Family Law Regulations (Amendment) (Cth)

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Statutory Rules 1996

No. 265 1

__________________

Family Law Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 4 December 1996.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

DARYL WILLIAMS

Attorney-General and Minister for Justice

____________

1. Commencement

1.1 These Regulations commence on 1 January 1997.

2. Amendment

2.1 The Family Law Regulations are amended as set out in these Regulations.

3. Part IIA (Determination of parentage: medical procedures and reports)

3.1 Omit the Part, substitute:

“PART IIA—PARENTAGE TESTING PROCEDURES

AND REPORTS

“Division 1—General

Application of Part

“21A. This Part applies to a parentage testing procedure that is required to be carried out on a person under a parentage testing order made by the court under subsection 69W (1) of the Act.

Interpretation

“21B. In this Part, unless the contrary intention appears:

‘bodily sample’ is not limited to a sample of blood;

‘donor’ means the person required to provide a bodily sample for the purposes of a parentage testing procedure;

‘HLA’ means human leucocyte antigen;

‘NATA’ means the National Association of Testing Authorities, Australia;

‘nominated reporter’ means the person nominated by a laboratory to prepare a report relating to the information obtained as a result of carrying out a parentage testing procedure at that laboratory;

‘report’ means a report in accordance with regulation 21M;

‘sample’ means a sample taken from a donor for the purposes of a parentage testing procedure;

‘sampler’ means a person who takes a bodily sample from a donor for the purposes of a parentage testing procedure;

‘testing’ means the implementation, or any part of the implementation, of a parentage testing procedure.

Parentage testing procedures

“21C. For the purposes of the definition of ‘parentage testing procedure’ in subsection 60D (1) of the Act, the following medical procedures are prescribed:

(a)
red cell antigen blood grouping;
(b)
red cell enzyme blood grouping;
(c)
HLA tissue typing;
(d)
testing for serum markers;
(e)
DNA typing.

Compliance with Regulations

“21D. A parentage testing procedure is taken to be carried out in accordance with these Regulations if:

(a)
it is carried out:
(i)
in compliance with Division 2; and
(ii)
at a laboratory that is accredited by NATA for the purpose of carrying out parentage testing procedures; and
(iii)
in accordance with standards of practice that entitle the laboratory to be so accredited; and
(b)
it is supplemented by a report under Division 3.

“Division 2—Collection, storage and testing of samples

Samplers

“21E. A person must not take a bodily sample from a donor for the purposes of a parentage testing procedure unless:

(a)
the person is a registered medical practitioner; or
(b)
the person is employed by a hospital, a pathology practice, a parentage testing practice or a registered medical practitioner for the purpose of taking a bodily sample from a donor.

Provision of information by donor—Forms 2 and 3

“21F. (1) A sampler must not take a bodily sample from a donor before the donor or, if appropriate, a person described in subregulation (3), has:

(a)
completed an affidavit in accordance with Form 2 in Schedule 1; and
(b)
either:
(i)
provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres by 35 millimetres, that shows a full face view of the donor’s head and the donor’s shoulders against a plain background; or
(ii)
made a written arrangement with the sampler for a photograph of that kind to be taken.

“(2) Immediately before the sampler takes the bodily sample from the donor, the donor must have completed a declaration in accordance with Form 3 in Schedule 1.

“(3) If the donor is a child under the age of 18 years, or a person who is suffering from a mental disability, the affidavit referred to in paragraph (1) (a) and the declaration referred to in subregulation (2) may be completed only by:

(a)
in the case of a child under the age of 18 years—a person who is responsible for the long-term care, welfare and development of the child; or
(b)
in the case of a person who is suffering from a mental disability:
(i)
a trustee or manager in relation to the person under a law of the State or Territory whose laws apply to the person; or
(ii)
a person who is responsible for the care, welfare and development of the person suffering from a mental disability.

Collection of blood samples

“21G. (1) A sampler may take a sample of blood from a donor only with a needle or syringe that:

(a)
has not been used for any purpose; and
(b)
has been sterilised; and
(c)
is disposable.

“(2) Before taking a sample of blood from a donor, the sampler must ensure that the area of the donor’s skin into which the needle is to be inserted to withdraw the blood has been cleaned with an antiseptic.

Collection of bodily samples for DNA typing

“21H.(1) This regulation applies to the taking of a bodily sample (except a sample of blood) from a donor for the purposes of a parentage testing procedure that is DNA typing.

“(2) A sampler must not take a bodily sample from a donor with a swab unless the swab:

(a)
has not been used for any purpose; and
(b)
has been sterilised.

“(3) If the bodily sample to be taken from a donor is a skin scraping or a hair root, the implement used by the sampler to take the sample must have been sterilised before use.

Container to be sealed and labelled

“21I.(1) If a bodily sample is taken from a donor, the sampler must ensure that:

(a)
the sample is placed in a container:
(i)
immediately after it is taken; and
(ii)
in the presence of the donor; and
(b)
the container has not previously been used for any purpose; and
(c)
the container is sealed in a way that, if it were opened after being sealed, that fact would be evident on inspection of the container; and
(d)
the container is labelled in a way that:
(i)
if the label, or any part of the label, were removed; or
(ii)
if writing on the label were impaired by alteration or erasure;
the removal of the label, or the impairment, would be evident on inspection of the container; and
(e)
the particulars on the label are inscribed in ink and include:
(i)
the full name of the donor; and
(ii)
the date of birth and the sex of the donor; and
(iii)
the date and time at which the sample was taken; and
(f)
when paragraph (e) is complied with—the sampler and the donor sign the label, in ink.

“(2) If the donor is a child under the age of 18 years:

(a)
the procedure specified in paragraph (1) (a) must be completed in the presence of the person who is responsible for the long-term care, welfare and development of the child; and
(b)
the procedure specified in paragraph (1) (f) is taken to be satisfied only if the person who is responsible for the long-term care, welfare and development of the child signs the label.

“(3) If the donor is a person who is suffering from a mental disability:

(a)
the procedure specified in paragraph (1) (a) must be completed in the presence of:
(i)
a trustee or manager in relation to the person under a law of the State or Territory whose laws apply to the person; or
(ii)
a person who is responsible for the care, welfare and development of the person suffering from a mental disability; and

(b)
the procedure specified in paragraph (1) (f) is taken to be complied with only if the label is signed:
(i)
by a trustee or manager in relation to the person under a law of the State or Territory whose laws apply to the person; or
(ii)
by a person who is responsible for the care, welfare and development of the person suffering from a mental disability.

Statement by sampler—Form 4

“21J. After taking a bodily sample from a donor, the sampler must:

(a)
complete a statement in accordance with Form 4 in Schedule 1; and
(b)
affix the photograph of the donor referred to in paragraph 21F (1) (b) to the statement; and
(c)
sign his or her name partly on the photograph and partly on the statement in a way that, if the photograph were later removed from the statement, the removal would be evident from inspection of the statement.

Packing and storage requirements

“21K. (1) A bodily sample must be packed, stored and transported to a laboratory for testing in a manner that:

(a)
will preserve the integrity of the sample; and
(b)
ensures that the testing of the sample will produce the same results as would have been obtained if the sample had been tested immediately after collection.

“(2) The sampler must ensure that the following documents are sent to the laboratory with the sample:

(a)
the affidavit completed under paragraph 21F (1) (a);
(b)
the declaration completed under subregulation 21F (2);
(c)
the statement completed under regulation 21J.

Testing of bodily samples

“21L. (1) A laboratory to which a bodily sample has been sent for testing must ensure that the testing is completed:

(a)
if the proposed procedure is red cell antigen blood grouping, red cell enzyme blood grouping or testing for serum markers—within 6 days after the sample is taken; or
(b)
if the proposed procedure is HLA tissue typing—within 3 days after the sample is taken; or
(c)
if the proposed procedure is DNA typing—within a reasonable time after the sample is taken.

“(2) If the proposed procedure is red cell enzyme blood grouping or testing for serum markers, paragraph (1) (a) is complied with if a dried sample of the bodily sample to be tested is prepared within 6 days after the sample is taken from the donor.

“Division 3—Reports

Reports—Form 5

“21M. (1) For the purposes of paragraph 69ZB (b) of the Act, a report must be prepared, in accordance with this regulation, relating to the information obtained as a result of carrying out a parentage testing procedure.

“(2) The report must be in accordance with Form 5 in Schedule 1.

“(3) Part I of the report must be completed by the nominated reporter identified in the report.

“(4) Part II of the report must be completed by:

(a)
the person who carried out the parentage testing procedure; or
(b)
the person under whose supervision the parentage testing procedure was carried out.

“(5) A report completed otherwise than in accordance with this regulation is taken to be of no effect.

“Division 4—Miscellaneous

Notification of accredited laboratories and nominated reporters

“21N. (1) NATA must prepare, for each calendar year:

(a)
a list of any laboratories that are accredited by NATA to carry out parentage testing procedures; and
(b)
for each accredited laboratory—a nominated reporter.

“(2) Immediately before the beginning of each calendar year, NATA must give a copy of the list to:

(a)
the Attorney-General; and
(b)
the Chief Executive Officer of the Family Court of Australia; and
(c)
the Registrar of the Family Court of Western Australia.

“(3) The Attorney-General must publish the list in a manner determined by the Attorney-General.

“(4) If NATA amends the list during the year to which it applies, it must give written notice of the amendment to each person referred to in subregulation (2).

“(5) If NATA gives notice under subregulation (4), the Attorney-General must publish a revised list in a manner determined by the Attorney-General.”.

4. Schedule 1

4.1 Forms 2, 3 and 4:

Omit the Forms, substitute:

“FORM 2 Subregulation 21F (1)

parentage testing procedure

AFFIDAVIT BY/IN RELATION TO DONOR

NAME OF CHILD WHOSE

PARENTAGE IS IN ISSUE: (insert child’s name)

1. I, (insert name), of (insert address), (insert occupation), *make oath and say/*affirm:

PART I

Part I must be completed if the person swearing or

affirming the affidavit is the donor

2. My racial background is (give details).

3. In the last 2 years:

(a)
I *have/*have not suffered from leukaemia.
(b)
I *have/*have not received a bone marrow transplant.
*4. The particulars of the *leukaemia/*bone marrow transplant are as follows: (give particulars).
5. I *have/*have not received a transfusion of blood or a blood product within the last 6 months.
*6. The particulars of the transfusion of blood or blood product are as follows: (give particulars).

PART II

Part II must be completed if the person swearing or

affirming the affidavit is not the donor

2. I am the (state relationship or other status in relation to the donor) of (insert name of donor) who was born on (insert date of birth of donor).
3. (Insert name of donor) is a person whose racial background is (give details).

4. In the last 2 years:

(a)
The donor *has/*has not suffered from leukaemia.
(b)
The donor *has/*has not received a bone marrow transplant.
*5. The particulars of the *leukaemia/*bone marrow transplant are as follows: (give particulars).
6. The donor *has/*has not received a transfusion of blood or a blood product within the last 6 months.
*7. The particulars of the transfusion of blood or blood product are as follows: (give particulars).

*SWORN/*AFFIRMED by the

deponent at

on 19 .

(Signature of deponent)

BEFORE ME: (insert name of person

before whom the affidavit is sworn
or affirmed)

(Signature of person

before whom affidavit
is sworn or affirmed)

*Omit if not applicable.

__________

“FORM 3 Subregulation 21F (2)

parentage testing procedure

DECLARATION BY/IN RELATION TO DONOR

PART I

Part I must be completed if the person making

the declaration is the donor

I, (insert name), of (insert address), (insert occupation), declare that I *have/*have not received a transfusion of blood or a blood product since I signed the affidavit required by subregulation 21F (1) of the Family Law Regulations in respect of this parentage testing procedure.

PART II

Part II must be completed if the person making

the declaration is not the donor

1. I, (insert name), of (insert address), (insert occupation), declare that:
2. I am the (state relationship or other status in relation to the donor) of (insert name of donor) who was born on (insert date of birth of donor).
3. The donor *has/*has not received a transfusion of blood or a blood product since *I/*(insert name of person who signed the affidavit required by subregulation 21F (1) of the Family Law Regulations) signed the affidavit required by subregulation 21F (1) of the Family Law Regulations in respect of this parentage testing procedure.

DATED: 19 .

(Signature of person completing declaration)

*Omit if not applicable.

__________

“FORM 4 Regulation 21J

parentage testing procedure

COLLECTION OF BODILY SAMPLES

NAME OF CHILD WHOSE

PARENTAGE IS IN ISSUE: (insert child’s name)

1. I, (insert name of sampler), of (insert professional address), (insert occupation), took the *bodily sample/*bodily samples specified below at (insert time) *am/*pm on (insert date) at (insert place of collection) from the following *person/*persons:
(a)
(insert name of person, type of bodily sample and person’s photograph);
*(b)
(insert name of person, type of bodily sample and person’s photograph);
*(c)
(insert name of person, type of bodily sample and person’s photograph);
*(d)
(insert name of person, type of bodily sample and person’s photograph).
2. When I took the *bodily sample/*bodily samples specified above, I strictly observed the procedures provided under Part IIA of the Family Law Regulations.
3. I placed the *bodily sample/*each of the bodily samples specified above in a container that was immediately sealed and then labelled in accordance with regulation 21I of the Family Law Regulations.

DATED: 19 .

(Signature of sampler)

*Omit if not applicable.

__________

“FORM 5 Regulation 21M

parentage testing procedure

REPORT

NAME OF CHILD WHOSE

PARENTAGE IS IN ISSUE: (insert child’s name)

PART I

1. I, (insert name of nominated reporter), of (insert address), (insert occupation), am a person nominated by the laboratory specified below to prepare a report for the purposes of paragraph 69ZB (b) of the Family Law Act 1975.
2. I report that *a parentage testing procedure/*parentage testing procedures being:
*(a)
red cell antigen blood grouping;
*(b)
red cell enzyme blood grouping;
*(c)
testing for serum markers;
*(d)
HLA tissue typing;
*(e)
DNA typing;
*has/*have been carried out on the bodily *sample/*samples contained in the sealed *container/*containers bearing the *name/*names of the following *donor/*donors:
(a)
(insert donor’s name, date of birth and relationship to child whose parentage is in issue);
*(b)
(insert donor’s name, date of birth and relationship to child whose parentage is in issue);
*(c)
(insert donor’s name, date of birth and relationship to child whose parentage is in issue);
*(d)
(insert donor’s name, date of birth and relationship to child whose parentage is in issue).
3. Each bodily sample referred to in item 2 is the same bodily sample as the bodily sample specified in the statement completed on (insert date) by (insert name of sampler) in accordance with Form 4 in Schedule 1 of the Family Law Regulations.
4. The parentage testing *procedure was/*procedures were carried out at (insert name of *laboratory/*laboratories).
5. The results of the parentage testing *procedure/*procedures are set out in Part II of this report.
*6. I report that the results of the parentage testing *procedure/*procedures carried out on the bodily *sample/*samples of the donors specified above show that (insert name of putative parent) is not excluded from identification as the *father/*mother of (insert name of child whose parentage is in issue).
*7. I further report that the probability that (insert name of putative parent) is the genetic *father/*mother of (insert name of child whose parentage is in issue) has been calculated as follows:
*Paternity/*Maternity Index (insert figure) to 1
Relative chance of *Paternity/*Maternity (insert percentage)%
*6. I report that the results of the parentage testing *procedure/*procedures carried out on the bodily *sample/*samples of the donors specified above show that (insert name of putative parent) is excluded from identification as the *father/*mother of (insert name of child whose parentage is in issue).
*7. I further report that the exclusion is based on contradictions of the laws of genetic inheritance in (insert amount) of the (insert amount) genetic markers: (insert the names of the genetic markers and whether the contradictions are of the first or second order).
*8. I further report (if necessary, provide further explanation of results detailed in items 6 and 7 above).

DATED: 19 .

(Signature of nominated reporter)

PART II

1. The bodily *sample/*samples referred to in Part I of this report were received at (insert name of laboratory at which parentage testing *procedure was/*procedures were carried out) on (insert date).
2. The following identification *number was/*numbers were allocated respectively to the bodily *sample/*samples in the *container/*containers in respect of which the parentage testing *procedure was/*procedures were carried out:
(a)
(insert name of donor and identification number);
*(b)
(insert name of donor and identification number);
*(c)
(insert name of donor and identification number);
*(d)
(insert name of donor and identification number).
3. The results obtained from the parentage testing *procedure/*procedures are: (set out the results).

Complete this item if the parentage testing procedure carried out was red cell antigen blood grouping, red cell enzyme blood grouping, HLA tissue typing or testing for serum markers

*4. The results set out above in item 3 refer to the parentage testing *procedure/*procedures carried out *by me/*under my supervision on (insert date). The bodily *sample was/*samples were tested with the same reagents and in parallel with appropriate known controls. Results from controls show that all reagents were of correct specificity and normal potency. I am satisfied that the results obtained are true and that they have been correctly transcribed from the laboratory workbooks.

Complete this item if the parentage testing procedure

carried out was DNA typing

*4. The results set out above in item 3 refer to the parentage testing *procedure/*procedures carried out *by me/*under my supervision on (insert date). The bodily *sample was/*samples were tested with the same probes/primers and in parallel with appropriate known controls. Fragment length and/or hybridisation patterns were in accordance with scientifically accepted standards. I am satisfied that the results obtained have been correctly coded from the fragment and/or hybridisation pattern and that they have been correctly transcribed from the laboratory workbooks.

DATED: 19 .

(Signature of person who carried

out parentage testing procedure

or person under whose

supervision parentage testing

procedure was carried out)

*Omit if not applicable.

__________”.

5. Schedule 5 (Prescribed laws—definition of “child welfare law” in subsection 60D (1) of the Act)

5.1 Items 1, 2, 3, 4, 5 and 6:

Omit the items, substitute:

“1	Adoption of Children Act 1965 (sections 18, 24, 25 and 31C, subsections 34 (1), (2C), (3), (4) and (5) and sections 35, 41, 43, 46 and 47)	New South Wales
2	Adoption of Children Regulation 1995 (clause 24)	New South Wales
3	Children (Care and Protection) Act 1987 (sections 14, 16, 20B, 21, 22, 23, 62 and 62A, subparagraphs 72 (1) (c) (ii) and (iii) and 77 (1) (a) (v) and (b) (iii), subsection 77 (1A), section 86, subsections 88 (4) and 95 (4), section 96 and paragraphs 112 (1) (e) and (f))	New South Wales
4	Community Services (Complaints, Appeals and Monitoring) Act 1993 (sections 47 and 48)	New South Wales
5	Guardianship Act 1987 (sections 13 and 14, paragraph 23 (b), subsections 25 (5) and (6) and sections 31 and 32 to 48)	New South Wales”.

6. Schedule 8 (Family Violence Orders—prescribed laws of State or Territory)

6.1 Item 3:

Omit the item, substitute:

“3

Domestic Violence (Family Protection) Act 1989 (sections 20, 21, 30, 31, 35 and 36)

Queensland”.

7. Transitional

7.1 For the purposes of the Family Law Regulations as amended by these Regulations, a person who, immediately before the commencement of these Regulations, was, under subregulation 21F (1) of the Family Law Regulations as in force immediately before the commencement of these Regulations:

(a)
an appointed person; or
(b)
a person in a class of appointed persons;

is taken, for the period of 12 months beginning on the commencement of these Regulations, to be a nominated reporter for the laboratory of which the person is a principal or an employee.

_____________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 11 December 1996.
2. Statutory Rules 1984 No. 426 as amended by 1985 No. 183; 1986 Nos. 140 and 393; 1987 Nos. 85 and 175; 1988 Nos. 42, 44, 164 and 165; 1989 Nos. 8, 53, 74, 155, 205, 235 and 326; 1990 Nos. 294 and 373; 1991 Nos. 401 and 447 (disallowed by the Senate on 3 March 1992); 1992 Nos. 33, 160, 287, 376 and 404; 1994 Nos. 86 and 343; 1995 Nos. 297, 400 and 419; 1996 Nos. 71, 188 (as amended by 1996 No. 201).

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