Family Legislation Amendment Act 2006 (WA)

Western Australia

Family Legislation Amendment Act 2006

Western Australia

Family Legislation Amendment Act 2006

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
3.	The Act amended	2
Part 2 — Miscellaneous amendments
Division 1 — Removal of requirements to

register parenting plans

4.	Section 5 amended	3
5.	Section 74 amended	3
6.	Section 75 replaced	3

75.             Parents encouraged to reach agreement

— FLA s. 63B 3

7.	Section 76 amended	4
8.	Section 78 replaced	4

78.             Parenting plan may be varied or revoked

by further written agreement — FLA

s. 63D 4

9. Section 78A replaced by sections 78A and 78B 5

78A.	Explanation by person advising or
assisting in the making of a parenting
plan — FLA s. 63DA 5
78B.	Registered parenting plans — FLA
s. 63DB 5

10. Section 79 replaced 6

79.             Registration of a revocation of a registered

parenting plan — FLA s. 63E 6

11. Section 80 amended 7

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12.	Section 81 amended	7
13.	Section 82 amended	7
14.	Section 174 amended	8
15.	Section 205A amended	8
16.	Section 221 amended	8
Division 2 — Use of audio links, video links, etc.
17.	Section 5 amended	9
18.	Heading to Part 8 Division 1 inserted	9
Division 1 — General matters concerning procedure

and evidence

19.	Part 8 Division 2 inserted	9
Division 2 — Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.

219AA.	Evidence Act 1906 not excluded	9
219AB.	Testimony — FLA s. 102C	10
219AC.	Appearance of persons — FLA s. 102D	11
219AD.	Making of submissions — FLA s. 102E	11
219AE.	Conditions for use of links — FLA s. 102F	12
219AF.	Putting documents to a person — FLA s.
102G	14
219AG.	Administration of oaths and affirmations —
FLA s. 102J	15
219AH.	Expenses — FLA s. 102K	16
219AI.	New Zealand proceedings — FLA s. 102L	16

20.	Section 244 amended	17
21.	Transitional provision	17
Division 3 — Parenting compliance regime
22.	Section 95A inserted	17

95A.	Court may order attendance at a
post-separation parenting program — FLA
s. 65LA 17

23.	Section 102 amended	18
24.	Section 205A amended	18
25.	Section 205G amended	20
26.	Section 205H amended	22
27.	Section 205K replaced	23

205K.	Court may make further orders in relation
to attendance at program — FLA s. 70NIA 23

28.	Section 205L amended	23
Division 4 — Setting aside financial agreements
29.	Section 205ZV amended	25
30.	Transitional provisions	27

Family Legislation Amendment Act 2006

Contents

Division 5 — Other amendments relating to

financial agreements

31.	Section 205ZR amended	28
32.	Section 205ZS amended	28
33.	Section 205ZU amended	29
Division 6 — Orders and injunctions binding

third parties

34.	Division 2A inserted in Part 5A	29
Division 2A — Orders and injunctions binding

third parties

Subdivision 1 — Introductory

205ZLA.	Object of Division — FLA s. 90AA	29
205ZLB.	Definition — FLA s. 90AB	30
205ZLC.	This Division overrides other laws, trust
deeds, etc. — FLA s. 90AC	30
205ZLD.	Extended meaning of “property” — FLA
s. 90AD	30
205ZLE.	Other provisions of this Act not affected by
this Division — FLA s. 90ADA	30

Subdivision 2 — Orders under section 205ZG

205ZLF.	Court may make an order under
section 205ZG binding a third party —
FLA s. 90AE 31

Subdivision 3 — Orders or injunctions under

section 235A

205ZLG.	Court may make an order or injunction
under section 235A binding a third
party — FLA s. 90AF 33

Subdivision 4 — Other matters

205ZLH.	Orders and injunctions binding on
trustees — FLA s. 90AG 35
205ZLI.	Protection for a third party — FLA s. 90AH 35
205ZLJ.	Service of documents on a third party —
FLA s. 90AI 35
205ZLK.	Expenses of third party — FLA s. 90AJ 36

35.	Transitional provisions	37
Division 7 — Amendments about Magistrates

Courts

36.	Section 43 amended	37
37.	Section 209A inserted	39

209A. Interpretation 39

38. Sections 210A, 210AA and 210AB inserted 39

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210A.	Non-federal jurisdictions — appeal from
decree of Magistrates Court constituted by
a family law magistrate 39
210AA.	Leave to appeal needed in some cases
referred to in section 210A 42
210AB.	Case stated 42

39.	Section 211 amended	43
40.	Sections 211A and 211B inserted	43

211A.	Appeals, and applications for leave,
without oral hearing 43
211B.	Power to dismiss appeal 44

41.	Transitional provision	44
Division 8 — Amendments relating to the

Criminal Property Confiscation Act 2000

42.	Section 5 amended and consequential amendment	44
43.	Section 205ZH amended	46
44.	Sections 205ZHA, 205ZHB, 205ZHC and
205ZHD inserted	46
205ZHA. Notification of criminal confiscation orders

etc. — FLA s. 79B 46

205ZHB. Court to stay proceedings under this

Division affected by criminal confiscation order etc. — FLA s. 79C 48

205ZHC.	Lifting a stay — FLA s. 79D	49
205ZHD.	Intervention by DPP — FLA s. 79E	49

45.           Sections 205ZX, 205ZY, 205ZZ and 205ZZA

inserted in Part 5A Division 3 50

205ZX. Notification of criminal property

confiscation order etc. FLA — s. 90M 50

205ZY.	Court to stay proceedings under Division 2 affected by criminal confiscation order etc. — FLA s. 90N	51
205ZZ.	Lifting a stay — FLA s. 90P	52
205ZZA.	Intervention by DPP — FLA s. 90Q	53

Division 9 — Other amendments

Subdivision 1 — Parenting compliance regime

46.	Section 91 amended	53
47.	Part 5 Division 13 Subdivision 1A inserted	54
Subdivision 1A — Court’s powers where

contravention without reasonable excuse not

established

205FA.	Court’s power to vary parenting order —
FLA s. 70NEB 54

48. Transitional provisions 55

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Subdivision 2 — Costs and offers of settlement

49.	Section 237 amended	55
50.	Section 240 replaced	55

240. Offers of settlement — FLA s. 117C 55

51.	Savings provision	56
Subdivision 3 — Suspension of sentences of

imprisonment

52.	Section 205Q amended	57
53.	Section 226 amended	57
54.	Section 227 amended	57
Subdivision 4 — Enforcement (removal of

information procedure)

55.	Section 205P amended	58
56.	Section 230 amended	58
57.	Savings provision	59
Subdivision 5 — Private arbitration
58.	Section 60B amended	59
Subdivision 6 — Change of venue
59.	Section 46A inserted	59

46A. Change of venue — FLA s. 27A 59

Subdivision 7 — Definition of disposition

60.	Section 222 amended	60
61.	Savings provision	61
Subdivision 8 — Recovery of amounts paid under

maintenance orders

62.	Part 5 Division 7 Subdivision 7 inserted	61
Subdivision 7 — Recovery of amounts paid under

maintenance orders

132A.	Recovery of amounts paid, and property
transferred or settled, under maintenance
orders — FLA s. 66X 61

Subdivision 9 — Other miscellaneous amendments

63.	Section 5 amended	64
64.	Section 55 amended	64
65.	Section 57 amended	64
66.	Section 59 amended	64
67.	Section 61 amended	64
68.	Section 64 amended and transitional provision	65
69.	Section 169 amended	66
70.	Section 205J amended and transitional provision	66

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71.	Section 205H amended	67
72.	Section 205ZB amended	67
73.	Section 212 amended	67
74.	Section 222 amended	67
75.	Section 222A amended	68
76.	Section 226 amended	68
77.	Section 237 amended and transitional provision	68
78.	Section 238 amended	69
79.	Section 243 amended	70
Part 3 — Amendments about shared

parental responsibilities

Division 1 — Amendments about shared

parental responsibilities

80.	Section 5 amended	71
81.	Heading inserted in Part 5 Division 1	73
Subdivision 1 — Objects and principles
82.	Section 66 replaced	73

66.             Object of Part and principles underlying

it — FLA s. 60B 73

83.	Subdivisions 2 and 3 inserted in Part 5 Division 1	75
Subdivision 2 — Best interests of the child

66A.	Child’s best interests paramount
consideration in making a parenting
order — FLA s. 60CA 75
66B.	Proceedings to which Subdivision
applies — FLA s. 60CB 75
66C.	How a court determines what is in a child’s
best interests — FLA s. 60CC 76
66D.	How the views of a child are expressed —
FLA s. 60CD 80
66E.	Children not required to express views —
FLA s. 60CE 80
66F.	Informing court of relevant family violence
orders — FLA s. 60CF 80
66G.	Court to consider risk of family violence —
FLA s. 60CG 81

Subdivision 3 — Family dispute resolution

66H.	Attending family dispute resolution before
applying for Part 5 Order — FLA s. 60I 81
66I.	Family dispute resolution not attended
because of child abuse or family
violence — FLA s. 60J 86

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66J.	Court to take prompt action in relation to
allegations of child abuse or family
violence — FLA s. 60K 87

84. Sections 70A and 70B inserted 89

70A.	Presumption of equal shared parental responsibility when making parenting orders — FLA s. 61DA	89
70B.	Application of presumption of equal
shared parental responsibility after interim
parenting order made — FLA s. 61DB	90

85. Section 71A inserted 90

71A.	Application to Aboriginal or Torres Strait
Islander children — FLA s. 61F 90

86.	Section 73 amended	90
87.	Section 76 amended	91
88.	Section 78A replaced	93

78A. Obligations of advisers — FLA s. 63DA 93

89.	Section 79 amended	96
90.	Section 84 amended	96
91.	Section 85A inserted	99

85A.	Parenting orders subject to later parenting
plans — FLA s. 64D 99

92.	Section 86 amended	100
93.	Section 86A replaced	100

86A.	Child’s best interests paramount
consideration in making a parenting
order — FLA s. 65AA 100

94.	Section 89 amended	101
95.	Sections 89AA, 89AB, 89AC and 89AD inserted	101

89AA.	Court to consider child spending equal time or substantial and significant time with each parent in certain
circumstances — FLA s. 65DAA 101
89AB.	Court to have regard to parenting plans —
FLA s. 65DAB 103
89AC.	Effect of parenting order that provides for
shared parental responsibility — FLA
s. 65DAC 104
89AD.	No need to consult on issues that are not
major long-term issues — FLA s. 65DAE 104

96.	Section 90 repealed	105
97.	Section 92 amended	105
98.	Section 237A inserted	105

237A.	Costs where false allegation or statement
made — FLA s. 117AB 105

99. Transitional provisions 106

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Division 2 — Amendments about compliance

regime

100.	Section 89 amended	107
101.	Part 5 Division 13 replaced	107
Division 13 — Consequences of failure to comply

with orders, and other obligations, that affect

children

Subdivision 1 — Preliminary

205A.	Simplified outline of Division — FLA
s. 70NAA 107
205B.	Application of Division — FLA s. 70NAB 108
205C.	Meaning of “contravened an order” — FLA
s. 70NAC 108
205D.	Requirements taken to be included in
certain orders — FLA s. 70NAD 109
205E.	Meaning of “reasonable excuse for
contravening” an order — FLA s. 70NAE 109
205F.	Standard of proof — FLA s. 70NAF 112

Subdivision 2 — Court’s power to vary parenting

order

205G.	Variation of parenting order — FLA
s. 70NBA 113
205H.	Effect of parenting plan — FLA s. 70NBB 114

Subdivision 3 — Contravention alleged but not

established

205I.	Application of Subdivision — FLA
s. 70NCA 115
205J.	Costs — FLA s. 70NCB 115

Subdivision 4 — Contravention established but

reasonable excuse for contravention

205K.	Application of Subdivision — FLA
s. 70NDA 116
205L.	Order compensating person for time
lost — FLA s. 70NDB 117
205M.	Costs — FLA s. 70NDC 117

Subdivision 5 — Contravention without reasonable

excuse (less serious contravention)

205N.	Application of Subdivision — FLA
s. 70NEA 118
205O.	Powers of court — FLA s. 70NEB 120
205P.	Bonds — FLA s. 70NEC 123
205Q.	Duties of provider of post-separation
parenting program — FLA s. 70NED 124
205R.	Evidence — FLA s. 70NEF 125

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205S.	Court may make further orders in relation
to attendance at program — FLA
s. 70NEG 125

Subdivision 6 — Contravention without reasonable

excuse (more serious contravention)

205SA.	Application of Subdivision — FLA
s. 70NFA 126
205SB.	Powers of court — FLA s. 70NFB 127
205SC.	When court is empowered to make a
community service order — FLA s. 70NFC 130
205SD.	Variation and discharge of community
service orders — FLA s. 70NFD 132
205SE.	Bonds — FLA s. 70NFE 132
205SF.	Procedure for enforcing community
service orders or bonds — FLA s. 70NFF 133
205SG.	Sentences of imprisonment — FLA
s. 70NFG 134
205SH.	Relationship between Subdivision and
other laws — FLA s. 70NFH 136

102.	Section 237 amended	136
103.	Transitional provisions	137
Division 3 — Amendments about the conduct of

child-related proceedings

104.	Section 5 amended	137
105.	Part 5 Division 11A inserted	138
Division 11A — Principles for conducting

child-related proceedings

Subdivision 1 — Proceedings to which this Division

applies

202A.	Proceedings to which this Division
applies — FLA s. 69ZM 138

Subdivision 2 — Principles for conducting

child-related proceedings

202B.	Principles for conducting child-related
proceedings — FLA s. 69ZN 139
202C.	This Division also applies to proceedings
in Chambers — FLA s. 69ZO 140
202D.	Powers under this Division may be
exercised on court’s own initiative — FLA
s. 69ZP 140

Subdivision 3 — Duties and powers related to giving

effect to the principles

202E.	General duties — FLA s. 69ZQ	140
202F.	Power to make determinations, findings
and orders at any stage of proceedings —
FLA s. 69ZR	141

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202G. Use of family consultants — FLA s. 69ZS 142

Subdivision 4 — Matters relating to evidence 202H. Rules of evidence not to apply unless

court decides — FLA s. 69ZT 142

202I.	Evidence of family consultants — FLA
s. 69ZU 143
202J.	Evidence of children — FLA s. 69ZV 143
202K.	Evidence relating to child abuse or family
violence — FLA s. 69ZW 144
202L.	Court’s general duties and powers relating
to evidence — FLA s. 69ZX 146

106.	Section 214 repealed	147
107.	Transitional provision	148
Division 4 — Amendments about changes to

dispute resolution

Subdivision 1 — Amendments

108.	Section 5 amended	148
109.	Section 25 amended	150
110.	Section 33 amended	151
111.	Section 33A inserted	151

33A.	Engagement of consultants etc. — FLA
s. 38R 151

112.	Part 2 Division 4 replaced	152
Division 4 — Administration of Court’s family

services

34.             Director of Court Counselling has

functions of family consultants — FLA

s. 38BA 152
34A.	Director of Court Counselling may

delegate powers and functions that relate

to family consultants — FLA s. 38BB 152
34B.	Director of Court Counselling may give directions that relate to family services functions — FLA s. 38BC 153
34C.	Director of Court Counselling may

authorise officer or staff member to act as

family counsellor or family dispute

resolution practitioner — FLA s. 38BD 153
34D.	Director of Court Counselling may engage

persons to perform family counselling

services — FLA s. 38R(1A) 154

113.	Section 40 amended	154
114.	Section 46 amended	154
115.	Part 4 replaced by Parts 4, 4A, 4B and 4C	155

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Part 4 — Non-court based family services

Division 1 — Family counselling

47.             Meaning of “family counselling” — FLA

s. 10B 155

48.             Meaning of “family counsellor” — FLA

s. 10C 155

49.             Confidentiality of communications in family

counselling — FLA s. 10D 156

50.             Admissibility of communications in family

counselling and in referrals from family

counselling — FLA s. 10E 157

Division 2 — Family dispute resolution

51.             Meaning of “family dispute resolution” —

FLA s. 10F 158

52.             Meaning of “family dispute resolution

practitioner” — FLA s. 10G 159

53.             Confidentiality of communications in family

dispute resolution — FLA s. 10H 159

54.             Admissibility of communications in family

dispute resolution and in referrals from

family dispute resolution — FLA s. 10J 161

55.             Family dispute resolution practitioners

must comply with regulations — FLA

s. 10K 162

Division 3 — Arbitration

56.	Meaning of “arbitration” — FLA s. 10L	162
57.	Meaning of “arbitrator” — FLA s. 10M	163
58.	Arbitrators may charge fees for their
services — FLA s. 10N	163
59.	Immunity of arbitrators — FLA s. 10P	163

Part 4A — Family consultants

Division 1 — About family consultants

60.             Functions of family consultants — FLA

s. 11A 163

61.             Meaning of “family consultant” — FLA

s. 11B 164
62.	Admissibility of communications with family consultants and referrals from family consultants — FLA s. 11C 164

63.             Immunity of family consultants — FLA

s. 11D 165

Division 2 — Courts’ use of family consultants

64.             Courts to consider seeking advice from

family consultants — FLA s. 11E 165

65.             Court may order parties to attend

appointments with a family consultant —

FLA s. 11F 166

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65A.	Consequences of failure to comply with
order under section 65 — FLA s. 11G 167

Part 4B — Obligations to inform people about

non-court based family services and about

court’s processes and services

Division 1 — Introduction

65B. Objects of this Part — FLA s. 12A 167

Division 2 — Kind of information to be provided

65C.	Prescribed information about non-court
based family services and court’s
processes and services — FLA s. 12B 168
65D.	Prescribed information about
reconciliation — FLA s. 12C 169
65E.	Prescribed information about Part 5
proceedings —FLA s. 12D 169

Division 3 — Who must provide information and

when

65F.	Obligations on legal practitioners — FLA
s. 12E 169
65G.	Obligations on executive manager — FLA
s. 12F 170
65H.	Obligations on family counsellors, family
dispute resolution practitioners and
arbitrators — FLA s. 12G 171

Part 4C — Court’s powers in relation to court and

non-court based family services

Division 1 — Introduction

65I. Objects of this Part — FLA s. 13A 171

Division 2 — Help with reconciliation

65J.	Court to accommodate possible
reconciliations — FLA s. 13B 172

Division 3 — Referrals to family counselling, family

dispute resolution and other family services

65K.	Court may refer parties to family
counselling, family dispute resolution and
other family services — FLA s. 13C 173
65L.	Consequences of failure to comply with
order under section 65K — FLA s. 13D 174

Division 4 — Court’s role in relation to arbitration

of disputes

65M.	Court may refer Part 5A proceedings to
arbitration — FLA s. 13E 174
65N.	Court may make orders to facilitate
arbitration of certain disputes — FLA
s. 13F 175

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65O.	Court may determine questions of law
referred by arbitrator — FLA s. 13G 175
65P.	Awards made in arbitration may be
registered in court — FLA s. 13H 176
65Q.	Court can review registered awards —
FLA s. 13J 176
65R.	Court may set aside registered awards —
FLA s. 13K 176

116.	Heading to Part 5 Division 3 replaced	177
Division 3 — Reports relating to children under 18
117.	Section 72 replaced	178

72.             Court’s obligation to inform people to

whom orders under this Part apply about

family counselling, family dispute

resolution and other family services —

FLA s. 62B 178

118.	Section 73 amended	178
119.	Section 91 amended	179
120.	Section 95 amended	179
121.	Section 95A amended	180
122.	Section 95B inserted	180

95B.	Conditions for providers of post-separation
parenting programs — FLA s. 65LB 180

123.	Section 160 amended	182
124.	Section 217 amended	182
125.	Section 244 amended	182
126.	Section 245 amended	187
Subdivision 2 — Transitional provisions
127.	Interpretation	189
128.	Arbitration awards registered under section 60A or
60B are taken to be registered under section 65P	189
129.	Powers under Part 4C Division 4 of the Family
Court Act 1997 may be exercised in relation to
section 60A arbitration and private arbitration	189
130.	Request for counselling under section 52	190
131.	Orders under section 72(2)	190
132.	Reports under section 73	190
133.	Pre-parenting order counselling for the purposes of
section 72	191
134.	Supervision etc. of parenting orders	191
135.	Transitional regulations	191

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Division 5 — Amendments about representation

of child’s interests by independent

children’s lawyer

136.	Section 5 amended	192
137.	Part 5 Division 9 replaced	193
Division 9 — Independent representation of

child’s interests

164.           Court order for independent

representation of child’s interests — FLA

s. 68L 193

165.           Role of independent children’s lawyer —

FLA s. 68LA 194

166.           Order that child be made available for

examination — FLA s. 68M 196

138.	Section 195 amended	197
139.	Section 201 amended	197
140.	Section 237 amended	197
141.	Transitional provisions	198
Division 6 — Amendments about family

violence

142.         Part 5 Division 10 replaced and consequential

amendment 199

Division 10 — Family violence

173. Purposes of this Division — FLA s. 68N 199

174. Obligations of court making an order or

granting an injunction under this Act that is

inconsistent with an existing family

violence order — FLA s. 68P 200

175.	Relationship of order or injunction made under this Act with existing inconsistent family violence order — FLA s. 68Q	202
176.	Power of court making a family violence
order to revive, vary, discharge or
suspend an existing order, injunction or
arrangement under this Act — FLA s. 68R	203
177.	Application of Act and rules when
exercising section 176 power — FLA
s. 68S	205
178.	Special provisions relating to proceedings to make an interim (or interim variation of) family violence order — FLA s. 68T	206

143. Transitional provisions 207

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Division 7 — Amendments about removal of

references to “residence” and “contact”

144.	Section 5 amended	207
145.	Section 71 amended	208
146.	Section 76 amended	208
147.	Section 80 amended	209
148.	Section 92 amended	209
149.	Section 94 amended	210
150.	Heading to Part 5 Division 6 Subdivision 3
replaced	210
Subdivision 3 — General obligations created by

certain parenting orders

151.	Section 96 amended	210
152.	Sections 97 and 98 replaced by sections 97, 98 and
98A	211

97.             General obligations created by parenting

order that deals with whom a child spends

time with — FLA s. 65N 211

98.             General obligations created by parenting

order that deals with whom a child

communicates with — FLA s. 65NA 211
98A.	General obligations created by parenting

order that allocates parental

responsibility — FLA s. 65P 212

153.	Section 99 amended	212
154.	Section 106 amended	213
155.	Section 107 amended	213
156.	Section 108 amended	213
157.	Section 109 amended	213
158.	Section 110 amended	214
159.	Section 144 amended	214
160.	Section 149 amended	214
161.	Section 152 amended	215
162.	Section 198 amended	216
163.	Section 199 amended	216
164.	Section 205ZH amended	216
165.	Section 205ZV amended	217
166.	Section 206 amended	217
167.	Section 209 amended	217
168.	Section 235 amended	218
169.	Section 238 amended	218

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Division 8 — Amendments about the relocation

of defined terms used in Part 5 of the

Family Court Act 1997

170.	Section 5 amended	219
171.	Sections 6 and 7 replaced by sections 6, 7 and 7A	226

6.               Meaning of “member of the family” — FLA

s. 4(1AB) 226
7.	Meaning of “relative” — FLA s. 4(1AC) 227
7A.	Meaning of “major long-term issues” —
FLA s. 4(1) 228

172.	Section 33 amended	229
173.	Section 100 amended	229
174.	Section 134 repealed	229
175.	Section 142 repealed	229
176.	Section 203 repealed	229
177.	Section 220A amended	229
Part 4 — Amendments about the

interaction between family law

and bankruptcy law

178.	Section 5 amended	230
179.	Section 7B inserted	232

7B.	Meaning of “debtor subject to a personal
insolvency agreement” — FLA s. 4A 232

180.	Section 45 amended	232
181.	Section 205T amended	233
182.	Section 205W amended	233
183.	Section 205ZC amended	233
184.	Section 205ZCA inserted	234
205ZCA. Powers of court in maintenance

proceedings — FLA s. 74 234

185.	Section 205ZD amended	236
186.	Section 205ZG amended	238
187.	Section 205ZH amended	245
188.	Sections 205ZHE, 205ZHF, 205ZHG and 205ZHH
inserted	247
205ZHE. Notifying third parties about application —

FLA s. 79F 247

205ZHF. Notifying bankruptcy trustee etc. about

application under section 205ZA, 205ZCA,

205ZG or 205ZH — FLA s. 79G 247

205ZHG. Notifying court about bankruptcy etc. —

FLA s. 79H 247

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205ZHH. Notifying non-bankrupt de facto partner

about application under section 139A of

the Bankruptcy Act — FLA s. 79J 249

189.	Section 205ZI amended	250
190.	Section 205ZL amended and transitional provision	250
191.	Section 205ZP amended	251
192.	Section 205ZPA inserted	251

205ZPA. Need for separation declaration for certain provisions of financial agreement to take effect — FLA s. 90DA 251

193.	Section 222 amended	253
194.	Section 235A amended	254
195.	Transitional provisions	255
Part 5 — Child Support (Adoption of

Laws) Act 1990

196.	Purpose of Part	257
197.	The Act amended	258
198.	Section 3 amended	258
199.	Section 4 amended	258
Part 6 — Consequential amendments

to other Acts

Division 1 — Children and Community Services

Act 2004 amended

200.	The Act amended	259
201.	Section 104 amended	259
202.	Section 198 amended	260
203.	Section 238 amended	260
Division 2 — Guardianship and Administration

Act 1990 amended

204.	The Act amended	261
205.	Section 45 amended	261
Division 3 — Restraining Orders Act 1997

amended

206.	The Act amended	261
207.	Section 5 amended	262
208.	Section 62 amended	263

Family Legislation Amendment Act 2006

Contents

Western Australia

Family Legislation Amendment Act 2006

No. 35 of 2006

An Act to amend —

• the Family Court Act 1997;

• the Child Support (Adoption of Laws) Act 1990;

• the Children and Community Services Act 2004;

• the Guardianship and Administration Act 1990; and

• the Restraining Orders Act 1997,

and for related purposes.

[Assented to 4 July 2006]

The Parliament of Western Australia enacts as follows:

Family Legislation Amendment Act 2006

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1.             Short title

This is the Family Legislation Amendment Act 2006.

2.             Commencement

(1)

Subject to this section, this Act comes into operation on a day

fixed by proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

3.             The Act amended

Except in Parts 5 and 6, the amendments in this Act are to the

Family Court Act 1997*.

[* Reprint 2 as at 14 April 2006.]

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Removal of requirements to register parenting plans Division 1

s. 4

Part 2 — Miscellaneous amendments

Division 1 — Removal of requirements to register

parenting plans

4.             Section 5 amended

Section 5 is amended by inserting in the appropriate

alphabetical position —

“

“registered parenting plan” has the meaning given by section 76(6);

”.

5.             Section 74 amended

Section 74 is amended by deleting “and provides for their

registration in courts”.

6.             Section 75 replaced

Section 75 is repealed and the following section is inserted

instead —

“

75.           Parents encouraged to reach agreement — FLA s. 63B

The parents of a child are encouraged —

(a)	to agree about matters concerning the child; and
(b)	to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)	to use the legal system as a last resort rather than a first resort; and
(d)	to minimise the possibility of present and future conflict by using or reaching an agreement; and

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 1	Removal of requirements to register parenting plans
s. 7
(e) in reaching their agreement, to regard the best interests of the child as the paramount consideration.

”.

7.             Section 76 amended

After section 76(5) the following subsection is inserted —

“

(6) A registered parenting plan is a parenting plan —

(a)	that was registered in a court under section 79 as in force at any time before the commencement of section 7 of the Family Legislation Amendment Act 2006; and
(b)	that continued to be registered immediately before that section commenced.

”.

8.             Section 78 replaced

Section 78 is repealed and the following section is inserted

instead —

“

78.           Parenting plan may be varied or revoked by further written agreement — FLA s. 63D

A parenting plan, other than a plan to which

section 78B applies, may be varied or revoked by

agreement in writing between the parties to the plan.

”.

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Removal of requirements to register parenting plans Division 1

s. 9

9.             Section 78A replaced by sections 78A and 78B

Section 78A is repealed and the following sections are inserted

instead —

“

78A.

Explanation by person advising or assisting in the

making of a parenting plan — FLA s. 63DA

If a person who is —

(a)	a family and child counsellor; or
(b)	a family and child mediator; or

(c) a legal practitioner,

gives advice or assistance to people in connection with

the making by them of a parenting plan, the person

must explain to them, in language likely to be readily

understood by them, the availability of programs to

help people who experience difficulties in complying

with a parenting plan.

78B. Registered parenting plans — FLA s. 63DB

(1)	This section applies to a registered parenting plan.
(2)	A registered parenting plan continues in force until revoked in accordance with section 79, or set aside, varied or discharged as referred to in section 82.
(3)	A registered parenting plan cannot be varied.
(4)	Subject to subsection (5), a registered parenting plan may be revoked by agreement in writing between the parties to the plan.
(5)	An agreement revoking a registered parenting plan —

(a)	may, in accordance with the rules, be registered in a court, under section 79; and
(b)	does not have effect to revoke the plan until it is so registered.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 1	Removal of requirements to register parenting plans
s. 10

”.

10.           Section 79 replaced

Section 79 is repealed and the following section is inserted

instead —

“

79.           Registration of a revocation of a registered parenting plan — FLA s. 63E

(1)

This section applies to a registered parenting plan (the

“plan”).

(2)

To apply for registration of an agreement (the

“revocation agreement”) revoking a registered

parenting plan —

(a)	an application for registration of the revocation agreement must be lodged in accordance with the rules; and
(b)	the application must be accompanied by —

(i)      a copy of the revocation agreement; and

(ii)      the information required by the rules; and

(iii)      a statement, in relation to each party, that is to the effect that the party has been provided with independent legal

advice as to the meaning and effect of

the revocation agreement and that is

signed by the legal practitioner who

provided that advice.

(3)

A court may register the revocation agreement if it

considers it appropriate to do so having regard to the

best interests of the child to whom the agreement

relates.

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Removal of requirements to register parenting plans Division 1

s. 11

(4)

In determining whether it is appropriate to register the

revocation agreement, a court —

(a)

must have regard to the information and

(b) may, but is not required to, have regard to all or any of the matters set out in section 166(2).

”.

11.           Section 80 amended

Section 80(1) is repealed and the following subsection is

inserted instead —

“

(1)

This section applies to a registered parenting plan that

contains child welfare provisions.

”.

12.           Section 81 amended

Section 81(1) is repealed and the following subsection is

inserted instead —

“

(1)

This section applies if a registered parenting plan

contains child maintenance provisions.

”.

13.           Section 82 amended

(1) Before section 82(1) the following subsection is inserted —

“

(1a) This section applies to a registered parenting plan.

”.

(2)

Section 82(1) is amended by deleting “parenting plan registered

under section 79” and inserting instead —

“ registered parenting plan ”.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 1	Removal of requirements to register parenting plans
s. 14

(3)

Section 82(3) is amended by deleting paragraph (d) and

inserting instead —

“

(d) section 176, under which a court may revive, vary, discharge or suspend a registered parenting plan.

”.

14.           Section 174 amended

Section 174 is amended in the definition of “Division 10 contact

order” by deleting paragraph (b)(iv) and inserting instead —

“

(iv)      a registered parenting plan;

”.

15.           Section 205A amended

Section 205A is amended in the definition of “order under this

Act affecting children” as follows:

(a) by deleting paragraph (e) and inserting instead — “

(e) a registered parenting plan; or

”;

(b) after each of paragraphs (a) and (b) and paragraph (f)(i) by inserting —

“ or ”.

16.           Section 221 amended

Section 221(1)(b) is amended by deleting “parenting plan

registered under section 79” and inserting instead —

“ registered parenting plan ”.

Family Legislation Amendment Act 2006

Miscellaneous amendments Use of audio links, video links, etc. Part 2

Division 2

s. 17

Division 2 — Use of audio links, video links, etc.

17.           Section 5 amended

Section 5 is amended by inserting in the appropriate

alphabetical positions —

“

(FLA s. 4(1))

“audio link” means facilities (for example, telephone

facilities) that enable audio communication

between persons in different places;

(FLA s. 4(1))

“video link” means facilities (for example,

closed-circuit television facilities) that enable

audio and visual communication between persons

in different places;

”.

18.           Heading to Part 8 Division 1 inserted

Before section 212 the following heading is inserted in Part 8 —

“

Division 1 — General matters concerning procedure

and evidence

”.

19.           Part 8 Division 2 inserted

After section 219 the following Division is inserted in Part 8 —

“

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

and give submissions etc.

219AA. Evidence Act 1906 not excluded

This Division is in addition to and does not limit the

operation of the Evidence Act 1906.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 2	Use of audio links, video links, etc.
s. 19

219AB. Testimony — FLA s. 102C

(1)

A court or a judge may, for the purposes of any

proceedings, direct or allow testimony to be given by

video link, audio link or other appropriate means.

(2)

The testimony must be given on oath or affirmation

unless —

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

(b) either —

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

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

and

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

(3)

If the testimony is given otherwise than on oath or

affirmation, the court or a judge must give the

testimony such weight as the court or the judge thinks

fit in the circumstances.

(4)

The power conferred on the court or a judge by

subsection (1) may be exercised —

(a)	on the application of a party to the proceedings concerned; or
(b)	on the court’s own initiative or on the judge’s own initiative, as the case may be.

Family Legislation Amendment Act 2006

Miscellaneous amendments Use of audio links, video links, etc. Part 2

Division 2

s. 19

(5)

This section applies whether the person giving

testimony is in or outside Australia, but does not allow

testimony to be given by a person who is in

New Zealand.

219AC. Appearance of persons — FLA s. 102D

(1)

A court or a judge may, for the purposes of any

proceedings, direct or allow a person to appear before

the court or the judge by way of video link, audio link

or other appropriate means.

(2)

The power conferred on a court or a judge by

subsection (1) may be exercised —

(a)	on the application of a party to the proceedings concerned; or
(b)	on the court’s own initiative or on the judge’s own initiative, as the case may be.

(3)

This section applies whether the person appearing is in

or outside Australia, but does not apply if the person

appearing is in New Zealand.

219AD. Making of submissions — FLA s. 102E

(1)

A court or a judge may, for the purposes of any proceedings, direct or allow a person to make a submission to the court or the judge by way of video

link, audio link or other appropriate means.

(2)

The power conferred on a court or a judge by

subsection (1) may be exercised —

(a)	on the application of a party to the proceedings concerned; or
(b)	on the court’s own initiative or on the judge’s own initiative, as the case may be.

(3)

This section applies whether the person making the

submission is in or outside Australia, but does not

Family Legislation Amendment Act 2006

Part 2

Miscellaneous amendments

Division 2

Use of audio links, video links, etc.

s. 19

apply if the person making the submission is in

New Zealand.

219AE. Conditions for use of links — FLA s. 102F

(1)

A court or a judge must not exercise the power

conferred by section 219AB(1), 219AC(1) or

219AD(1) in relation to a video link unless the court or

the judge is satisfied that the following conditions are

met in relation to the video link —

(a)

the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see

and hear the person (the remote person) who

is —

giving the testimony; or

(ii) appearing; or

(iii) making the submission,

(i)

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

and

(b)	the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom; and
(c)	such other conditions (if any) as are prescribed by the rules in relation to the video link; and
(d)	such other conditions (if any) as are imposed by the court or a judge.

(2) The conditions that may be prescribed by the rules in accordance with subsection (1)(c) include conditions relating to —

(a) the form of the video link; and

Family Legislation Amendment Act 2006

Miscellaneous amendments Use of audio links, video links, etc. Part 2

Division 2

s. 19

(b)	the equipment, or class of equipment, used to establish the link; and
(c)	the layout of cameras; and
(d)	the standard of transmission; and
(e)	the speed of transmission; and
(f)	the quality of communication.

(3)

A court or a judge must not exercise the power

conferred by section 219AB(1), 219AC(1) or

219AD(1) in relation to an audio link unless the court

or a judge is satisfied that the following conditions are

met in relation to the audio link —

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

giving the testimony; or

(ii) appearing; or

(iii) making the submission,

(i)

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

and

(b)

is equipped with facilities (for example,

loudspeakers) that enable all eligible persons

present in that place to hear each eligible

the place at which the remote person is located place where the court or the judge is sitting; and

(c)	such other conditions (if any) as are prescribed by the rules in relation to the audio link; and
(d)	such other conditions (if any) as are imposed by the court or a judge.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 2	Use of audio links, video links, etc.
s. 19

(4) The conditions that may be prescribed by the rules in accordance with subsection (3)(c) include conditions relating to —

(a)	the form of the audio link; and
(b)	the equipment, or class of equipment, used to establish the audio link; and
(c)	the standard of transmission; and

(d) the speed of transmission; and (e) the quality of communication.

(5)

A court or a judge must not exercise the power

conferred by section 219AB(1), 219AC(1) or

219AD(1) in relation to appropriate means other than

video link or audio link unless the court or the judge is

satisfied that the following conditions are met in

relation to that means —

(a)	the conditions (if any) as are prescribed by the rules in relation to that other appropriate means; and
(b)	such other conditions (if any) as are imposed by the court or the judge.

(6)

For the purposes of the application of this section to

particular proceedings, eligible persons are such

persons as the court or the judge considers should be

treated as eligible persons for the purposes of the

proceedings.

(7)

In this section —

“courtroom” means the courtroom or other place

where the judge or court is sitting.

219AF. Putting documents to a person — FLA s. 102G

(1)

This section applies if, in the course of an examination

or appearance of a person by video link, audio link or

other appropriate means in accordance with this

Family Legislation Amendment Act 2006

Miscellaneous amendments Use of audio links, video links, etc. Part 2

Division 2

s. 19

Division, it is necessary to put a document to the person.

(2)

A court or a judge may direct or allow the document to

be put to the person —

(a) if the document is physically present in the courtroom or other place where the court or the judge is sitting —

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

(ii)      by causing the transmitted copy to be put to the person;

or

(b) if the document is physically present in the place where the person is located —

(i)      by causing the document to be put to the person; and

(ii)      by causing a copy of the document to be transmitted to the courtroom or other place where the court or the judge is sitting.

219AG. Administration of oaths and affirmations —

FLA s. 102J

An oath to be sworn, or an affirmation to be made, by a person (the “remote person”) who is to give testimony by video link, audio link or other appropriate means in

accordance with this Division may be administered —

(a)

case may be, in a way that, as nearly as

practicable, corresponds to the way in which

by means of the video link or audio link, as the the remote person were to give testimony in the

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 2	Use of audio links, video links, etc.
s. 19

courtroom or other place where the court or the

judge is sitting; or

(b) if the court or the judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation, by that other person.

219AH. Expenses — FLA s. 102K

(1)

A court or a judge may make such orders as the court

or the judge thinks just for the payment of expenses,

including the court’s expenses, incurred in connection

with —

(a)	the giving of testimony by video link, audio link or other appropriate means in accordance with this Division; or
(b)	the appearance of a person by video link, audio link or other appropriate means in accordance with this Division; or
(c)	the making of submissions by video link, audio link or other appropriate means in accordance with this Division.

(2) Subsection (1) has effect subject to the regulations.

219AI.

New Zealand proceedings — FLA s. 102L

This Division does not affect the operation of the

Evidence and Procedure (New Zealand) Act 1994 of

the Commonwealth.

”.

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Parenting compliance regime Division 3

s. 20

20.           Section 244 amended

Section 244(3) is amended as follows:

(a) by inserting after paragraph (m) —

“

(n) for the purposes of Part 8 Division 2, providing for the conditions relating to the use of video links, audio links and other appropriate means of communication; and

”;

(b) after each of paragraphs (a) to (m) and (o) to (zaa) by inserting —

“ and ”.

21.           Transitional provision

The Family Court Act 1997, as amended by this Division,

applies in relation to proceedings instituted in a court (within

the meaning of that Act section 8) before, on or after the

commencement of this Division.

Division 3 — Parenting compliance regime

22.           Section 95A inserted

After section 95 the following section is inserted —

“

95A.

Court may order attendance at a post-separation

parenting program — FLA s. 65LA

(1)

In proceedings for a parenting order, the court may also

make an order in respect of any party to the

proceedings as follows —

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

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 3	Parenting compliance regime
s. 23
(b) if a party so attending before a provider is assessed by the provider to be suitable to attend a program or a part of a program and the provider nominates a particular program for the party to attend, directing the party to attend that program or that part of that program.

(2)

In deciding whether to make a particular order under

subsection (1), a court must regard the best interests of

the child as the paramount consideration.

(3)

In this section —

“post-separation parenting program” or “program”

has the same meaning as in section 70NB of the

Family Law Act;

“post-separation parenting program provider” or

“provider” means a provider of a program that is included in a list of providers compiled under the Family Law Act;

“proceedings for a parenting order” includes —

(a)	proceedings for the enforcement of a parenting order; and
(b)	any other proceedings in which a contravention of a parenting order is alleged.

”.

23.           Section 102 amended

Section 102(1)(b) is amended by deleting “section 226” and

inserting instead —

“ Division 13 ”.

24.           Section 205A amended

(1) Section 205A is amended by deleting the definition of “ “appropriate post-separation parenting program” or “appropriate program” ”.

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Parenting compliance regime Division 3

s. 24

(2)

Section 205A is amended in the definition of “order under this

Act affecting children” as follows:

(a) by deleting paragraph (c) and inserting instead — “

(c) an undertaking given to, and accepted by, the court —

(i)

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

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

or

”.

(b) by deleting paragraph (d) and inserting instead —

“

(d) a subpoena issued under the rules in proceedings under this Act —

(i)

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

(ii)      that relates to a bond referred to in paragraph (f),

being a subpoena issued to a party to the

proceedings for the order, injunction or

bond, as the case may be; or

”.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 3	Parenting compliance regime
s. 25

(c) by inserting after paragraph (e) —

“

(ea)

a community service order made under

section 205L(5)(a); or

”.

(3)

Section 205A is amended by inserting in the appropriate

alphabetical position —

“

“post-separation parenting program provider” or

“provider” means a provider of a program that is included in a list of providers compiled under the Family Law Act;

”.

(4)

Section 205A is amended by deleting the definition of “primary

order” and inserting instead —

“

“primary order” means an order under this Act

affecting children and includes such an order as

varied;

”.

25.           Section 205G amended

(1) Section 205G(1) is amended as follows:

(a) in paragraph (a) by deleting “an order under this Act affecting children (the “primary order”)” and inserting instead —

“ a primary order ”;

(b) by deleting paragraph (d) and inserting instead —

“

(d) either subsection (1a) or (1b) applies,

”;

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Parenting compliance regime Division 3

s. 25

(c) after each of paragraphs (a) and (b) by inserting —

“ and ”.

(2) After section 205G(1) the following subsections are inserted —

“

(1a)

For the purposes of subsection (1)(d), this subsection

applies if no court has previously —

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

(b) under section 205H(1)(c), adjourned

proceedings in respect of a contravention by the

person of the primary order.

(1b)

For the purposes of subsection (1)(d), this subsection

applies if —

(a) a court has previously —

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

(ii) under section 205H(1)(c), adjourned

proceedings in respect of a

contravention by the person of the

primary order;

and

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

”.

(3)

Section 205G(2) is amended by deleting “subsection (1)(d)(i),”

and inserting instead —

“ subsection (1a), ”.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 3	Parenting compliance regime
s. 26

26.           Section 205H amended

(1) Section 205H(1)(a) is amended by deleting subparagraphs (i) and (ii) and inserting the following subparagraphs instead —

“

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

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

”.

(2)	Section 205H(1)(b) is amended by inserting after “contact” —
“ or residence ”.
(3)	After section 205H(1)(b) the following paragraph is inserted —

“

(ba)

make any other order varying the order so

contravened;

”.

(4)	Section 205H(4) is amended by deleting “the provider of a program for assessment, or is to attend a program, the court must cause the provider of the program” and inserting
instead —

“

a provider for assessment, the court must cause the

provider

”.

Family Legislation Amendment Act 2006

Miscellaneous amendments Part 2

Parenting compliance regime Division 3

s. 27

27.           Section 205K replaced

Section 205K is repealed and the following section is inserted

instead —

“

205K.

Court may make further orders in relation to

attendance at program — FLA s. 70NIA

A court may make such orders as it considers

appropriate, other than the orders referred to in

section 205L(5), in respect of a person, if —

(a)	it appears to the court that the person has not attended before a provider that the person was ordered to attend before; or
(b)	it appears to the court that the person has not attended a program or a part of a program that the person was ordered to attend; or
(c)	the person was assessed as unsuitable to attend a program.

”.

28.           Section 205L amended

(1) Section 205L(1) is amended as follows:

(a) in paragraph (a) by deleting “an order under this Act affecting children (the “primary order”)” and inserting instead —

“ a primary order ”;

(b) by deleting paragraph (d) and inserting instead —

“

(d) either subsection (1a) or (1b) applies.

”;

(c) after each of paragraphs (a) and (b) by inserting —

“ and ”.

Family Legislation Amendment Act 2006

Part 2	Miscellaneous amendments
Division 3	Parenting compliance regime
s. 28

(2) After section 205L(1) the following subsections are inserted —

“

(1a)

For the purposes of subsection (1)(d), this subsection

applies if —

(a) no court has previously —

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

(ii) under section 205H(1)(c), adjourned

proceedings in respect of contravention

by the person of the primary order;

and

(b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her

obligations under the primary order.

(1b)

For the purposes of subsection (1)(d), this subsection

applies if a court has previously —

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

(b) under section 205H(1)(c), adjourned

proceedings in respect of a contravention by the

person of the primary order.

”.

(3) After section 205L(7)(a) the following paragraph is inserted —

“

(ab)

the person who contravened the parenting order

did so after having refused or failed to attend

before a provider that the person was ordered to

attend before;

”.

Family Legislation Amendment Act 2006

Miscellaneous amendments Setting aside financial agreements Part 2

Division 4

s. 29

(4)	Section 205L(7)(b) is amended by deleting “appropriate”.
Division 4 — Setting aside financial agreements

29.           Section 205ZV amended

(1)

Section 205ZV(1) is amended by inserting after “A court

may” —

“

, on an application by a person who was a party to the financial agreement, or by any other interested person,

”.

(2)

After section 205ZV(1)(a) the following paragraph is

inserted —

“

(aa)

either party to the agreement entered into the

agreement —

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

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

or

”.

(3)

After each of section 205ZV(1)(a), (b) and (c) by inserting —

“ or ”.

(4)

After section 205ZV(2) the following subsections are

inserted —

“

(3) A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or

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Division 4

Setting aside financial agreements

s. 29

orders (including an order for the transfer of property)

as it considers just and equitable for the purpose of

preserving or adjusting the rights of persons who were

parties to that financial agreement and any other

interested persons.

(4)

An order under subsection (1) or (3) may, after the

death of a party to the proceedings in which the order

was made, be enforced on behalf of, or against, as the

case may be, the estate of the deceased party.

(5)

If a party to proceedings under this section dies before

the proceedings are completed —

(a)	the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the rules may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b)	if the court is of the opinion —

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

(ii)      that it is still appropriate to exercise those powers,

the court may make any order that it could have

made under subsection (1) or (3); and

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

(6)	In this section —
“creditor” —

(a) in subsection (1)(aa), in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party

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s. 30

as being reasonably likely to become a

creditor of the party; and

(b)

in paragraphs (b) and (c) of the definition of “interested person” includes a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court

as being reasonably likely to become a

creditor of either of the parties to the

financial agreement;

“government body” means —

(a)	the Commonwealth, a State or a Territory; or
(b)	an official or authority of the Commonwealth, a State or a Territory;

“interested person”, in relation to proceedings for the

setting aside of a financial agreement on the

grounds specified in subsection (1)(aa) includes —

(a)	either or both of the parties to the financial agreement; or
(b)	a creditor of either of those parties; or
(c)	a government body acting in the interests of a creditor of either of those parties.

”.

30.           Transitional provisions

(1)

Subject to subsection (2), the Family Court Act 1997 as

amended by this Division, applies in relation to financial

agreements (within the meaning of that Act section 205T) made

at any time, whether before, on or after the commencement of

this Division.

(2)

The Family Court Act 1997 as amended by this Division, does

not apply to proceedings that were instituted under that Act

before the commencement of this Division.

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Division 5	Other amendments relating to financial agreements
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Division 5 — Other amendments relating to financial

agreements

31.           Section 205ZR amended

Section 205ZR(1) is repealed and the following subsections are

inserted instead —

“

(1)

No provision of a financial agreement excludes or

limits the power of a court to make an order in relation

to the maintenance of a de facto partner if

subsection (1a) applies.

(1a)

This subsection applies if the court is satisfied that,

when the agreement came into effect, the

circumstances of the party were such that, taking into

account the terms and effect of the agreement, the party

was unable to support himself or herself without an

income tested pension, allowance or benefit.

”.

32.           Section 205ZS amended

Section 205ZS(1) is amended as follows:

(a) by deleting paragraph (b)(ii), (iii) and (iv) and “and” after subparagraph (iii) and inserting instead —

“

and

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

and

”;

(b) after each of paragraphs (a) and (c) by inserting —

“ and ”.

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33.           Section 205ZU amended

Section 205ZU(2) is amended as follows:

(a) by deleting paragraph (b)(ii), (iii) and (iv) and inserting instead —

“

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

and

”;

(b) after each of paragraphs (a) and (c) by inserting —

“ and ”.

Division 6 — Orders and injunctions binding third parties

34.           Division 2A inserted in Part 5A

After Part 5A Division 2 the following Division is inserted —

“

Division 2A — Orders and injunctions binding

third parties Subdivision 1 — Introductory

205ZLA. Object of Division — FLA s. 90AA

The object of this Division is to allow a court, in

relation to the property of a de facto partner, to —

(a)	make an order under section 205ZG or 235A; or
(b)

grant an injunction under section 235A,

that is directed to, or alters the rights, liabilities or

property interests of a third person.

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205ZLB. Definition — FLA s. 90AB

In this Division —

“third party”, in relation to a de facto relationship,

means a person who is not one of the de facto

partners.

205ZLC. This Division overrides other laws, trust deeds,

etc. — FLA s. 90AC

(1)

This Division has effect despite anything to the

contrary in any of the following (whether made before

or after the commencement of this Division) —

(a)	any other law (whether written or unwritten);
(b)

anything in a trust deed or other instrument. Without limiting subsection (1), nothing done in compliance with this Division by a third party in relation to a de facto relationship is to be treated as

(2)

resulting in a contravention of a law or instrument

referred to in subsection (1).

205ZLD. Extended meaning of “property” — FLA s. 90AD

(1)

For the purposes of this Division, a debt owed by a

de facto partner is to be treated as property.

(2)

For the purposes of —

(a)	making an order under section 205ZG or 235A; or
(b)	granting an injunction under section 235A,

“property” includes a debt owed by a de facto partner.

205ZLE. Other provisions of this Act not affected by this

Division — FLA s. 90ADA

This Division does not affect the operation of any other

provision of this Act.

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Subdivision 2 — Orders under section 205ZG

205ZLF. Court may make an order under section 205ZG

binding a third party — FLA s. 90AE

(1)

In proceedings under section 205ZG, a court may make

any of the following orders —

(a)

an order directed to a creditor of the de facto partners in a de facto relationship to substitute one de facto partner for both partners in relation to the debt owed to the creditor;

(b)

an order directed to a creditor of one de facto partner to substitute the other de facto partner, or both de facto partners for that de facto

partner in relation to the debt owed to the

creditor;

(c)

partners in a de facto relationship that the

an order directed to a creditor of the de facto proportion of the debt owed to the creditor than the proportion the de facto partners are liable to before the order is made;

(d) an order directed to a director of a company or to a company to register a transfer of shares from one de facto partner in a de facto relationship to the other de facto partner.

(2)

In proceedings under section 205ZG, a court may make

any other order that —

(a)	directs a third party to do a thing in relation to the property of a de facto partner; or
(b)	alters the rights, liabilities or property interests of a third party in relation to a de facto relationship.

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Division 6	Orders and injunctions binding third parties
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(3)

The court may make an order under subsection (1) or

(2) only if —

(a)	the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the de facto partners in a de facto relationship; and
(b)	if the order concerns a debt of a de facto partner, it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and
(c)	the third party has been accorded procedural fairness in relation to the making of the order; and
(d)	the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and
(e)

the court is satisfied that the order takes into subsection (4).

(4) The matters are as follows —

(a)	the taxation effect (if any) of the order on the de facto partners;
(b)	the taxation effect (if any) of the order on the third party;
(c)	the social security effect (if any) of the order on the de facto partners;
(d)	the third party’s administrative costs in relation to the order;
(e)	if the order concerns a debt of a de facto partner, the capacity of a de facto partner to repay the debt after the order is made;

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(f)	the economic, legal or other capacity of the third party to comply with the order;
(g)	if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other

matters, those matters;

(h) any other matter that the court considers relevant.

Subdivision 3 — Orders or injunctions under section 235A

205ZLG. Court may make an order or injunction under

section 235A binding a third party — FLA s. 90AF

(1) In proceedings under section 235A a court may —

(a)	make an order restraining a person from repossessing property of a de facto partner; or
(b)

grant an injunction restraining a person from de facto partner.

(2)

In proceedings under section 235A, a court may make

any other order, or grant any other injunction that —

(a)	directs a third party to do a thing in relation to the property of a de facto partner; or
(b)	alters the rights, liabilities or property interests of a third party in relation to the de facto relationship.

(3)

A court may make an order or grant an injunction

under subsection (1) or (2) only if —

(a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between de facto partners; and

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(b) de facto partner, it is not foreseeable at the time

the order or injunction concerns a debt of a granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

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

for an injunction or order under all the circumstances, it is proper to make the order or grant the injunction; and

(e)	for an injunction under section 235A(2), the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and
(f)	the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

(4) The matters are as follows —

(a)	the taxation effect (if any) of the order or injunction on the de factor partners;
(b)	the taxation effect (if any) of the order or injunction on the third party;
(c)	the social security effect (if any) of the order or injunction on the de facto partners;
(d)	the third party’s administrative costs in relation to the order or injunction;
(e)

if the order or injunction concerns a debt of a partner to repay the debt after the order is made or the injunction is granted;

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(f)

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

(g)

if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the

third party raises any other matters, those

matters;

(h)

any other matter that the court considers relevant.

Subdivision 4 — Other matters

205ZLH. Orders and injunctions binding on trustees —

FLA s. 90AG

If an order or injunction binds a person in the capacity

of trustee in relation to property, then the order or

injunction is also binding (by force of this section) on

any person who subsequently becomes the trustee.

205ZLI. Protection for a third party — FLA s. 90AH

A third party in relation to a de facto relationship is not

liable for loss or damage suffered by any person

because of things done (or not done) by the third party

in good faith in reliance on an order or injunction made

or granted by a court in accordance with this Division.

205ZLJ. Service of documents on a third party —

FLA s. 90AI

(1)

If a document is required or permitted to be served for

the purposes of this Division on a third party in relation

to a de facto relationship, the document may be served

in any of the ways in which a document may be served

under the rules.

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Division 6	Orders and injunctions binding third parties
s. 34

(2)

Subsection (1) is in addition to any other method of

service permitted by law.

205ZLK. Expenses of third party — FLA s. 90AJ

(1) Subsection (2) applies if —

(a)	a court has made an order or granted an injunction in accordance with this Division in relation to a de facto relationship; and
(b)	a third party in relation to the de facto relationship has incurred expense as a necessary result of the order or injunction.

(2)

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

injunction.

(3)

In deciding whether to make an order under

subsection (2), subject to what a court considers just, a

court must take into account the principle that the

parties to the de facto relationship should bear the

reasonable expenses of the third party equally.

(4)

The regulations may provide, in situations where a

court has not made an order under subsection (2) —

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

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

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

”.

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s. 35

35.           Transitional provisions

(1)	In this section —
“commencement” means the day on which this Division comes

into operation;

“section 205ZG order” means an order (other than an interim

or a partial order) made under section 205ZG of the Family

Court Act 1997.

(2)

Subject to this section, the Family Court Act 1997, as amended by this Division, applies in relation to all de facto relationships to which that Act otherwise applies.

(3)

Subject to subsection (4), the Family Court Act 1997, as amended by this Division, does not apply in relation to a de facto relationship if a section 205ZG order is in force in

relation to the relationship at the commencement.

(4)

If a section 205ZG order that is in force at the commencement is

later set aside under section 205ZH(1)(a), (b), (c) or (d) of the

Family Court Act 1997, then the Family Court Act 1997, as

amended by this Division, applies in relation to the de facto

relationship in relation to which the order was in force, only

from the time the order is set aside.

in relation to the bankrupt partner, being

proceedings arising out of the de facto

relationship.

”.

183.         Section 205ZC amended

(1) Section 205ZC is amended as follows:

(a) by inserting before “A de facto partner” the subsection designation “(1)”;

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(b) by deleting “party” and inserting instead —

“ partner ”.

(2)

At the end of section 205ZC the following subsection is

inserted —

“

(2)

The liability under subsection (1) of a bankrupt

de facto partner to maintain the other de facto partner

may be satisfied, in whole or in part, by way of the

transfer of vested bankruptcy property in relation to the

bankrupt partner if the court makes an order under this

Part for the transfer.

”.

184.         Section 205ZCA inserted

After section 205ZC the following section is inserted —

“

205ZCA. Powers of court in maintenance proceedings —

FLA s. 74

(1)

In proceedings with respect to the maintenance of a

de facto partner, the court may make such order as it

considers proper for the provision of maintenance in

accordance with this Division.

(2) If —

(a)	an application is made for an order under this section in proceedings between de facto partners with respect to the maintenance of one of the partners; and
(b)	either of the following subparagraphs apply to one of the de facto partners —

(i)      when the application was made, the de facto partner was a bankrupt; and

(ii)      after the application was made but before the proceedings are finally

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determined, the de facto partner became

a bankrupt;

and

(c)	the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)	the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings,

the court must join the bankruptcy trustee as a party to

the proceedings.

(3)

If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a de facto partner, then, except with the leave of the court, the bankrupt de facto

partner is not entitled to make a submission to the court

in connection with any vested bankruptcy property in

relation to the bankrupt party.

(4)

The court must not grant leave under subsection (3)

unless the court is satisfied that there are exceptional

circumstances.

(5) If —

(a)	an application is made for an order under this section in proceedings between de facto partners with respect to the maintenance of one of the de facto partners; and
(b)	either of the following subparagraphs apply to one of the de facto partners (the “debtor party”) —

(i)

when the application was made, the a personal insolvency agreement; or

(ii)      after the application was made but before it is finally determined, the

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de facto partner becomes a debtor

subject to a personal insolvency

agreement;

and

(c)	the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d)	the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings,

the court must join the trustee of the agreement as a

party to the proceedings.

(6)

If the trustee of a personal insolvency agreement is a

party to proceedings with respect to the maintenance of

a de facto partner then, except with the leave of the

court, the de facto partner who is the debtor subject to

the agreement is not entitled to make a submission to

the court in connection with any property subject to the

agreement.

(7)

The court must not grant leave under subsection (6)

unless the court is satisfied that there are exceptional

circumstances.

(8)

For the purposes of subsections (2) and (5), an

application for an order under this section is taken to be

finally determined when —

(a)	the application is withdrawn or dismissed; or
(b)	an order (other than an interim order) is made as a result of the application.

”.

185.         Section 205ZD amended

(1) Section 205ZD(1) is repealed.

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(2) Section 205ZD(3) is amended as follows:

(a) in paragraph (d)(ii) by deleting “party” and inserting instead —

“ partner ”;

(b) in paragraph (e) by deleting “party” and inserting instead —

“ de facto partner ”;

(c) in paragraph (f) by deleting “party” in both places where it occurs and inserting instead —

“ de facto partner ”;

(d) in paragraph (h) —

(i)      by deleting “party” in the first place where it occurs and inserting instead —

“ de facto partner ”; and

(ii)      by deleting “that party” in both places where it occurs and inserting instead —

“ that partner ”;

(e) after paragraph (h) by inserting —

“

(ha)

the effect of any proposed order on the ability

of a creditor of a de facto partner to recover the

creditor’s debt, so far as that effect is relevant;

and

”;

(f) in paragraph (i) by deleting “party” in both places where it occurs and inserting instead —

“ de facto partner ”;

(g) in paragraph (j) by deleting “party” and inserting instead —

“ de facto partner ”;

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(h) in paragraph (k) by deleting “party” and inserting instead —

“ de facto partner ”;

(i)      in paragraph (l) by deleting “party” and inserting instead —

“ de facto partner ”;

(j)

in paragraph (m) by deleting “section 205ZG in relation “

section 205ZG in relation to —

(i)      the property of the de facto partners; or

(ii)      vested bankruptcy property in relation to a bankrupt de facto partner;

”;

(k) in paragraph (p) by deleting “parties.” and inserting instead —

“ de facto partners. ”;

(l) after each of paragraphs (a) to (h) and (i) to (n) by inserting —

“ and ”.

186.         Section 205ZG amended

(1)

Section 205ZG(1) is repealed and the following subsection is

inserted instead —

“

(1)

In property settlement proceedings, the court may

make such order as it considers appropriate —

(a) in the case of proceedings with respect to the property of the de facto partners, or either of them, altering the interests of the partners in the

property; or

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(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt de facto partner, altering the interests of the bankruptcy trustee in the vested bankruptcy property,

including —

(c)	an order for a settlement of property in substitution for any interest in the property; and
(d)	an order requiring —

(i)      either or both of the de facto partners; or

the relevant bankruptcy trustee (if any),

to make, for the benefit of either or both of the

de facto partners or a child of the de facto

partner, such settlement or transfer of property

as the court determines.

(ii)

”.

(2) Section 205ZG(2) is amended as follows:

(a) by deleting “proceedings with respect to the property of de facto partners, or either of them” and inserting instead —

“ property settlement proceedings ”;

(b) by deleting “a partner to the proceedings,” and inserting instead —

“ one of the de facto partners, ”.

(3)

Section 205ZG(4) is amended by deleting “proceedings with

respect to any property of de facto partners, or either of them,”

and inserting instead —

“ property settlement proceedings ”.

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(4) Section 205ZG(5) is amended as follows:

(a) by deleting “proceedings with respect to the property of the de facto partners, or either of them,” and inserting instead —

“ property settlement proceedings ”;

(b) by deleting paragraph (b) and inserting the following paragraph instead —

“

(b) that an order that the court could make with respect to —

(i)      the property of the de facto partners, or either of them; or

(ii)      the vested bankruptcy property in relation to a bankrupt de facto partner,

if that significant change in financial

circumstances occurs is more likely to do

justice as between the de facto partners than an

order that the court could make immediately

with respect to —

(iii)      the property of the de facto partners, or either of them; or

(iv) “ or the relevant bankruptcy trustee (if any) ”; the vested bankruptcy property in relation to a bankrupt de facto partner,

”;

(c)	by inserting after “either de facto partner” —
(d)	by inserting after “that de facto partner” —

“

or the relevant bankruptcy trustee, as the case may be

”.

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(5)

Section 205ZG(6) is amended by deleting “with respect to any

of the property of the de facto partners or of either of them.” and

inserting instead —

“

with respect to —

(a)	any of the property of the de facto partners, or of either of them; or
(b)	any of the vested bankruptcy property in relation to a bankrupt de facto partner.

”.

(6) Section 205ZG(8) is amended as follows:

(a) by deleting “proceedings with respect to the property of de facto partners, or either of them are completed, either party to the proceedings” and inserting instead —

“

property settlement proceedings are completed, either

de facto partner

”;

(b) after paragraph (a) by inserting —

“ and ”;

(c) property of the de facto partners, or either of them; and”

in paragraph (b) by deleting “with respect to any of the “

with respect to —

(iii)      any of the property of the de facto partners, or either of them; or

(iv)      any of the vested bankruptcy property in relation to a bankrupt de facto partner;

and

”.

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(7)

Section 205ZG(9) is amended by deleting “proceedings with respect to the property of de facto partners, or either of them” and inserting instead —

“ property settlement proceedings ”.

(8)

After section 205ZG(9) the following subsections are

inserted —

“

(10)

The following are entitled to become a party to

proceedings in which an application is made for an

order under this section —

(a)	a creditor of a party to the proceedings if the creditor may be able to recover his or her debt if the order were made;
(b)	any other person whose interests would be affected by the making of the order.

(11)

Subsection (10) does not apply to a creditor of a party

to the proceedings —

(a)	if the party is a bankrupt, to the extent to which the debt is a provable debt (within the meaning of the Bankruptcy Act); or
(b)	if the party is a debtor subject to a personal insolvency agreement, to the extent to which the debt is covered by the personal insolvency agreement.

(12) If —

(a)

an application is made for an order under this partners with respect to the property of the de facto partners, or either of them; and

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(b) either of the following subparagraphs apply to a de facto partner —

(i)      when the application was made, the partner was a bankrupt;

(ii)      after the application was made but before it is finally determined, the partner became a bankrupt;

and

(c)	the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)	the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings,

the court must join the bankruptcy trustee as a party to

the proceedings.

(13)

If a bankruptcy trustee is a party to property settlement

proceedings, then, except with the leave of the court,

the bankrupt de facto partner is not entitled to make a

submission to the court in connection with any vested

bankruptcy property in relation to the bankrupt party.

(14)

The court must not grant leave under subsection (13) unless the court is satisfied that there are exceptional circumstances.

(15) If —

(a)

an application is made for an order under this partners with respect to the property of the de facto partners, or either of them; and

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(b) either of the following subparagraphs apply to a de facto partner (the “debtor party”) —

(i)

when the application was made, the a personal insolvency agreement; or

(ii)      after the application was made but before it is finally determined, the de facto partner becomes a debtor subject to a personal insolvency

agreement;

and

(c)	the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d)	the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings,

the court must join the trustee of the agreement as a

party to the proceedings.

(16)

If the trustee of a personal insolvency agreement is a party to property settlement proceedings, then, except with the leave of the court, the de facto partner who is the debtor subject to the agreement is not entitled to

make a submission to the court in connection with any

property subject to the agreement.

(17)

The court must not grant leave under subsection (16) unless the court is satisfied that there are exceptional circumstances.

(18)

For the purposes of subsections (12) and (15), an

application for an order under this section is taken to be

finally determined when —

(a) the application is withdrawn or dismissed; or

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s. 187

(b) an order (other than an interim order) is made as a result of the application.

”.

187.         Section 205ZH amended

(1)

Section 205ZH(1) is amended by deleting “proceedings with

respect to the property of de facto partners, or either of them,”

and inserting instead —

“ property settlement proceedings, ”.

(2)

Section 205ZH(2) is amended by deleting “proceedings with

respect to the property of de facto partners, or either of them,”

and inserting instead —

“ property settlement proceedings, ”.

(3)

Section 205ZH(5) is amended by deleting “party to the

proceedings” and inserting instead —

“ de facto partner ”.

(4)

After section 205ZH(6) the following subsections are

inserted —

“

(7)

For the purposes of this section, a creditor of a party to

the proceedings in which the order under

section 205ZG was made is taken to be a person whose

interests are affected by the order if the creditor may

not be able to recover his or her debt because the order

has been made.

(8)

For the purposes of this section, if —

(a)

an order is made by a court under the property of de facto partners or either of them; and

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(b) either of the following subparagraphs apply to a de facto partner —

(i)      when the order was made, the de facto partner was a bankrupt;

(ii)      after the order was made, the de facto partner became a bankrupt,

the bankruptcy trustee is taken to be a person whose

interests are affected by the order.

(9) For the purposes of this section, if —

(a)	a de facto partner is a bankrupt; and
(b)

the bankruptcy trustee is taken to be a person whose

interests are affected by the order.

an order is made by a court under the vested bankruptcy property in relation to the bankrupt party,

(10) For the purposes of this section, if —

(a)

an order is made by a court under the property of de facto partners or either of them; and

(b) either of the following subparagraphs apply to a de facto partner —

(i)      when the order was made, the de facto partner was a debtor subject to a personal insolvency agreement;

(ii)      after the order was made, the de facto partner became a debtor subject to a personal insolvency agreement,

the trustee of the agreement is taken to be a person

whose interests are affected by the order.

”.

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s. 188

188.         Sections 205ZHE, 205ZHF, 205ZHG and 205ZHH inserted

Before section 205ZI the following sections are inserted —

“

205ZHE. Notifying third parties about application — FLA

s. 79F

The rules may specify the circumstances in which a

person who —

(a)	applies for an order under this Part; or
(b)	is a party to proceedings for an order under this Part,

is to give notice of the application to a person who is

not a party to the proceedings.

205ZHF. Notifying bankruptcy trustee etc. about application under section 205ZA, 205ZCA, 205ZG or 205ZH — FLA s. 79G

(1)

The rules may make provision for a bankrupt who becomes a party to a proceeding for an application under section 205ZA, 205ZCA, 205ZG or 205ZH to

give notice of the application to the bankruptcy trustee.

(2)

The rules may make provision for a debtor subject to a personal insolvency agreement who becomes a party to a proceeding for an application under section 205ZA,

205ZCA, 205ZG or 205ZH to give notice of the

application to the trustee of the agreement.

205ZHG. Notifying court about bankruptcy etc. — FLA

s. 79H

(1) The rules may make provision for a person who —

(a)	is a de facto partner; and
(b)	is a party to a proceeding for an application under section 205ZA, 205ZCA, 205ZG or 205ZH; and

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(c) before that application is finally determined, becomes a bankrupt,

to notify a court exercising jurisdiction under this Act

that the person has become a bankrupt.

(2) The rules may make provision for a person who —

(a)	is a de facto partner; and
(b)	is a party to a proceeding for an application under section 205ZA, 205ZCA, 205ZG or 205ZH; and
(c)	before that application is finally determined, becomes a debtor subject to a personal insolvency agreement,

to notify a court exercising jurisdiction under this Act

that the person has become a debtor subject to a

personal insolvency agreement.

(3) The rules may make provision for a person who —

(a)	is a de facto partner; and
(b)	is a party to a proceeding for an application under section 205ZA, 205ZCA, 205ZG or 205ZH; and
(c)	before that application is finally determined, becomes a party to a proceeding before the Federal Court or the Federal Magistrates Court under the Bankruptcy Act that relates to —

(i)      the bankruptcy of the person; or

(ii)      the person’s capacity as a debtor subject to a personal insolvency agreement,

to notify a court exercising jurisdiction under this Act

of the institution of the proceeding under the

Bankruptcy Act.

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s. 188

(4) The rules may make provision for a person who —

(a)	is the bankruptcy trustee of a bankrupt de facto partner; and
(b)	applies under section 139A of the Bankruptcy Act for an order under Division 4A of Part VI of that Act,

to notify a court exercising jurisdiction under this Act

of the making of the application.

(5)

For the purposes of this section, an application for an

order under section 205ZCA, 205ZG or 205ZH is taken

to be finally determined when —

(a)	the application is withdrawn or dismissed; or
(b)	an order (other than an interim order) is made as a result of the application.

(6)

For the purposes of this section, an application for a

declaration under section 205ZA is taken to be finally

determined when —

(a)	the application is withdrawn or dismissed; or
(b)	a declaration is made as a result of the application.

205ZHH. Notifying non-bankrupt de facto partner about

application under section 139A of the Bankruptcy

Act — FLA s. 79J

The rules may make provision for a person who —

(a)	is the bankruptcy trustee of a bankrupt de facto partner; and
(b)	applies under section 139A of the Bankruptcy Act for an order under Division 4A of Part VI of that Act in relation to an entity (other than the other de facto partner),

to notify the other de facto partner of the making of the

application.

”.

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s. 189

189.         Section 205ZI amended

After section 205ZI(3) the following subsections are inserted —

“

(4)

If a bankruptcy trustee is a party to a proceeding before

the court, the court may make an order under

subsection (1)(e) directed to the bankrupt.

(5)

If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under subsection (1)(e) directed to the debtor subject to the agreement.

(6)

Subsections (4) and (5) do not limit subsection (1)(e).

”.

190.         Section 205ZL amended and transitional provision

(1)

Section 205ZL(1) is amended by deleting “In proceedings with

respect to the maintenance of a de facto partner, if there is in

force an order with respect to the maintenance of that person by

the de facto partner of that person” and inserting instead —

“

If there is in force an order with respect to the

maintenance of a de facto partner

”.

(2) After section 205ZL(1) the following subsection is inserted —

“

(1a)

The court’s jurisdiction under subsection (1) may be

exercised —

(a)	in any case, in proceedings with respect to the maintenance of a de facto partner; or
(b)	if there is a bankrupt de facto partner, on the application of the bankruptcy trustee; or

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s. 191

(c) if a de facto partner is a debtor subject to a personal insolvency agreement, on the application of the trustee of the agreement.

”.

(3)

Section 205ZL(5) is amended by inserting after “a de facto

partner” —

“ , or by the bankruptcy trustee of a de facto partner ”.

(4)

Section 205ZL(1) of the Family Court Act 1997, as amended by

subsection (1), applies to an order made before, on or after the

commencement of this Part.

191.         Section 205ZP amended

(1)

Section 205ZP(1)(a) is amended by deleting “parties” and

inserting instead —

“ de facto partners ”.

(2)

Section 205ZP(1)(b) is amended by deleting “parties” and

inserting instead —

“ de facto partners ”.

192.         Section 205ZPA inserted

After section 205ZP the following section is inserted —

“

205ZPA. Need for separation declaration for certain

provisions of financial agreement to take effect —

FLA s. 90DA

(1)

A financial agreement between 2 people, to the extent

to which it deals with —

(a)

how, in the event of the breakdown of the or financial resources of either or both of them at the time when the agreement is made, or at a

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s. 192

later time and during the de facto relationship,

is to be dealt with; or

(b) the maintenance of either of them after the de facto relationship has ended,

is of no force or effect until a separation declaration is

made.

(2)

A separation declaration is a written declaration that

complies with subsections (3) and (4).

(3)

The declaration must be signed by at least one of the

parties to the financial agreement.

(4)

The declaration must state that —

(a)	the de facto partners have separated and are living separately and apart at the declaration time; and
(b)	in the opinion of the de facto partners making the declaration, there is no reasonable likelihood of cohabitation being resumed.

(5)	In this section —
“declaration time” means the time when the

declaration was signed by a party to the financial

agreement (or last signed by a party to the

agreement, if both parties to the agreement have

signed);

“separated” has the same meaning in relation to a

de facto relationship as it has for the purposes of section 48 of the Family Law Act, as affected by section 49 of that Act, in relation to a marriage.

”.

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s. 193

193.         Section 222 amended

(1) After section 222(1) the following subsections are inserted —

“

(1a) If —

(a)	a de facto partner is a bankrupt; and
(b)	the bankrupt trustee is a party to proceedings under this Act,

the court may set aside or restrain the making of an

instrument or disposition —

(c)	which is made or proposed to be made by or on behalf of, or by direction or in the interests of, the bankrupt; and
(d)	which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

(1b) If —

(a)	a de facto partner is a debtor subject to a personal insolvency agreement; and
(b)	the trustee of the agreement is a party to proceedings under this Act,

the court may set aside or restrain the making of an

instrument or disposition —

(c)	which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and
(d)	which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

”.

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s. 194

(2)

Section 222(2) is amended by deleting “such instrument or

disposition” and inserting instead —

“

instrument or disposition referred to in subsection (1),

(1a) or (1b)

”.

(3) After section 222(4) the following subsection is inserted —

“

(4aa) After section 235A(3) the following subsections are inserted —

An application may be made to the court for an order

under this section by —

(a)	a party to the proceedings; or
(b)	a creditor to the party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or
(c)	any other person whose interests would be affected by the making of the instrument or disposition.

”.

194.         Section 235A amended

“

(4)

If a de facto partner is a bankrupt, a court may, on the

application of the other de facto partner, by

interlocutory order, grant an injunction under

subsection (3) restraining the bankruptcy trustee from

declaring and distributing dividends amongst the

bankrupt’s creditors.

(5)

Subsection (4) does not limit subsection (3).

(6)

If a de facto partner is a debtor subject to a personal

insolvency agreement, a court may, on the application

of the other de facto partner, by interlocutory order,

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s. 195

grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the

agreement.

(7) Subsection (6) does not limit subsection (3).

”.

195.         Transitional provisions

(1)	In this section —
“commencement” means the day on which this Part comes into

operation;

“relevant provisions” means the following provisions of the

Family Court Act 1997, as amended by this Part —

(a)	section 205ZCA(2), (3) and (4); and
(b)	section 205ZCA(8), to the extent to which it relates to section 205ZCA(2); and
(c)	the definitions in section 5(1), to the extent to which those definitions relate to section 205ZCA(2), (3) and (4); and
(d)	section 205ZG(11), (12) and (13); and
(e)	section 205ZG(17), to the extent to which it relates to section 205ZG(11); and
(f)	the definitions in section 5(1) to the extent to which those definitions relate to section 205ZG(11), (12) and (13).

(2) Subject to subsection (3), the Family Court Act 1997, as amended by this Part, to the extent to which it relates to bankruptcies or personal insolvency agreements —

(a) applies in relation to —

(i)      bankruptcies for which the date of the bankruptcy is after the commencement; and

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s. 195

(ii)

personal insolvency agreements, whether

executed before, at or after the commencement;

and

(b) does not apply in relation to bankruptcies for which the date of the bankruptcy is before the commencement.

(3)

The relevant provisions apply to proceedings instituted after the

commencement, whether the date of the bankruptcy is before,

on or after the commencement.

Family Legislation Amendment Act 2006

Child Support (Adoption of Laws) Act 1990	Part 5
s. 196

Part 5 — Child Support (Adoption of Laws) Act 1990

196.         Purpose of Part

The purpose of this Part is to provide that the adoption by the

Child Support (Adoption of Laws) Act 1990 of —

(a)

the Child Support (Registration and Collection) amended by —

(i)

the Financial Framework Legislation

Amendment Act 2005; and

(ii)      the Child Support Legislation Amendment (Reform of the Child Support Scheme — Initial Measures) Act 2006; and

(iii)      the Family Law Amendment (Shared Parental Responsibility) Act 2006; and

(iv)

the Financial Framework Legislation

Amendment Act (No. 1) 2006; and

(v)      the Jurisdiction of Courts (Family Law) Act 2006; and

(vi)      the Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006,

of the Commonwealth; and

(b) the Child Support (Assessment) Act 1989 of the Commonwealth extends to that Act as amended by —

(i)      the Tax Laws Amendment (Improvements to Self Assessment) Act (No. 2) 2005; and

(ii)      the Child Support Legislation Amendment (Reform of the Child Support Scheme — Initial Measures) Act 2006; and

(iii)      the Jurisdiction of Courts (Family Law) Act 2006; and

(iv)      the Family Law Amendment (Shared Parental Responsibility) Act 2006,

of the Commonwealth.

Family Legislation Amendment Act 2006

Part 5	Child Support (Adoption of Laws) Act 1990
s. 197

197.         The Act amended

The amendments in this Part are to the Child Support (Adoption

of Laws) Act 1990*.

[* Reprint 1 as at 2 May 2003.]

198.         Section 3 amended

Section 3(a) of the Child Support (Adoption of Laws) Act 1990 is amended by deleting “1 July 2002” and inserting instead —

“ 1 July 2006 ”.

199.         Section 4 amended

Section 4(b) of the Child Support (Adoption of Laws) Act 1990 is amended by deleting “1 July 2002” and inserting instead —

“ 1 July 2006 ”.

Family Legislation Amendment Act 2006

Consequential amendments to other Acts Part 6

Children and Community Services Act 2004 amended Division 1

s. 200

Part 6 — Consequential amendments to other Acts

Division 1 — Children and Community Services

Act 2004 amended

200.         The Act amended

The amendments in this Division are to the Children and

Community Services Act 2004*.

[* Act No. 34 of 2004.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 61.]

201.         Section 104 amended

(1)

Section 104(1) is amended by deleting the definitions of

“residence order” and “specific issues order” and inserting in

the appropriate alphabetical position —

“

“parenting order” means a parenting order made

under the Family Law Act 1975 of the which deals with —

(a)	the person or persons with whom a child is to live; or
(b)	the time a child is to spend with another person or other persons; or
(c)	the communication a child is to have with another person or other persons; or
(d)	the allocation of parental responsibility for a child;

”.

(2)

Section 104(2)(d) is amended by deleting “residence order or

specific issues” and inserting instead —

“ parenting ”.

Family Legislation Amendment Act 2006

Part 6	Consequential amendments to other Acts
Division 1	Children and Community Services Act 2004 amended
s. 202

(3)

Section 104(2)(e) is amended by deleting “residence order or

specific issues” and inserting instead —

“ parenting ”.

202.         Section 198 amended

Section 198(2) is amended as follows:

(a) by deleting paragraph (b) and inserting instead —

“

(b) care provided to a child by a person in accordance with a parenting order under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997; or

”;

(b) after each of paragraphs (a) and (c) to (e) by inserting —

“ or ”.

203.         Section 238 amended

Section 238(6)(d) is deleted and the following paragraph is

inserted instead —

“

(d) if the proceedings are in the Family Court —

(i)      a family consultant, as defined in the Family Court Act 1997; or

(ii)      any other person required or directed to prepare a report on matters relevant to the proceedings, under that Act or the Family Law Act 1975 of the Commonwealth;

”.

Family Legislation Amendment Act 2006

Consequential amendments to other Acts Part 6

Guardianship and Administration Act 1990 amended Division 2

s. 204

Division 2 — Guardianship and Administration

Act 1990 amended

204.         The Act amended

The amendments in this Division are to the Guardianship and

Administration Act 1990*.

[* Reprint 3 as at 1 April 2005.

For subsequent amendments see Acts Nos. 34, 59 and 84 of

2004.]

205.         Section 45 amended

Section 45(1)(a) and (b) and “and” after paragraph (a) are

deleted and the following is inserted instead —

“

(a)	a parenting order which allocates parental responsibility for a child; and
(b)	a parenting order which provides that a person is to share parental responsibility for a child,

”.

Division 3 — Restraining Orders Act 1997 amended

206.         The Act amended

The amendments in this Division are to the Restraining Orders

Act 1997*.

[* Reprinted as at 6 October 2000.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 387 and

Acts Nos. 34 and 38 of 2004.]

Family Legislation Amendment Act 2006

Part 6	Consequential amendments to other Acts
Division 3	Restraining Orders Act 1997 amended
s. 207

207.         Section 5 amended

(1)

Section 5(1)(a) and (b) are deleted and the following paragraph

is inserted instead —

“

(a) a parenting order made under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997, as is relevant to the case, that deals with —

(i)      the person or persons with whom a child is to live; or

(ii)      the time a child is to spend with another person or other persons; or

(iii)      the communication a child is to have with another person or other persons;

”.

(2) Section 5(2) is amended as follows:

(a)	in paragraph (a) by deleting “, a specific issues order”;
(b)	in paragraph (d) by deleting “registered” and inserting instead —

“ , whether registered or not ”;

(c) in paragraph (e) by deleting “recognisance” and inserting instead —

“ bond ”;

(d) after each of paragraphs (a) to (c) by inserting —

“ or ”.

Family Legislation Amendment Act 2006

Consequential amendments to other Acts Restraining Orders Act 1997 amended Part 6

Division 3

s. 208

208.         Section 62 amended

Section 62(1)(a) is amended by deleting “primary dispute

resolution method, as defined in section 47 of ” and inserting

instead —

“ process of family dispute resolution, as defined in ”.