Family Law Regulations (Amendment) (Cth)

Statutory Rules 1988 No. 421

Family Law Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and pursuant to section 4 of the Acts Interpretation Act 1901,hereby make the following Regulations under the Family Law Act 1975.

Dated 16 March 1988.

N. M. STEPHEN

Governor-General

By His Excellency’s Command,

Lionel Bowen

Attorney-General

1. After regulation 12 of the Family Law Regulations the following regulations are inserted:

Prescribed pensions, allowances or benefits—subsection 4 (1) of the Act

“12a. For the purposes of the definition of ‘income tested pension, allowance or benefit’ in subsection 4 (1) of the Act, each of the following pensions, allowances or benefits is prescribed:

(a) a service pension within the meaning of Part III of the Veterans’ Entitlements Act 1986;

(b) an age pension, invalid pension, wife’s pension, widow’s pension, carer’s pension or supporting parent’s benefit within the meaning of the Social Security Act 1947;

(c) a remote area allowance under Part III of that Act;

(d) an incentive allowance under section 31 or 143 of that Act;

(e) rent assistance under section 36, 50 or 120 of that Act;

(f) a funeral benefit under Part VIII of that Act;

(S.R. 36/88)—Cat. No.  16/11.3.1988

(g) an unemployment benefit under section 116 of that Act;

(h) a sickness benefit under section 117 of that Act;

(i) a job search allowance under section 117a of that Act;

(j) the additional benefit applicable under subsection 118 (8) of that Act to a person to whom subsection 118 (9) of that Act applies;

(k) a special benefit under Division 6 of Part XIII of that Act;

(l) a sheltered employment allowance under Part XIV of that Act;

(m) a mobility allowance under Part XV of that Act;

(n) a rehabilitation allowance within the meaning of Part XVI of that Act;

(o) a special temporary allowance under section 172 of that Act;

(p) an allowance under the Aboriginal Study Assistance Scheme referred to in paragraph (b) of the definition of ‘prescribed educational scheme’ in subsection 136 (4) of that Act, to the extent that that scheme applies to full-time students;

(q) so much of an allowance under the Assistance for Isolated Children Scheme referred to in paragraph (f) of the definition of ‘prescribed educational scheme’ in subsection 136 (4) of that Act that is payable in addition to the minimum amount payable in respect of that allowance;

(r) a benefit under the New Enterprise Incentive Scheme referred to in subparagraph 178 (1) (a) (ii) of that Act;

(s) an allowance in respect of Education Assistance under Part III of the Student Assistance Act 1973,other than an allowance payable to a new pensioner student within the meaning of Part III of the Student Assistance Regulations;

(t) a living allowance for an English as a Second Language course at a Technical and Further Education institution, administered by the Department of Employment, Education and Training;

(u) an allowance known as a formal training allowance, being an allowance under any of the programs known as the Labour Market Programs, administered by the Department of Employment, Education and Training.

Prescribed law of State or Territory—section 60 of the Act

“12b. (1) For the purposes of the definition of ‘child welfare law’ in section 60 of the Act, each of the following classes of laws is prescribed, namely, any law of:

(a) the State of New South Wales;

(b) the State of Victoria;

(c) the State of Queensland;

(d) the State of Western Australia;

(e) the State of South Australia;

(f) the State of Tasmania;

(g) the Australian Capital Territory;

(h) the Northern Territory; or

(i) the Territory of Norfolk Island;

that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence.

“(2) For the purposes of the definition of ‘child welfare law’ in section 60 of the Act, each law specified in Column 2 of an item in Schedule 5, being a law of the State or Territory specified in Column 3 of that item, is prescribed.

Prescribed law—subsection 60b (1) of the Act

“12c. Each of the laws specified in Column 2 of an item in Schedule 6, being a law of the Commonwealth, a State or a Territory as set out in Column 3 of that item, is a prescribed law for the purposes of subsection 60b (1) of the Act.

Prescribed States or Territories—subsection 67 (1a) of the Act

“12d. For the purposes of subsection. 67 (1a) of the Act, each of the following States or Territories is a prescribed State or Territory:

(a) the State of New South Wales;

(b) the State of Victoria;

(c) the State of South Australia;

(d) the State of Tasmania;

(e) the Australian Capital Territory;

(f) the Northern Territory;

(g) the Territory of Norfolk Island.”.

Proceedings by person holding prescribed office

2. Regulation 15 of the Family Law Regulations is amended by omitting from subregulation (3) “Part VIII” and substituting “Part VII or VIII”.

3. After Part II of the Family Law Regulations the following Part is inserted:

PART IIa—DETERMINATION OF PARENTAGE: MEDICAL

PROCEDURES AND REPORTS

Interpretation

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

‘DNA’ means deoxyribonucleic acid;

‘donor’ means a person required to provide a bodily sample of blood for the purposes of a prescribed medical procedure;

‘HLA’ means human leucocyte antigen;

‘prescribed medical procedure’ means a medical procedure prescribed under regulation 21b;

‘sampler’ means a person taking a bodily sample of blood from a donor for the purposes of a prescribed medical procedure;

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

Prescribed medical procedures—section 60 of the Act

“21b. For the purposes of the definition of ‘parentage testing procedure’ in section 60 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) serum markers;

(e) DNA typing of restriction fragment length polymorphisms.

Collection of blood sample

“21c. (1) Where blood is collected from a donor for the purposes of a prescribed medical procedure, the sampler shall ensure that:

(a) all needles and syringes to be used in relation to withdrawal of the blood for collection have not been previously used, have been sterilised and are disposable;

(b) the area of the donor’s skin where, in relation to that withdrawal, a needle is to be inserted has been cleaned with an antiseptic;

(c) the container to be used for storing the blood has not previously been used;

(d) the container is so labelled that:

(i) if the label or any part of the label were removed; or

(ii) if any writing inscribed in ink on the label were to be altered or erased;

the impairment or removal of the label would be evident on inspection;

(e) the following particulars are inscribed in ink on the label:

(i) the full name of the donor;

(ii) the date of birth and sex of the donor;

(iii) the date and time when the blood sample was taken;

(iv) the signature of the sampler;

(f) the blood is placed in a container labelled and inscribed in accordance with this regulation in the presence of the donor;

(g) upon the completion of the procedure specified in paragraph (f), the donor signs his or her name in ink on the label;

(h) the container is so sealed that, if it were opened after being sealed, that fact would be evident on inspection.

 “(2) Where the donor is a child under the age of 18 years or a person suffering from a mental disability, the procedure specified in paragraph (1)

(f) is to be completed in the presence of, and the procedure specified in paragraph (1) (g) is to be completed by:

(a) in the case of the child—a guardian of the child; or

(b) in the case of the person suffering from a mental disability:

(i) a trustee or manager in relation to that person under the law of a State or Territory; or

(ii) a person having responsibility for the care of the person.

Storage and testing requirements

“21d. (1) Where:

(a) blood is collected for the purposes of a prescribed medical procedure; and

(b) testing relating to that procedure is to be carried out at a place other than the place where the blood is collected;

the container containing the blood must be packed:

(c) if the proposed prescribed procedure is red cell antigen blood grouping—in an insulated package containing an ice pack or other device enabling the blood to be held at a temperature of approximately 5° celsius throughout transportation to the place of testing; or

(d) if the proposed prescribed procedure is red cell enzyme blood grouping, serum markers, HLA tissue typing or DNA typing of restriction fragment length polymorphisms—in an insulated package enabling the container to be transported at ground level temperature and atmospheric conditions to the place of testing.

 “(2) The sampler shall ensure that blood collected in accordance with this Part is available for testing at the place where testing is to be carried out:

(a) if the testing relates to any of the prescribed medical procedures red cell antigen blood grouping, red cell enzyme blood grouping or serum markers—not later than 3 days after the collection of the blood; or

(b) if the testing relates to the prescribed medical procedure HLA tissue typing or DNA typing of restriction fragment length polymorphisms—not later than 24 hours after the collection of the blood.

 “(3) There shall be forwarded to the place of testing, together with the insulated package referred to in subregulation (1), forms completed in accordance with each of Forms 2 and 3 in Schedule 1.

 “(4) For the purpose of the completion of Form 2 in Schedule 1, where blood is collected from a donor:

(a) the donor shall:

(i) provide to the sampler a recent photograph of the donor measuring approximately 45 millimetres by 35 millimetres,

full face view of head and shoulders and with plain background; or

(ii) make arrangements with the sampler for such a photograph of the donor to be taken; and

 (b) the sampler shall affix the photograph to the form and sign his or her name partly on the photograph and partly on the form in such a manner that, if the photograph were removed from the form at any time after the sampler had so signed, the removal would be evident from inspection of the form.

Provision of information by donor

“21e. (1) Subject to this regulation, a donor shall, before blood is withdrawn from his or her body for testing, complete an affidavit in accordance with Form 3 in Schedule 1.

 “(2) Where the donor is a child under the age of 18 years or a person suffering from a mental disability, the affidavit in accordance with Form 3 in Schedule 1 is to be completed by:

(a) in the case of the child—a guardian of the child; or

(b) in the case of the person suffering from a mental disability:

(i) a trustee or manager in relation to that person under the law of a State or Territory; or

(ii) a person having responsibility for the care of the person.

Appointment of persons to make reports

“21f. (1) The Attorney-General may appoint in writing a person or a class of persons, being persons employed at a particular place, to prepare reports under subsection 66w (9) of the Act.

 “(2) An instrument of appointment under subregulation (1) shall be published in the Gazette.

 “(3) A report purporting to be made for the purposes of section 66w of the Act by a person other than a person appointed in accordance with this regulation shall be taken not to have been made in accordance with these Regulations and may not be received in evidence under subsection 66w (10) of the Act.

Form of report

“21g. A report under subsection 66w (9) of the Act shall be in accordance with Form 4 in Schedule 1.”.

Schedule

4. Schedule 1 to the Family Law Regulations is amended by adding at the end the following forms:

 “FORM 2 Subregulation 21d (3)

PARENTAGE TESTING PROCEDURE: COLLECTION OF BLOOD SAMPLES

NAME OF CHILD
WHOSE PARENTAGE IS IN ISSUE:
I, (name of sampler)		, of (address)
(occupation)	collected blood from the following person/*s
at *am/*pm on			(give date) at
(identify place of collection):
(name of person)		photograph
*(name of person)		photograph
*(name of person)		photograph
*(name of person)		photograph

2. When collecting the blood from *that person/*those persons, I strictly observed the procedures provided under Part IIa of the Family Law Regulations and placed *the blood sample/*each of the blood samples in a container bearing the name of the person from whom it was collected, the time at which and date on which it was collected and my signature.

Dated 19 .

(Signature)

* Omit if not applicable.

“FORM 3	Subregulation 21d (3)
Regulation 21e

PARENTAGE TESTING PROCEDURE

AFFIDAVIT BY/IN RELATION TO PERSON UNDERGOING PROCEDURE

NAME OF CHILD

WHOSE PARENTAGE IS IN ISSUE:

I, (name) , of (address) ,

(occupation)

*make oath and say/*affirm:

1 PART I

2. My racial background is .....................................................................................................

3. In the last 2 years:

 I *have/*have not suffered from leukaemia.

 I *have/*have not suffered from haemolytic anaemia.

I *have/*have not suffered from chronic granulomatous disease.

*4. The particulars of the *leukaemia/*haemolytic anaemia/*chronic granulomatous disease are as  follows:

(give particulars)

5. I *have/*have not received a transfusion of blood or a blood product within the last 4 months.

*6. The particulars of the transfusion of blood or blood product are as follows:

(give particulars)

7. I *have/*have not taken any medication within the last month.

*8. The particulars of the medication are as follows:

(give particulars)

2 PART II

2. I am the (state relationship or other status in relation to the person undergoing procedure) of (name of person undergoing procedure) who was born on (date of birth of person undergoing procedure).

3.  (Name of person undergoing procedure) is a person whose racial background

is …………......................................................................................................

4. In the last 2 years:

*he/*she *has/*has not suffered from leukaemia.

*he/*she *has/*has not suffered from haemolytic anaemia.

*he/*she *has/*has not suffered from chronic granulomatous disease.

*5. The particulars of the *leukaemia/*haemolytic anaemia/*chronic granulomatous disease are as follows:

(give particulars)

6. *He/*she *has/*has not received a transfusion of blood or a blood product within the last 4 months.

*7. The particulars of the transfusion of blood or blood product are as follows:

(give particulars)

8. (Name of person undergoing procedure)*has/*has not taken any medication during the past month.

*9. The particulars of the medication are as follows:

(give particulars)

*SWORN/*AFFIRMED by the

deponent at

on 19 .

(Signature of deponent)

Before me:

(Signature of person before whom the affidavit is sworn or affirmed)

*Omit if not applicable

1 Part I is to be completed where the deponent is the person from whom the blood sample is taken.

2 Part II is to be completed where the deponent is a person other than the person from whom the blood sample is taken.

“FORM 4 Regulation 21g

REPORT IN RELATION TO PARENTAGE TESTING

NAME OF CHILD

WHOSE PARENTAGE IS IN ISSUE:

PART I

I, (name of person making report), of (address) , (occupation) , being *a person appointed by the Attorney-General/*a

person within a class of persons employed at a particular place appointed by the Attorney-General to prepare reports of the kind referred to in paragraph 66w (9) (b) of the Family Law Act 1975,report that *a parentage testing procedure/*parentage testing procedures being *red cell antigen blood grouping/*red cell enzyme blood

grouping/*serum markers/*HLA tissue typing/*DNA typing of restriction fragment length polymorphisms *has/*have been carried out on samples of blood in sealed containers bearing the names of the following persons:

(name of person)

(name of person)

(name of person)

(name of person)

2.The samples of blood are the same samples as those referred to in the form/*s in accordance with Form 2 in Schedule 1 to the Family Law Regulations completed by (name of sampler)on 19  .

3. The parentage testing *procedure was/*procedures were carried out at (specify laboratory or laboratories).

4. The results of the parentage testing procedure/*s are set out in Part II of this report.

*5. I report that the results of the parentage testing procedure/*s carried out on the sample of blood in the container bearing the name of (name of putative parent) show that (name of putative parent)is not excluded from identification as the *father/*mother of the person from whom the blood in the container bearing the name of (name of child whose parentage is in issue)was taken. I further report:

(Set out explanation of the likelihood that putative parent is the biological parent of the child)

or

*5. I report that the results of the parentage testing procedure/*s carried out on the sample of blood in the container bearing the name of (name of putative parent) show that (name of putative parent)is excluded from identification as the *father/*mother of the person from whom the blood in the container bearing the name of (name of child whose parentage is in issue)was taken. I further report that the exclusion is based on contradictions to the laws of genetic inheritance in (number)of the (number)genetic markers tested. The contradictions occurred in the following genetic markers:

(Set out names of genetic markers and whether the contradictions were of the first or second order)

Dated 19 .

............................................

(Signature of person making the report)

*Omit if not applicable.

PART II

1. The samples of blood referred to in Part I were received at (place at which the parentage testing *procedure was/*procedures were carried out)on 19  .

2. The following identification numbers were allocated respectively to the samples of blood in the containers in which the *procedure was/*procedures were carried out:

(name of person)	(identification number)
(name of person)	(identification number)
(name of person)	(identification number)
(name of person)	(identification number)

3. (Set out here results obtained from the parentage testing procedure/*s),

1*4. The above results refer to the parentage testing procedure/*s carried out on 19  , the samples being tested against the same reagents and in parallel with appropriate known controls from a proven blood cell panel. 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.

or

2*4. The above results refer to the parentage testing procedure carried out under my supervision on 19 , the samples being tested against the same probes and in parallel with appropriate known controls from a proven blood cell panel. Fragment length patterns were in accordance with scientifically accepted standards. I am satisfied that the results obtained have been correctly coded from the fragment pattern and that they have been correctly transcribed from the laboratory workbooks.

Dated 19 .

..................................................

(Signature of person carrying out the parentage testing procedure/*s)

*Omit if not applicable.

1 To be included where one or more of the following parentage testing procedures is carried out: red cell antigen blood grouping, red cell enzyme blood grouping, HLA tissue typing or serum markers.

2 To be included where the parentage testing procedure carried out is DNA typing of restriction fragment length polymorphisms.”.

Schedules 5 and 6

5. The Family Law Regulations are amended by adding at the end the following Schedules:

 SCHEDULE 5Subregulation 12b (2)

PRESCRIBED LAWS FOR PURPOSES OF DEFINITION OF “CHILD WELFARE LAW” IN SECTION 60 OF THE ACT

Column 1	Column 2	Column 3
Item No.	Prescribed law	State or Territory
1	Adoption of Children Act 1965	New South Wales
2	Child Welfare Act 1939.............................................	New South Wales
3	Children (Care and Protection) Act 1987....................

New South Wales
4	Children (Criminal Proceedings) Act 1987.................	New South Wales
5	Mental Health Act 1958............................................	New South Wales
6	Miscellaneous Acts (Community Welfare) Repeal and
Amendment Act 1987...........................................	New South Wales
7	Adoption Act 1984....................................................	Victoria
8	Children’s Court Act 1973.........................................	Victoria
9	Community Services Act 1970....................................	Victoria
10	Mental Health Act 1959.............................................	Victoria
11	Mental Health Act 1986.............................................	Victoria
12	Adoption of Children Act 1964...................................	Queensland
13	Children’s Services Act 1965 (except Part IX of that Act)	Queensland
14	Section 76l of the Health Act 1937............................	Queensland
15	Mental Health Services Act 1974...............................	Queensland
16	Adoption of Children Act 1896...................................	Western Australia
17	Child Welfare Act 1947.............................................	Western Australia
18	Mental Health Act 1981.............................................	Western Australia
19	Adoption of Children Act, 1966.................................	South Australia
20	Children’s Protection and Young Offenders Act, 1979	South Australia
21	Community Welfare Act, 1972..................................	South Australia
22	Mental Health Act, 1976...........................................	South Australia
23	Adoption of Children Act 1968...................................	Tasmania
24	Child Protection Act 1974.........................................	Tasmania
25	Child Welfare Act 1960.............................................	Tasmania
26	Mental Health Act 1963.............................................	Tasmania
27	Adoption of Children Act...........................................	Northern Territory
28	Community Welfare Act 1983....................................	Northern Territory
29	Mental Health Act 1979.............................................	Northern Territory
30	Adoption of Children Ordinance 1965........................	Australian Capital Territory
31	Child Welfare Ordinance 1957..................................	Australian Capital Territory
32	Children’s Services Ordinance 1962..........................	Australian Capital Territory
33	Lunacy Ordinance 1938............................................	Australian Capital Territory
34	Mental Health Ordinanee 1962..................................	Australian Capital Territory
35	Mental Health Ordinance 1983..................................	Australian Capital Territory
36	Adoption of Children Ordinance 1932........................	Norfolk Island
37	Child Welfare Ordinance 1937..................................	Norfolk Island
38	Lunacy Ordinanee 1932............................................	Norfolk Island

SCHEDULE 6Regulation 12c

PRESCRIBED LAWS—SUBSECTION 60B (1) OF THE ACT

Column 1	Column 2	Column 3
Item No.	Prescribed law or laws	Commonwealth/State/Territory
1	Family Relationships Act, 1975:
sections 10a, 10b, 10c, 10d and 10e...................	South Australia
2	Status of Children Act 1974:
sections 10a, 10b, 10c, 10d, 10e and 10f..........	Victoria
3	Artificial Conception Act 1984.............................	New South Wales
4	Artificial Conception Act 1985..............................	Western Australia
5	Status of Children Act 1974:
sections 10a, 10b and 10c...............................	Tasmania
6	Artificial Conception Ordinance 1985...................	Australian Capital Territory
7	Status of Children Act 1978:
sections 5a, 5b, 5c, 5d, 5e and 5F.....................	Northern Territory

NOTES

1. Notified in the Commonwealth of Australia Gazette on 24 March 1988.

2. Statutory Rules 1984 No. 426 as amended by 1985 No. 183; 1986 Nos. 140 and 393; 1987 Nos. 85 and 175.

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