
| Information provided under location order not to be disclosed except to limited persons |
| Meaning of “recovery order" |
| How recovery orders authorise or direct people |
| How recovery orders to stop and search etc. name or describe vehicles, places etc. |
| Who may apply for a recovery order |
| Court’s power to make recovery order |
| Child’s best interests paramount consideration in making a recovery order |
| How long recovery order remains in force |
| Persons not to prevent or hinder taking of action under recovery order |
| Obligation to notify persons of child’s return |
| Where party to proceedings makes allegation of child abuse |
| Where member of the Court personnel, counsellor or mediator suspects child abuse etc. |
| No liability for notification under section 67Z or 67ZA |
| Orders relating to welfare of children |
| Orders for delivery of passports |
| What this Division does |
TABLE OF PROVISIONS—
Section | ||
| Injunctions | |
| Powers of arrest | |
| What this Division does | |
| Proceedings to which Subdivision applies | |
| How a court determines what is in a child’s best interests | |
| How the wishes of a child are expressed | |
| Children not required to express wishes | |
| Informing court of relevant family violence orders | |
| Court to consider risk of family violence | |
| Court orders for separate representation | |
| Order that child be made available for examination | |
| What this Division does | |
| Interpretation | |
| Purposes of Division | |
| Provisions about making an order for contact that is inconsistent with a family violence order | |
| Section 68R contact orders prevail over inconsistent family violence orders | |
| Variation etc. of Division 11 contact order by court making etc. family violence order | |
| What this Division does | |
| Certain proceedings to be instituted only under this Part | |
| Who may institute proceedings | |
| Institution of maintenance proceedings by authorised authority or person | |
| Child or parent to be present in Australia etc. | |
| Applicant may be in contempt | |
| Interpretation | |
| Jurisdiction of Family Court, State Family Courts and Northern Territory Supreme Court | |
| Jurisdiction of courts of summary jurisdiction | |
| Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory | |
| Jurisdiction in relation to transferred matters under other Commonwealth laws | |
| Jurisdiction is additional to other jurisdiction | |
| Transfer of proceedings from courts of summary jurisdiction in certain cases | |
TABLE OF PROVISIONS—
Section | |
| Presumptions of parentage arising from marriage |
| Presumption of paternity arising from cohabitation |
| Presumption of parentage arising from registration of birth |
| Presumptions of parentage arising from findings of courts |
| Presumption of paternity arising from acknowledgments |
| Rebuttal of presumptions etc. |
| Evidence of parentage |
| Orders for carrying out of parentage testing procedures |
| Orders associated with parentage testing orders |
| Orders directed to persons 18 or over |
| Orders directed to children under 18 |
| No liability if parent etc. consents |
| Regulations about carrying out, and reporting on, parentage testing procedures |
| Reports of information obtained may be received in evidence |
| Parentage testing for purposes of international maintenance agreements |
| Extension of Part to the States |
| Unless declaration in force, Part’s extension to a State has effect subject to modifications |
| Application of Part in, and in relation to, Territories |
| Additional application of Part |
| Additional jurisdiction of courts |
| Child welfare laws not affected |
| What this Division does |
| Interpretation |
| General registration of orders made under law of prescribed State |
| Registration of orders in a particular State |
| Effect of registration |
| Interpretation |
| Registration of orders |
| Effect of registration—general |
| Effect of registration on exercise of jurisdiction |
| Cancellation of registration if residence order, contact order or care order made |
| Relationship between Australian orders and registered overseas child orders |
| Registrar to send documents etc. to overseas jurisdiction |
| Regulations may deal with sending Australian orders etc. to overseas jurisdiction |
TABLE OF PROVISIONS
Section | |
| |
| |
32. | Setting aside of orders altering property interests |
33. | Registered maintenance agreements |
34. | Operation of maintenance agreements entered into in substitution for rights under Act |
35. | Intervention by Attorney-General |
36. | Intervention by other persons |
37. | Intervention in child abuse cases |
38. | Leave to appeal needed in some cases |
39. | Restrictions on examination of children |
40. | Insertion of new section: |
| |
41. | Inter-State enforcement of child bearing expenses order |
42. | Convention on the Civil Aspects of International Child Abduction |
43. | Insertion of new section: |
| |
44. | Interpretation |
45. | Meaning of “contravene an order” |
46. | Meaning of “reasonable excuse for contravening an order” |
47. | Sanctions for failure to comply with orders |
48. | Recognizances |
49. | Repeal of section 112AJ |
50. | Repeal of section 112AL |
51. | Operation of State and Territory laws |
52. | Repeal of section 114M and substitution of new section: |
| |
53. | Family Law Council |
54. | Costs |
55. | Reparation for certain losses and expenses relating to children |
56. | Offers of settlement |
57. | Rules of Court |
58. | Regulations |
59. | Transitional matters |
SCHEDULE 1
TRANSITIONAL PROVISIONS RELATING TO THE REPEAL AND RE-MAKING OF PART II OF THE FAMILY LAW ACT 1975 AND TO THE AMENDMENTS OF PARTS III AND IIIA OF THAT ACT
SCHEDULE 2
TRANSITIONAL PROVISIONS RELATING TO THE REPEAL AND RE-MAKING OF PART VII OF THE FAMILY LAW ACT 1975
[
The Parliament of Australia enacts;
1.(1) This Act may be cited as theFamily Law Reform Act 1995.
(a) by omitting “Part IIIA” from the definition of “appropriate officer” in subsection (1) and substituting “Division 5 of Part III”;
(b) by omitting “60A(1) or (2)” from the definition of “child of a marriage” in subsection (1) and substituting “60F(1) or (2)”;
(c) by omitting “60A(3)” from the definition of “child of a marriage” in subsection (1) and substituting “60F(3)”;
(d) by omitting “New Zealand or any other” from the definition of “prescribed overseas jurisdiction” in subsection (1) and substituting “any”;
(e) by omitting from subsection (1) the definitions of “approved”, “approved mediator” and “marriage counsellor”;
(f) by omitting from subsection (1) the definition of “financial or custodial proceedings”;
(g) by inserting in subsection (1) the following definitions:“
‘approved counselling organisation’ has the meaning given by subsection 12(1);
‘approved mediation organisation’ has the meaning given by subsection 12(2);
‘child counselling’ means counselling to:(a) discuss the care, welfare or development of a child; or
(b) discuss, and try to resolve, differences between persons that affect the care, welfare or development of a child;
‘community mediator’ means a person referred to in paragraph (b) of the definition of ‘family and child mediator’;
‘court mediator’ means a person referred to in paragraph (a) of the definition of ‘family and child mediator’;
‘family and child counselling’ means any of the following kinds of counselling:(a) marriage counselling;
(b) child counselling;
(c) counselling about any matter that arises out of proceedings under this Act and that involves:
(i) a parent or adoptive parent of a child; or
(ii) a child; or
(iii) a party to a marriage;
‘family and child counsellor' means:
(a) a court counsellor; or
(b) a person authorised by an approved counselling organisation to offer family and child counselling on behalf of the organisation; or
(c) a person authorised under the regulations to offer family and child counselling;
‘family and child mediation’ means mediation of any dispute that could be the subject of proceedings (other than prescribed proceedings) under this Act and that involves:
(a) a parent or adoptive parent of a child; or
(b) a child; or
(c) a party to a marriage;
‘family and child mediator’ means:
(a) a person approved as a mediator under regulations for the purposes of this paragraph; or
(b) a person authorised by an approved mediation organisation to offer family and child mediation on behalf of the organisation; or
(c) a person, other than a person mentioned in paragraph (a) or (b), who offers family and child mediation;
‘private mediator’ means a person referred to in paragraph (c) of the definition of ‘family and child mediator’;”;
“
‘child maintenance order’ has the meaning given by subsection 64B(5);
‘contact order’ has the meaning given by subsection 64B(4);
‘financial or Part VII proceedings’ means proceedings (being, unless the context otherwise requires, proceedings under this Act) of a kind referred to in any of paragraphs (c) to (eb) of the definition of ‘ matrimonial cause ’ in this subsection or proceedings under Part VII;
‘has’ , in relation to a residence order, a contact order or a specific issues order, has the meaning given by subsection 64B(8);
‘made in favour’ , in relation to a residence order, a contact order or a specific issues order, has the meaning given by subsection 64B(7);
‘parenting order’ has the meaning given by subsection 64B(1);
‘parenting plan’ has the meaning given by subsection 63C(1);
‘residence order’ has the meaning given by subsection 64B(3);
‘specific issues order’ has the meaning given by subsection 64B(6);”.
“
“
“11. This Part provides for:
(a) the approval of counselling organisations and mediation organisations (Division 2); and
(b) reporting by approved counselling organisations and approved mediation organisations (Division 3); and
(c) funding of approved counselling organisations and approved mediation organisations (Division 4).
“
“12.(1) An approved counselling organisation is an organisation in relation to which an approval under section 13A is in force.
“(2) An approved mediation organisation is an organisation in relation to which an approval under section 13B is in force.
“13. Subject to sections 13A and 13B, an organisation may be approved as:
(a) an approved counselling organisation; or
(b) an approved mediation organisation; or
(c) both an approved counselling organisation and an approved mediation organisation.
“13A.(1) A voluntary organisation may apply to the Minister for approval as a counselling organisation.
“(2) The Minister may, in writing, approve the organisation as a counselling organisation if, and only if, the Minister is satisfied that:
(a) the organisation is willing and able to engage in family and child counselling; and
(b) the whole, or a substantial part, of the organisation’s activities consist, or will consist, of family and child counselling.
“(3) If the Minister decides to refuse to approve the organisation, the Minister must give written notice of that decision to the organisation.
“13B.(1) A voluntary organisation may apply to the Minister for approval as a mediation organisation.
“(2) The Minister may, in writing, approve the organisation as a mediation organisation if, and only if, the Minister is satisfied that:
(a) the organisation is willing and able to engage in family and child mediation; and
(b) the whole, or a substantial part, of the organisation’s activities consist, or will consist, of family and child mediation.
“(3) If the Minister decides to refuse to approve the organisation, the Minister must give written notice of that decision to the organisation.
“13C.(1) An approval under section 13A is subject to such conditions (if any) as are specified in the instrument of approval.
“(2) An approval under section 13B is subject to:
(a) a condition that the organisation must comply with the requirements of the regulations when it engages in family and child mediation; and
(b) such other conditions (if any) as are specified in the instrument of approval.
“(3) If an approval is subject to conditions specified in the instrument of approval, the Minister may, from time to time, revoke or vary all or any of those conditions or add further conditions.
“(4) The Minister’s power to revoke, vary or add conditions must be exercised by notice in writing to the organisation concerned.
“13D.(1) The Minister may, at any time, revoke the approval of an organisation under section 13A if:
(a) the organisation has failed to comply with a condition of the approval; or
(b) the organisation has failed to comply with its obligations as an approved counselling organisation under section 13F; or
(c) a person authorised by the organisation to offer family and child counselling on behalf of the organisation has failed to comply with a requirement of this Act or a direction made by a court under this Act; or
(d) the Minister is no longer satisfied as mentioned in paragraph 13A(2)(b) in relation to the organisation; or
(e) the Minister is satisfied that the organisation is not adequately carrying out family and child counselling.
“(2) The Minister may, at any time, revoke the approval of an organisation under section 13B if:
(a) the organisation has failed to comply with a condition of the approval; or
(b) the organisation has failed to comply with its obligations as an approved mediation organisation under section 13F; or
(c) a person authorised by the organisation to offer family and child mediation on behalf of the organisation has failed to comply with a requirement of this Act or a direction made by a court under this Act; or
(d) the Minister is no longer satisfied as mentioned in paragraph 13B(2)(b) in relation to the organisation; or
(e) the Minister is satisfied that the organisation is not adequately carrying out family and child mediation.
“(3) The Minister’s power to revoke an approval must be exercised by notice in writing to the organisation concerned.
“13E. The Minister must publish annually, in such manner as the Minister thinks appropriate:
(a) a list of all approved counselling organisations; and
(b) a list of all approved mediation organisations.
“
“13F.(1) An approved counselling organisation must, in respect of each financial year, give the Minister:
(a) an audited financial statement of the receipts and payments of the organisation, in which receipts and payments in respect of its family and child counselling activities are shown separately from other receipts and payments; and
(b) a report on its family and child counselling activities, including information about the number of cases dealt with by the organisation during the year.
“(2) An approved mediation organisation must, in respect of each financial year, give the Minister:
(a) an audited financial statement of the receipts and payments of the organisation, in which receipts and payments in respect of its family and child mediation activities are shown separately from other receipts and payments; and
(b) a report on its family and child mediation activities, including information about the number of cases dealt with by the organisation during the year.
“(3) A report under subsection (1) or (2) in relation to a financial year must be given to the Minister by 30 September in the next financial year.
“13G.(1) The Minister may, in writing, exempt an organisation from complying with some or all of the requirements of section 13F if the Minister is satisfied that:
(a) it would be impracticable for the organisation to comply with those requirements; or
(b) it would be unduly onerous to require the organisation to comply with those requirements.
“(2) An exemption under subsection (1) has effect accordingly.
“
“13H.(1) The Minister may, from time to time, out of money appropriated by the Parliament for the purposes of this Part, grant to an approved counselling organisation or an approved mediation organisation such sums by way of financial assistance as the Minister determines.
“(2) A grant may be made on terms and conditions (if any) that the Minister thinks appropriate.”.
“
“
“14. The object of this Part is:
(a) to encourage people to use primary dispute resolution mechanisms (such as counselling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and
(b) to ensure that people have access to counselling:
(i) to improve relationships covered by this Act; and
(ii) to help them adjust to court orders under this Act.
“14A. An outline of this Part is set out below.
1 | |
• object of this Part | |
• outline of this Part | |
2 | |
| |
3 |
|
| |
4 | |
• parties to a marriage seeking counselling | |
• courts advising or directing people to attend counselling | |
• other matters related to counselling | |
5 | |
• requests for mediation and courts advising or directing parties to attend mediation | |
| |
| |
6 | |
• miscellaneous matters | |
“
“14B. In this Division:
(a) proceedings for a dissolution of marriage: or
(b) financial or Part VII proceedings instituted by a party to a subsisting marriage;
“14C.(1) A judge constituting the court in which Division 2 proceedings are being heard must consider, from time to time, the possibility of a reconciliation of the parties.
“(2) If, during the proceedings, the judge considers, from the evidence in the proceedings or the attitude of the parties, that there is a reasonable possibility of a reconciliation of the parties, the judge may:
(a) adjourn the proceedings to give the parties the opportunity to consider a reconciliation; or
(b) with the consent of the parties, interview them in chambers, with or without counsel, as the judge thinks proper, to assist in a possible reconciliation.
“(3) If the judge adjourns the proceedings under paragraph (2)(a), the judge may advise the parties:
(a) to make use of the services of a family and child counsellor to assist in a possible reconciliation; or
(b) to request the Principal Director of Court Counselling of the Family Court, or an appropriate officer of a Family Court of a State, to nominate some other suitable person or organisation to assist in considering a possible reconciliation.
“(4) If, after an adjournment under subsection (2), either of the parties requests that the proceedings resume, the judge must resume the proceedings as soon as practicable.
“14D. A legal practitioner representing a party to Division 2 proceedings must consider, from time to time, the possibility of a reconciliation of the parties.
“
“14E. In this Division:
(a) counselling services provided by family and child counsellors; and
(b) mediation services provided by family and child mediators; and
(c) arbitration services provided by approved arbitrators.
“14F. A court exercising jurisdiction in proceedings under this Act must consider whether or not to advise the parties to the proceedings about the primary dispute resolution methods that could be used to resolve any matter in dispute.
“14G. A legal practitioner acting in proceedings under this Act, or consulted by a person considering instituting such proceedings, must consider whether or not to advise the parties to the proceedings, or the person considering instituting proceedings, about the primary dispute resolution methods that could be used to resolve any matter in dispute.
“
“14H. Division 3 of Part VII contains provisions that deal with counselling in matters affecting children.”.
“16A.( 1) If a court makes an order or grants an injunction under section 114, the court must, if the court considers that it is in the interests of the parties or their children to do so, direct or advise either or both of the parties to attend upon a family and child counsellor.
“(2) Failure to comply with a direction or advice referred to in subsection (1) does not constitute a contempt of the court.
“16B.(1) If a court having jurisdiction under this Act considers that counselling may assist the parties to a marriage to improve their relationship to each other or to any of their children, it may advise the parties to attend upon a family and child counsellor or an approved counselling organisation.
“(2) If the court does so advise the parties, it may, if it considers it desirable to do so, adjourn any proceedings before it to enable attendance at counselling.
“16C.(1) In this section, counselling for marital breakdown is
counselling to assist the parties to a marriage and their children to adjust to the consequences of marital breakdown.
“(2) A court exercising jurisdiction in proceedings under this Act, other than Part VII, must consider whether or not to advise parties to the proceedings about counselling for marital breakdown available through courts exercising jurisdiction under this Act and through approved counselling organisations.
“(3) A legal practitioner acting in proceedings under this Act, other than Part VII, or consulted by a person considering instituting such proceedings, must consider whether or not to advise the parties to the proceedings, or the person considering instituting proceedings, about counselling for marital breakdown available through courts exercising jurisdiction under this Act and through approved counselling organisations.”.
“
"
“19AA. A person may at any time request a family and child mediator to mediate a dispute.”.
“19BA.(1) Subject to the regulations (if any), a court having jurisdiction under this Act must, if it considers it may help the parties to a dispute before it to resolve that dispute, advise the parties to seek the help of a family and child mediator.
“(2) If the court does so advise the parties, it may, if it considers it desirable to do so, adjourn any proceedings before it to enable attendance at mediation.”.
“
“
“about:
(a) the mediation or arbitration facilities (if any) available in the court and how those facilities are made available; and
(b) the mediation services provided by approved mediation organisations.”.
“
“19N.(1) This section applies to:
(a) a family and child counsellor; or
(b) a court mediator; or
(c) subject to the regulations, a community mediator or a private mediator; or
(d) a person nominated, or acting on behalf of an organisation nominated, for the purposes of paragraph 14C(3)(b) or subparagraph 44(1B)(a)(ii); or
(e) a person to whom a party to a marriage has been referred, for medical or other professional consultation, by a person referred to in paragraph (a), (b), (c) or (d).
“(2) Evidence of anything said, or any admission made, at a meeting or conference conducted by a person to whom this section applies while the person is acting as such a person is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.
“19P.(1) The regulations may prescribe requirements to be complied with by community mediators and private mediators in relation to the family and child mediation services they provide.
“(2) The regulations may prescribe penalties not exceeding 10 penalty units in respect of offences against regulations made for the purposes of subsection (1).
“19Q.(1) Subject to the regulations (if any), a family and child counsellor, or an approved counselling organisation, may advertise, at a Registry of the Family Court, the counselling services the counsellor or organisation provides.
“(2) Subject to the regulations (if any), a family and child mediator, or an approved mediation organisation, may advertise, at a Registry of the Family Court, the mediation services the mediator or organisation provides.
“(3) Subject to the regulations (if any), an approved arbitrator may advertise, at a Registry of the Family Court, the arbitration services the arbitrator provides.”.
(a) by omitting from subsection (1) all the words after “power to make” and substituting “an excluded child order (as defined in subsection (1A)).”;
(b) by inserting after subsection (1) the following subsection:
“(1A) An
(a) a residence order; or
(b) a contact order; or
(c) a specific issues order conferring responsibility for the long-term or day-to-day care, welfare and development of a child; or
(d) an order in relation to the welfare of a child;
other than an order until further order, an order made in undefended proceedings or an order made with the consent of all the parties to the proceedings.”.
“(d) an excluded child order (as defined in subsection (2A)).”;
“(2A) An
(a) a residence order; or
(b) a contact order; or
(c) a specific issues order conferring responsibility for the long-term or day-to-day care, welfare and development of a child; or
(d) an order in relation to the welfare of a child;
other than an order until further order, an order made in undefended proceedings or an order made with the consent of all the parties to the proceedings.”.
“(ca) the need to ensure safety from family violence; and”.
“(i) a family and child counsellor or an approved counselling organisation; or”;
(b) by omitting from subparagraph (1B)(a)(ii) and paragraph (1B)(b) “organization” and substituting “organisation”.
(a) by omitting from subparagraph (1)(b)(i) “welfare” and substituting “care, welfare and development”;
(b) by omitting from subsection (2) “welfare” (first occurring) and substituting “care, welfare and development”;
(c) by omitting from subsection (2) “court counsellor” and substituting “family and child counsellor”.
“
“
“
“60A. This Division contains:
(a) a statement of the object of this Part and the principles underlying it, and an outline of this Part (Subdivision B); and
(b) provisions relevant to the interpretation and application of this Part (Subdivision C); and
(c) provisions relevant to how this Act applies to certain children (Subdivision D).
Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12.
“
“60B.(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
“(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
“60C. An outline of this Part is set out below.
| |
• object of Part and principles underlying it, and outline of Part | |
• interpretation and application of this Part | |
• how this Act applies to certain children | |
Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12. | |
| |
• the concept of parental responsibility | |
| |
• counselling of people in relation to matters affecting children | |
• preparation of reports for use in proceedings relating to children under 18 | |
• provision of documents about counselling and welfare | |
| |
• what parenting plans are and their registration in courts | |
| |
• what parenting orders are | |
| |
• applying for and making parenting orders, other than child maintenance orders | |
• general obligations created by residence orders, contact orders and specific issues orders | |
• dealing with people who have been arrested | |
| |
| |
• objects and principles relevant to the making of child maintenance orders | |
• the relationship between Division 7 and the | |
• other aspects of courts’ powers in relation to child maintenance orders | |
• when child maintenance orders stop being in force | |
| |
| |
• orders for the location and recovery of children | |
• reporting of allegations of child abuse | |
• other orders about children | |
| |
• proceedings for injunctions in relation to children | |
| |
• separate representation of children | |
| |
• the relationship between certain contact orders etc. and family violence orders | |
| |
• jurisdiction of courts | |
• presumptions of parentage | |
• parentage evidence | |
• places and people to which this Part extends and applies | |
| |
• registration of State and Territory orders dealing with children | |
• registration of overseas orders dealing with children | |
• transmission of Australian orders to overseas jurisdictions | |
| |
• miscellaneous matters relating to children |
“
“60D.(1) In this Part:
(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
(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;
(a) artificial insemination; and
(b) the implantation of an embryo in the body of a woman;
(a) commencing:
(i) in a case where the mother:
(A) works in paid employment; and
(B) is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and
(C) stops working after being so advised and more than 2 months before the child is due to be born;
on the day on which she stops working; or
(ii) in any other case—2 months before the child is due to be born; and
(b) ending 3 months after the child’s birth;
(a) a person who, because he or she holds, or performs the duties of, a prescribed office of the Slate or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or
(b) a person authorised in writing by such a person for the purposes of this Part;
(a) a court counsellor; or
(b) a court mediator; or
(c) an approved arbitrator; or
(d) a welfare officer; or
(e) the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; or
(f) the Registrar or a Deputy Registrar of the Family Court of Western Australia;
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent;
(a) if the child is the subject of proceedings under this Part in a State or Territory—an officer of the State or Territory who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person; or
(b) if the child is not the subject of proceedings under this Part—an officer of the Stale or Territory in which the child is located or is believed to be located who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person;
(a) rules of professional conduct; and
(b) rules of professional etiquette; and
(c) a code of ethics; and
(d) standards of professional conduct;
(a) is not a parent of the child; and
(b) is or has been married to a parent of the child; and
(c) treats, or at any time during the marriage treated, the child as a member of the family formed with the parent.
“(2) For the purposes of this section, paragraphs 68F(2)(i) and (j) and section 68J, a person (the
(a) the first person is or has been married to, or in a de facto relationship with, the second person; or
(b) the first person is or has been a relative of the second person (as defined in subsection (3)); or
(c) an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force:
(i) a residence order, contact order or specific issues order that relates to a child who is either the first person or the second person and that is in favour of the other of those persons;
(ii) an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or
(d) an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force:
(i) an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons;
(ii) an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or
(e) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or
(f) the first person is or has been a member of the family of a child of the second person.
“(3) For the purposes of this section, a
(a) a father, mother, grandfather, grandmother, step-father or step-mother of the person; or
(b) a son, daughter, grandson, grand-daughter, step-son or step-daughter of the person; or
(c) a brother, sister, half-brother, half-sister, step-brother or step-sister of the person; or
(d) an uncle or aunt of the person; or
(e) a nephew or niece of the person; or
(f) a cousin of the person; or
(g) if the person is or was married—in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person’s spouse; or
(h) if the person is or was in a de facto relationship with another person—in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.
“60E. This Part applies in relation to a purported marriage that is void as if:
(a) the purported marriage were a marriage; and
(b) the parties to the purported marriage were husband and wife.
“
“60F.(1) A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children:
(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 who is, under subsection 60H(1), the child of the husband and wife.
“(2) A reference in this Act to a child of a marriage includes a reference to a child of:
(a) a marriage that has been dissolved or annulled, in Australia or elsewhere; or
(b) a marriage that has been terminated by the death of one party to the marriage.
“(3) A child of a marriage who is adopted by a person who, before the adoption, is not a prescribed adopting parent ceases to be a child of that marriage for the purposes of this Act.
“(4) The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:
(a) if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of the marriage for the purposes of this Act;
(b) in any other case—the child continues to be a child of the marriage for the purposes of this Act.
“60G.(1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
“(2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a) and of sections 61E and 65J.
Note: Division 10 deals with how a court determines a child's best interests.
“60H.(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and
(b) either of the following paragraphs apply:
(i) the procedure was carried out with their consent;
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;
then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.
“(2) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
“(3) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
“(4) If a person lives with another person as the husband or wife of the first-mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:
(a) they were married to each other; and
(b) neither person were married to any other person.
“(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
“
“61A. This Division deals with the concept of parental responsibility including, in particular:
(a) what parental responsibility is; and
(b) who has parental responsibility.
“61B. In this Part,
“61C.(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
“(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
“(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
“61D.(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
“(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
“61E.(1) This section applies if:
(a) a child is adopted; and
(b) immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.
“(2) The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.
‘
“62A. This Division deals with:
(a) the counselling of people in relation to matters affecting children; and
(b) the preparation of reports for use in proceedings relating to children who are under 18; and
(c) the provision of documents about counselling and welfare.
“62B.(1) In this section, counselling for Part VII orders is counselling to assist children and parties to proceedings under this Part to adjust to the consequences of orders under this Part.
“(2) A court exercising jurisdiction in proceedings under this Part must consider whether or not to advise parties to the proceedings about counselling for Part VII orders available through courts exercising jurisdiction under this Part and through approved counselling organisations.
“(3) A legal practitioner acting in proceedings under this Part, or consulted by a person considering commencing such proceedings, must consider whether or not to advise the parties to the proceedings, or the person considering commencing proceedings, about counselling for Part VII orders available through courts exercising jurisdiction under this Part and through approved counselling organisations.
“62C.(1) A party to proceedings under this Part, or a person representing a child under an order made under section 68L, may file in the Family Court or a Family Court of a State a notice stating that he or she wishes to have the assistance of the counselling facilities of that Court.
“(2) On the filing of the notice, the Principal Director of Court Counselling of the Family Court or an appropriate officer of the Family Court of the State, as the case may be, must arrange for parties to the proceedings (with or without the child) to be interviewed by a family and child counsellor or welfare officer to assess whether counselling is appropriate in all the circumstances, and if it is:
(a) to discuss the care, welfare and development of the child; and
(b) if there are differences between the parties in relation to matters affecting the care, welfare and development of the child, to try to resolve those differences.
“62D. A person may at any time request a family and child counsellor to provide counselling about a matter relating to a child.
“62E.(1) A parent of a child, a child or a party to proceedings under this Part may seek the assistance of the counselling facilities of the Family Court or a Family Court of a State.
“(2) The Principal Director of Court Counselling of the Family Court or an appropriate officer of the Family Court of the State, as the case may be, must, as far as practicable, make those facilities available.
“62F.(1) This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
“(2) The court may, at any stage of the proceedings, make an order directing the parties to the proceedings to attend a conference with a family and child counsellor or welfare officer:
(a) to discuss the care, welfare and development of the child; and
(b) if there are differences between the parties in relation to matters affecting the care, welfare and development of the child—to try to resolve those differences.
“(3) The court may make an order under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a person representing the child under an order made under section 68L.
“(4) The court may, in an order under subsection (2):
(a) fix a place and time for the conference to take place; or
(b) direct that the conference is to take place at a place and time to be fixed by a family and child counsellor or welfare officer.
“(5) If a person fails to attend a conference in respect of which the court has made an order under subsection (2), the counsellor or welfare officer must report the failure to the court.
“(6) On receiving a report under subsection (5), the court may give such further directions in relation to the conference as it considers appropriate.
“(7) The court may make further directions under subsection (6):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a person representing the child under an order made under section 68L.
“(8) Evidence of anything said, or of any admission made, at a conference that takes place pursuant to an order under subsection (2) is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by consent of the parties, to hear evidence.
“62G.(1) This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
“(2) The court may direct a family and child counsellor or welfare officer to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
“(3) If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.
“(4) A counsellor or welfare officer may include in a report prepared pursuant to a direction under subsection (2), in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
“(5) For the purpose of the preparation of a report pursuant to a direction under subsection (2), the court may make such orders, or give such further directions, as it considers appropriate, including orders or directions for the attendance on the counsellor or welfare officer of a party to the proceedings or of the child.
“(6) If a person fails to comply with an order or direction under subsection (5), the counsellor or welfare officer must report the failure to the court.
“(7) On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.
“(8) A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
“62H. The 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 documents setting out:
(a) the legal and possible social effects of the proposed proceedings; and
(b) the counselling and welfare facilities available within the Family Court and elsewhere.
“
“63A. This Division explains what parenting plans are and provides for their registration in courts.
“63B. The parents of a child are encouraged:
(a) to agree about matters concerning the child rather than seeking an order from a court; and
(b) in reaching their agreement, to regard the best interests of the child as the paramount consideration.
“63C.(1) A
(a) is in writing; and
(b) is or was made between the parents of a child; and
(c) deals with a matter or matters mentioned in subsection (2).
“(2) A parenting plan may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) contact between a child and another person or other persons;
(c) maintenance of a child;
(d) any other aspect of parental responsibility for a child.
“(3) An agreement may be a parenting plan:
(a) whether made before or after the commencement of this section; and
(b) whether made inside or outside Australia; and
(c) whether other persons as well as a child’s parents are also parties; and
(d) whether it deals with other matters as well as matters mentioned in subsection (2)
“(4) Provisions of a parenting plan that deal with any of the matters mentioned in paragraphs (2)(a), (b) and (d) are
“(5) Provisions of a parenting plan that deal with the matter mentioned in paragraph (2)(c)
“63D.(1) An agreement, in whatever form and however expressed, is not effective to vary a parenting plan for the purposes of this Act. An agreement purporting to vary a parenting plan cannot be registered under section 63E.
“(2) Subject to subsection (3), a parenting plan may be revoked by agreement in writing between the parties to the plan.
“(3) An agreement revoking a registered parenting plan:
(a) may, subject to the Rules of Court, be registered under section 63E as if it were a parenting plan; and
(b) does not have effect to revoke the plan until it is so registered.
“63E.(1) Subject to this section, a parenting plan may be registered in a court having jurisdiction under this Part.
“(2) To apply for registration of a parenting plan:
(a) an application for registration of the plan must be lodged in accordance with the Rules of Court; and
(b) the application must be accompanied by a copy of the plan, the information required by the Rules of Court, and:
(i) 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 plan and that is signed by the practitioner who provided that advice; or
(ii) a statement to the effect that the plan was developed after consultation with a family and child counsellor (as defined in section 4) and that is signed by the counsellor.
“(3) The court may register the plan if it considers it appropriate to do so having regard to the best interests of the child to which the plan relates. In determining whether it is appropriate to register the plan, the court:
(a) must have regard to the information accompanying the application for registration; and
(b) may, but is not required to, have regard to all or any of the matters set out in subsection 68F(2).
“(4) The Rules of Court:
(a) must prescribe what information is to accompany an application for registration of a parenting plan; and
(b) may prescribe other matters relating to the procedures for registration.
“63F.(1) This section applies if a parenting plan that contains child welfare provisions is registered in a court under section 63E.
“(2) The court may, by order, vary the child welfare provisions in the plan if it considers the variation is required in the best interests of a child.
“(3) The child welfare provisions have effect, subject to subsections (5) and (6), as if they were:
(a) to the extent they deal with the person or persons with whom the child is to live—a residence order made by the court; and
(b) to the extent they deal with contact between the child and another person or other persons—a contact order made by the court; and
(c) to the extent they deal with any other aspect of parental responsibility for the child—a specific issues order made by the court.
Note: Provisions of this Act relevant to the child welfare provisions having effect as provided in this subsection include:
(a) Subdivisions C, D and E of Division 6 of this Part (dealing with obligations created by residence orders, contact orders and specific issues orders); and
(b) Parts XIII and XIIIA (dealing generally with enforcement of orders and sanctions for contravening orders); and
(c) subsection 65D(2) (providing for discharge, variation, suspension and revival of parenting orders other than child maintenance orders); and
(d) other provisions of this Act (including subsections 64B(7) and (8)) that refer to parenting orders, or to residence orders, contact orders or specific issues orders.
“(4) If provisions of the plan have effect under subsection (3) as a court order, a person who is a party to the plan is taken (for example, for the purposes of section 65Y) to be a party to the proceedings in which the order was made.
“(5) Subsection (3) does not apply to the plan (whenever registered) to the extent (if at all) that the plan purports to determine that the child concerned is to live with a person who is not a parent of the child.
“(6) Even though the plan is registered, the court, or another court having jurisdiction under this Part, must not enforce the child welfare provisions if it considers that to do so would be contrary to the best interests of a child.
Note: Division 10 deals with how a court determines a child’s best interests.
“63G.(1) This section applies if:
(a) a parenting plan that contains child maintenance provisions is registered in a court under section 63E; and
(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.
“(2) The child maintenance provisions have effect, subject to subsections (3), (4) and (5), as if they were a child maintenance order made by the court.
Note: Provisions of this Act relevant to the child maintenance provisions having effect as a child maintenance order include:
(a) Parts XIII and XIIIA (dealing generally with enforcement of orders and sanctions for contravening orders); and
(b) section 66S (providing for discharge, variation, suspension and revival of child maintenance orders); and
(c) other provisions of this Act that refer to parenting orders, or to child maintenance orders.
“(3) Unless the plan provides otherwise, the child maintenance provisions (other than provisions for the periodic payment of maintenance) continue to operate in spite of the death of a party to the plan and operate in favour of, and are binding on, the legal personal representative of that party.
“(4) If the child maintenance provisions include provisions (the ‘
(a) the periodic provisions continue to operate, if the plan so provides, in spite of the death of a party to the plan who is liable to make the periodic payments, and are binding on the legal personal representative of that party; but
(b) the periodic provisions do not continue to operate, in spite of anything in the plan, after the death of the person entitled to receive the periodic payments.
“(5) The child maintenance provisions have no effect, and are not enforceable in any way, at any time when an application could properly be made under the
“(6) Subsection (5) has effect whether or not an application for administrative assessment of child support for the child has in fact been made by a party to the plan.
“70F. In this Subdivision:
(a) an interim order; or
(b) an order made in favour of a person where:
(i) the order was made on the application of the person; and
(ii) notice of making the application was not served on any other person; and
(iii) no other person appeared at the hearing of the application;
(a) that (however it is expressed) has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or
(b) that (however it is expressed) has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or
(c) an order varying or discharging an order of the kind referred to in paragraph (a) or (b), including an order of that kind made under this Act.
“70G. The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.
“70H. An overseas child order registered in a court under section 70G has the same force and effect as if it were an order made by that court under this Part.
“70J.(1) A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a residence order, a contact order or a care order in relation to the child concerned unless:
(a) each person with whom the child is supposed to live or have contact under the overseas order, or who has rights of custody or access in relation to the child concerned under the order, consents to the exercise of jurisdiction by the court in the proceedings; or
(b) the court is satisfied that there are substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings.
“(2) If a court exercises jurisdiction in proceedings for a residence order, a contact order or a care order in relation to a child who is the subject of an overseas child order, the court must not make a residence order, a contact order or a care order in relation to the child unless it is satisfied:
(a) that the welfare of the child is likely to be adversely affected if the order is not made; or
(b) that there has been such a change in the circumstances of the child since the making of the overseas child order that the residence order, contact order or care order ought to be made.
“70K. If a court:
(a) is aware that an overseas child order is registered under section 70G; and
(b) makes a residence order, a contact order or a care order in relation to the child concerned;
the court must cancel the registration of the overseas child order.
“70L.(1) In this section:
(a) a residence order, a contact order or a care order; or
(b) a State child order as defined in section 70B;
(a) with whom the child is supposed to live or have contact under the order; or
(b) who is responsible for the child’s day-to-day care, welfare and development under the order; or
(c) who has a right to custody of, or access to, the child under the order.
“(2) This section applies if:
(a) an Australian child order, whether made under this Part or another law, is in force under this Part in relation to a child; and
(b) an overseas child order, other than an excluded order, that relates to the child but that has a different effect from the Australian order has been registered under section 70G (whether before or after the making of the Australian child order) and its registration has not been cancelled.
“(3) A responsible person under the overseas child order may apply to a court having jurisdiction under this Part for the discharge of the Australian child order.
“(4) A responsible person under the Australian child order may apply to a court having jurisdiction under this Part for the cancellation of the registration of the overseas child order.
“(5) If an application is made under subsection (3) or (4), the court must:
(a) if a condition specified in subsection (6) is satisfied—cancel the registration of the overseas child order; or
(b) in any other case—discharge the Australian child order.
“(6) For the purposes of paragraph (5)(a), the conditions are:
(a) each responsible person under the overseas child order consents to the cancellation of the registration of the order; or
(b) the court is satisfied that there are substantial grounds for believing that the child’s welfare will be adversely affected if the overseas child order continues to operate in relation to the child; or
(c) the court is satisfied that there has been a change in the circumstances of the child since the overseas child order was made that makes it inappropriate for the order to continue to operate in relation to the child.
“
“70M.(1) This section applies if:
(a) a court in Australia makes, in relation to a child who is under 18, a residence order, a contact order or a specific issues order, or a State child order as defined in section 70B; and
(b) the order is enforceable in a prescribed overseas jurisdiction under provisions corresponding to Subdivision C.
“(2) A person referred to in subsection (3) may, in writing, request the Registrar of the court to send to an appropriate court or authority in the overseas jurisdiction the documents and information necessary for securing the enforcement of the order in the overseas jurisdiction.
“(3) A request under subsection (2) may be made by:
(a) a person with whom the child is supposed to live or have contact under the order; or
(b) a person who has a right to custody of, or of access to, the child under the order.
“(4) The Registrar of the court must comply with a request under subsection (2).
“70N. The regulations may make provision for and in relation to the sending to a prescribed overseas jurisdiction of copies of, and documents relating to, a residence order, a contact order or a specific issues order, or a State child order as defined in section 70B, that relates to a child to whom an overseas child order relates.
“
“70P. This Division deals with miscellaneous matters relating to children.
“70Q.(1) The following instruments are not 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:
(a) an instrument executed under, or for the purposes of, an order made under this Part;
(b) an eligible parenting plan that confers a benefit in relation to a child, to the extent to which it confers the benefit;
(c) an instrument executed under, or for the purposes of, an eligible parenting plan and that confers a benefit in relation to a child, to the extent to which it confers the benefit.
“(2) An
(a) the registration of which under section 63E is in force; and
(b) that is not a maintenance agreement, or, if it is a maintenance agreement, it relates to a child who is not a child of the marriage to which the maintenance agreement relates; and
(c) that:
(i) is made by the parties to a de facto relationship in connection with the breakdown of that relationship; or
(ii) relates to a child whose parents (being parties to the plan) were neither married to each other, nor living with each other in a de facto relationship, at the time of the child’s conception.
“(3) In this section, a reference to an instrument that
32. Section 79A of the Principal Act is amended:
(b) by omitting from paragraph (l)(d) “has the custody of the child” and substituting “has caring responsibility for the child (as defined in subsection (1AA))”;
“(1AA) For the purposes of paragraph (l)(d), a person has
(a) the person is a parent of the child with whom the child lives; or
(b) the person has a residence order in relation to the child; or
(c) the person has a specific issues order in relation to the child under which the person is responsible for the child’s long-term or day-to-day care, welfare and development.”.
“(b) any proceedings under this Act for or in relation to:
(i) a residence order, a contact order or a specific issues order; or
(ii) an order under section 67ZC.”.
“(b) a parent of the child with whom the child lives;
(ba) a person who has a residence order in relation to the child;
(bb) a person who has a specific issues order in relation to the child under which the person is responsible for the child’s long-term or day-to-day care, welfare and development;
(c) any other person responsible for the care, welfare or development of the child;”.
“
“102B. In any proceedings under this Act (other than prescribed proceedings), the court may, in accordance with the Rules of Court, get an assessor to help it in the hearing and determination of the proceedings, or any part of them or any matter arising under them.”.
“(2) Because of amendments of this Act made by the
(a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and
(b) a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child.
“(3) The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection.
“(4) For the purposes of the Convention:
(a) each of the parents of a child should, subject to any order of a court for the time being in force, be regarded as having custody of the child; and
(b) a person who has a residence order in relation to a child should be regarded as having custody of the child; and
(c) a person who, under a specific issues order, is responsible for the day-to-day care, welfare and development of a child should be regarded as having custody of the child; and
(d) a person who has a contact order in relation to a child should be regarded as having a right of access to the child.
Note: The references in paragraphs (b), (c) and (d) to residence orders, specific issues orders and contact orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).
“(5) Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child.
“(6) Expressions used in this section have the same meaning as they have in Part VII.”.
43. After section 111B of the Principal Act the following section is inserted:
“111C.(1) The regulations may make such provision as is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993.
“(2) The regulations do not come into force until the day on which the Convention enters into force for Australia.”.
44. Section 112AA of the Principal Act is amended:
(a) by omitting paragraph (a) of the definition of “court enforceable agreement” and substituting the following paragraph:“(a) a parenting plan registered in a court under section 63E; or”;
(b) by omitting “70C” from paragraph (b) of the definition of “order under this Act” and substituting “68B”;
(c) by omitting the definition of “access order”;
(d) by inserting:“
‘contact order’ means an order under this Act that provides for a person or persons to have contact with a child;”.
“(2) For the purposes of this Part:
(a) a residence order is taken to include a requirement that persons act in accordance with section 65M in relation to the order; and
(b) a contact order is taken to include a requirement that persons act in accordance with section 65N in relation to the order; and
(c) a specific issues order to which section 65P applies is taken to include a requirement that persons act in accordance with that section in relation to the order.”.
(a) by omitting from subsection (1) “and (3)” and substituting “, (3), (4) and (5)”;
(b) by omitting subsection (3) and substituting the following subsections:“(3) A person (the
‘respondent’ ) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if:(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of that person.
“(4) A person (the
‘respondent’ ) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have under the order if:(a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the deprivation of contact was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
“(5) A person (the ‘
respondent’ ) is taken to have had a reasonable excuse for contravening a specific issues order by acting contrary to section 65P if:(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”.
(a) by inserting in subsection (1) “other than a residence order, a contact order or a specific issues order,” after “order under this Act,”;
“(1A) If:
(a) a court with jurisdiction under this Act is satisfied that a person has contravened a residence order, a contact order or a specific issues order; and
(b) the person does not prove on the balance of probabilities that he or she had a reasonable excuse for contravening the order;
the court may, subject to subsection (5), by order, take any action specified in subsection (2) that the court thinks appropriate.”;
“(g) having regard to any deprivation of contact resulting from the contravention concerned, make a contact order in relation to a person and a child.”;
“(2A) A contact order referred to in paragraph (2)(g) is an order under Division 6 of Part VII and must be made in accordance with that Division. However, for the purposes of this Division, the order is taken to be an order under subsection (1).”;
(f) by omitting from paragraphs (5)(a) and (b) “court counsellor” and substituting “family and child counsellor”.
(a) by omitting from subsection (1) “70C, 70D” and substituting “68B, 68C”;
(b) by omitting from subsection (2) “70C” (wherever occurring) and substituting “68B”.
“114M.(1) The staff of the Institute are to be persons appointed or employed under the
“(2) The Director has all the powers of a Secretary under the
“(3) The Director may, on behalf of the Institute and with the approval of the Minister, engage persons to assist the Institute as consultants or otherwise.
“(4) The terms and conditions of engagement of persons under subsection (3) are as determined by the Director from time to time.”.
to have effect after that commencement as if it were an engagement under subsection 114M(3) of the Principal Act as in force after that commencement.
(a) by omitting from paragraphs (1)(a) and (1)(c) “removing a child from the possession of” and substituting “taking a child away from”;
(b) by omitting subparagraphs (1)(a)(i) and (ii) and substituting the following subparagraphs:
“(i) a residence order; or
(ii) a contact order;”;
(c) by omitting from paragraph (1)(b) “70A” and substituting “65Y or 65Z”;
(d) by omitting from paragraph (1)(d) “removed a child from the possession of” and substituting “taken a child away from”;
(e) by omitting from paragraph (1)(e) “restoring the child to the possession of the person entitled to that possession” and substituting “recovering the child and returning the child to a person”;
(f) by omitting from paragraph (1)(f) “restoring the child to the possession of the person entitled to that possession” and substituting “recovering the child and, if applicable, returning the child to a person”.
(a) by omitting from paragraph (1)(j) “court counsellor” and substituting “family and child counsellor”;
(b) by omitting from subparagraphs (1)(s)(i) and (ii) “court counsellors” and substituting “family and child counsellors”;
(c) by omitting from paragraph (1)(sa), subparagraph (1)(sd)(ii) and paragraph (1)(se) “approved mediators” and substituting “court mediators”;
(d) by omitting from subparagraph (1)(sd)(i) “an approved mediator” and substituting “a court mediator”.
(a) by omitting from paragraph (1)(ba) “mediators and arbitrators” and substituting “persons as court mediators and approved arbitrators”;
(b) by omitting from paragraph (1)(f) “maintenance order under Part VII or VIII” and substituting “child maintenance order under Part VII or a maintenance order under Part VIII”.
____________
SCHEDULE 1 Subsection 59(1)
TRANSITIONAL PROVISIONS RELATING TO THE REPEAL AND RE-MAKING OF PART II OF THE FAMILY LAW ACT 1975 AND TO THE AMENDMENTS OF PARTS III AND IIIA OF THAT ACT
(a) it were an approval of the organisation concerned as a counselling organisation under section 13A of the amended Act; and
(b) any conditions to which the approval was subject immediately before the Part II commencement were specified in an instrument of approval in relation to the organisation under section 13A of the amended Act.
commencement as if it were an application for approval under regulations made for the purposes of paragraph (a) of the definition of “family and child mediator” in subsection 4(1) of the amended Act.
___________
SCHEDULE 2 Subsection 59(2)
TRANSITIONAL PROVISIONS RELATING TO THE REPEAL AND RE-MAKING OF PART VII OF THE FAMILY LAW ACT 1975
1. In this Schedule:
“
(a) so far as it deals (expressly or impliedly) with the question of the person or persons with whom the child is to live—it were a residence order made under Part VII of the amended Act; and
(b) so far as it deals, expressly or impliedly, with other aspects of parental responsibility for the child—it were a specific issues order made under Part VII of the amended Act.
(a) so far as it deals (expressly or impliedly) with the question of the person or persons with whom the child is to live—it were a residence order made under Part VII of the amended Act; and
(b) so far as it deals (expressly or impliedly) with other aspects of parental responsibility for the child—it were a specific issues order made under Part VII of the amended Act.
(a) an agreement that has effect as that kind of order under the old Act; and
(b) an order that is taken to be, or that has effect, as if it were an order of that kind.
(a) an order for the custody of a child;
(b) an order for access to a child;
(c) an order for the maintenance of a child;
(d) an order for the guardianship of a child.
(2) In this clause, a reference to a thing done includes, for example:(a) the making of a Proclamation, Regulation or Rule of Court; or
(b) the making of an application to, or filing of a notice or other document in, a court; or
(c) the making of an order or other decree by a court; or
(d) the preparation of a report or other document.
Section 60 | Section 60D |
Section 60A | Section 60F |
Section 60AA | Section 60G |
Section 60B | Section 60H |
Section 60C | Section 60E |
Subsections 60E(1) and (2) | Subsections 69ZE(1) and (2) |
Subsection 60E(3) | Section 69ZG |
Subsection 60E(4) | Subsection 69ZE(3) |
Subsection 60E(5) | Subsection 69ZE(4) |
Subsections 60E(6) and (7) | Section 69ZF |
Section 60F | Section 69ZH |
Section 60G | Section 69ZJ |
Section 60H | Section 69ZK |
Section 61 | Section 62C |
Section 61A | Section 62E |
Section 61B | Section 62B |
Section 61C | Section 62H |
Section 62 | Section 62F |
Section 62A | Section 62G |
Subsection 63(1) | Section 69H |
Subsections 63(2) to (6) | Section 69J |
Subsection 63(7) | Section 69K |
Subsection 63(8) | Section 69L |
Subsection 63(9) | Section 69M |
Section 63A | Section 69B |
Section 63B | Section 69E |
Section 63C | Section 69C |
Section 63D | Section 69N |
Section 63E | No direct equivalent ( |
Section 63F | No direct equivalent ( |
Subsections 64(1) and (2) | No direct equivalent ( |
Subsection 64(5) | Section 65L |
Subsection 64(6) | Section 67ZD |
Subsections 64 (9) to (11A) | No direct equivalent ( |
Subsections 64 (12) and (13) | Subsections 67R(3) and (4) |
|
Section 64A | No direct equivalent ( |
Section 65 | Section 68L |
Section 65A | Section 68M |
Section 66 | Section 69F |
Section 66A | Section 66B |
Section 66B | Section 66C |
Section 66BA | Section 66E |
Section 66C | Section 66H |
Section 66D | Section 66J |
Section 66E | Section 66K |
Section 66F | Section 66G |
Section 66FA | Subsection 66F(2) |
Subsection 66G(1) | Subsection 66D(1) |
Subsection 66G(2) | Section 66M |
Subsection 66G(3) | Subsection 66D(2) |
Subsection 66G(4) | Section 66N |
Section 66H | Section 66L |
Section 66J | Section 66P |
Section 66K | Section 66Q |
Section 66L | Section 66R |
Section 66M | Section 66U |
Section 66N | Section 66S |
Sections 66P to 66U | ( |
Section 66V | Section 69V |
Subsections 66W(1) to (3) | Section 69W |
Subsection 66W(4) | Section 69X |
Subsection 66W(5) | Section 69Y |
Subsection 66W(6) | Section 69Z |
Subsections 66W(7) and (8) | Section 69ZA |
Subsection 66W(9) | Section 69ZB |
Subsections 66W(10) and (11) | Section 69ZC |
Section 66X | Section 67B |
Section 66Y | Section 67C |
Section 66Z | Section 67D |
Section 66ZA | Section 67E |
Section 66ZB | Section 67G |
Sections 66ZC to 66ZE | No direct equivalent ( |
Subsection 67(1) | Section 70B |
Subsection 67(1A) | Section 70C |
Subsection 67(2) | Section 70D |
Subsection 67(3) | Section 70E |
Subsection 68(1) | Section 70G |
Subsection 68(2) | Section 70H |
Subsection 68(3) | Subsection 70J(1) |
Subsection 68(4) | Subsection 70J(2) |
Subsection 68(5) | Section 70K |
Subsections 68(6) and (7) | Sections 70F and 70L |
Subsection 69(1) | Section 70M |
Subsection 69(2) | Section 70N |
Subsections 70(1), (2) and (3) | Sections 65M, 65N and 65P |
Subsections 70AA(1), (2) and (10) | Section 65Q |
Subsections 70AA(3) and (11) | Section 65S |
Subsection 70AA(4) | Section 65T |
Subsections 70AA(5) and (7) | Section 65U |
Subsection 70AA(6) | Section 65V |
Subsections 70AA(8) and (9) | Section 65W |
Subsection 70A(1) | Section 65Y |
Subsection 70A(2) | Section 65Z |
Subsection 70A(7) | Section 65ZD |
Subsections 70A(8) and (9) | Section 65X |
Subsections 70B(1) and (3) | Section 65ZA |
Subsections 70B(2) and (4) | Section 65ZB |
Subsections 70B(5), (6) and (7) | Section 65ZC |
Subsection 70B(8) | Section 65ZD |
Subsections 70B(9) and (10) | Section 65X |
Section 70BA | Section 67Z |
Section 70BB | Section 67ZA |
Section 70BC | Section 67ZB |
Section 70C | Section 68B |
Section 70D | Section 68C |
Section 70E | Section 69D |
Section 70F | Section 70Q |
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; Nos. 67 and 72, 1983; Nos. 63, 72 and 165, 1984; Nos. 65, 166 and 193, 1985; Nos. 76 and 168, 1986; Nos. 141 and 181, 1987; Nos. 8, 99 and 120, 1988; Nos. 124, 157 and 182, 1989; Nos. 115 and 138, 1990; Nos. 37, 113, 122, 136, 159 and 199, 1991; and Nos. 22, 23, 94, 104, 143 and 229, 1992.
[
House of Representatives on 8 November 1994 Senate on 28 November 1994
0
0
0