Family Law Amendment Regulations 2003 (No. 1)

Administered by Attorney-General's Department

Legislation au F2003B00356 Regulations Not in force Legislative Instrument

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Family Law Amendment Regulations 2003 (No. 1) 2003 No. 339

EXPLANATORY STATEMENT

STATUTORY RULES 2003 No. 339

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW AMENDMENT REGULATIONS 2003 (No. 1)

Subsection 125(1) of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the Regulations is to update references in the Family Law Regulations 1984 (the Principal Regulations) to ensure that it reflects current State and Territory legislation.

Regulation 12BA of the Principal Regulations prescribes the definitions of "child welfare officer" for each State and Territory. In particular it gives effect to section 66F of the Act as it allows relevant State child welfare officers to apply to the Family Court for a child maintenance order. It also gives effect to section 69ZK as it provides that consent of a child welfare officer is one of the circumstances that must apply before family court orders made under the Act may override orders made under child welfare laws.

Schedule 5 to the Principal Regulations prescribes "child welfare law" for each State and Territory. This gives effect to Subdivision F of Division 12 of Part VII of the Act by allowing orders made under State and Territory child welfare laws to continue to operate except in certain specific circumstances. This subdivision deals with the interaction of State and Territory child welfare orders and orders made under the Act.

Schedule 8 to the Principal Regulations contains a table of prescribed laws related to family violence orders. This gives effect to Division 11 of Part VII of the Act which concerns inconsistencies between contact orders and family violence orders.

The Regulations:

•       update the prescribed child welfare officers in Regulation 12BA for Tasmania, Queensland, the Australian Capital Territory and the Northern Territory;

•       update the child welfare laws listed in Schedule 5 by adding new laws for New South Wales and updating references for Queensland, South Australia, the Australian Capital Territory and the Northern Territory; and

•       update the Australian Capital Territory laws listed in Schedule 6 and 8

Details of the Regulations are as follows:

Regulation 1 provides the name of the proposed Regulations as the Family Law Amendment Regulations 2003 (No. 1)

Regulation 2 provides for commencement on gazettal.

Regulation 3 provides for the amendment to the Family Law Regulations 1984.

Item 1 amends Regulation 12BA to substitute the office of the Minister for Health and Human Services as the prescribed child welfare officer for Tasmania.

Item 2 amends Regulation 12BA to substitute the:

•       office of the Chief Executive of the Department of Families as the prescribed child welfare officer for Queensland

•       offices of the Chief Executive of the Department of Education Youth and Family Services and the Chief Psychiatrist appointed under section 112 of the Mental Health (Treatment and Care) Act 1994 for the ACT; and

•       office of the Minister for Health and Community Services for the Northern Territory.

Item 3 amends the prescribed list of child welfare laws in Schedule 5 to reflect changes to NSW legislation from amendment to the Adoption Act 2000, the Children (Care and Protection) Act 1987 and the Children and Young Persons (Care and Protection) Act 1998.

Item 4 amends the prescribed list of child welfare laws in Schedule 5 to reflect changes to the Queensland Mental Health Act 2000.

Item 5 amends the prescribed list of child welfare laws in Schedule 5 to reflect changes to the South Australian Adoption Act 1988.

Items 6-9 amend the prescribed list of child welfare laws in Schedule 5 to reflect the repeal of the Tasmanian Maintenance Act 1967 and amendments to that States Youth Justice Act 1997 and the Mental Health Act 1996.

Items 10-11 amends the prescribed list of child welfare laws in Schedule 5 to reflect amendments to the Northern Territory Adoption of Children Act, Mental Health and Related Services Act, and the Guardianship of Infants Act.

Item 12 amends the prescribed list of child welfare laws in Schedule 5 to reflect amendments to the ACT legislation.

Item 13 amends Schedule 6 which prescribes laws for the purposes of subsection 60H(1) related to artificial conception to reflect changes to the ACT Status of Children Act 1996.

Item 14 amends Schedule 8 which prescribes laws related to family violence orders to reflect changes to the ACT Protection Orders Act 2001.

Overview

The Family Law Amendment Regulations 2003 (No. 1) were enacted to update the Family Law Regulations 1984, ensuring they reflect current state and territory legislation. This regulatory update was necessary to maintain consistency and alignment between federal family law and state child welfare laws, particularly in light of recent legislative changes at the state level. The Regulations were made under the authority of the Family Law Act 1975, with the primary objective of ensuring that the definitions of child welfare officers and child welfare laws are current and applicable across all jurisdictions. This was achieved by amending specific regulations and schedules to incorporate recent legislative amendments and repeals in various states and territories, thus facilitating a more coherent and effective legal framework for child welfare and family law interactions.

Scope and Application

The Family Law Amendment Regulations 2003 (No. 1) amends the Family Law Regulations 1984 to update references and definitions pertaining to child welfare officers and child welfare laws across various Australian jurisdictions. These regulations apply to the Commonwealth and are designed to ensure consistency with current state and territory legislation. They affect entities such as child welfare officers and government departments responsible for child welfare, as well as legal practitioners handling family law cases that intersect with child welfare and family violence matters. The regulations provide specific updates to the prescribed child welfare officers for Tasmania, Queensland, the Australian Capital Territory, and the Northern Territory, and update the list of child welfare laws for New South Wales and other territories to reflect legislative changes. These amendments ensure that the Family Law Act 1975 operates in harmony with corresponding state and territory laws, particularly in cases where child welfare and family violence orders are involved. The regulations also extend their application through subordinate instruments where necessary, ensuring that the legal framework remains current and effective in addressing family law issues.

Key Provisions

The Family Law Amendment Regulations 2003 (No. 1) primarily serve to update the Family Law Regulations 1984 to ensure alignment with current State and Territory legislation. This includes amending definitions and lists that pertain to child welfare officers, child welfare laws, and family violence orders (Reg. 2). The Regulations specify the child welfare officer for each jurisdiction (Reg. 12BA), update the list of child welfare laws in Schedule 5, and revise the laws related to family violence orders in Schedule 8. These amendments are crucial for maintaining the integrity and effectiveness of the Family Law Act 1975, ensuring that orders made under the Act properly interact with state and territory child welfare laws and family violence orders. The Family Law Amendment Regulations 2003 (No. 1) impose specific obligations on the entities they govern. For instance, the updated definitions of child welfare officers in Regulation 12BA ensure that relevant officers in each state and territory can apply to the Family Court for child maintenance orders and that their consent is required in certain circumstances before family court orders can override child welfare laws (Reg. 12BA). Furthermore, the updated list of child welfare laws in Schedule 5 ensures that orders made under state and territory child welfare laws can continue to operate except in specific circumstances where they conflict with family law orders (Schedule 5). Similarly, the updated list in Schedule 8 ensures that contact orders are consistent with family violence orders (Schedule 8). Breaching the provisions of the Family Law Amendment Regulations 2003 (No. 1) can result in various consequences, though the regulations themselves do not explicitly state penalties for non-compliance. However, given that these regulations are made under the authority of the Family Law Act 1975, any failure to comply with the regulations could potentially lead to legal actions under the Act. For instance, non-compliance with child welfare laws or family violence orders could result in civil penalties or even criminal charges under state and territory laws. The specific penalties would depend on the nature and severity of the breach, as well as the relevant state or territory laws.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.