Family Law Amendment Regulations 2008 (No. 4)

Administered by Attorney-General's Department

Legislation au F2008L04631 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 259

 

Issued by the Authority of the Attorney-General

 

Family Law Act 1975

 

Family Law Amendment Regulations 2008 (No. 4)

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations 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 proposed Regulations is to update regulation 19 of, and Schedule 8 to, the Family Law Regulations 1984 (the Principal Regulations) to reflect various amendments to family violence legislation that have or will come into force in New South Wales, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory.

 

Regulation 19 is a list of the prescribed laws of States and Territories which can operate concurrently with sections 68B, 68C, 114 and 114AA of the Act.  Those sections relate to the personal protection of parties and/or their children.

 

Regulation 12BB provides that laws listed in Schedule 8 to the Principal Regulations are prescribed laws of States and Territories for the purpose of defining a ‘family violence order’ under the Act.  The effect of prescribing these laws is that, among other things, Family Law Courts are required to explicitly consider these orders in determining the best interests of the child.  It also invokes an obligation on parties to inform the court of the existence of these orders, resulting in a more effective response to family violence.

 

The Principal Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The proposed Regulations would commence in accordance with the provisions in the proposed Regulation 2.

 

Consultation on these regulations is unnecessary because they are of a minor and machinery nature and do not substantially alter existing arrangements.  However, the relevant jurisdictions have been informed of the proposed Regulations.

 

Details of the Regulations are as follows:

 

 

Regulation 1 - Name of Regulations

 

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2008 (No. 4).

 

Regulation 2 – Commencement

 

Paragraph 2(a) provides that regulations 1, 2 and 3 and Schedule 1 commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

 

Paragraph 2(b) provides that Schedule 2 commences on 30 March 2009.

 

Paragraph 2(c) provides that if these Regulations are registered on or before the commencement of section 212 of the Family Violence Protection Act 2008 (Vic), Schedule 3 commences on the day after that section commences.  However, if these Regulations are registered after the commencement of section 212 of the Family Violence Protection Act 2008 (Vic), Schedule 3 commences on the day after the Regulations are registered.

 

Regulation 3 - Amendment of the Family Law Regulations 1984

 

Regulation 3 provides that Schedules 1, 2 and 3 amend the Principal Regulations.

 

Schedule 1 – Amendments commencing on the day after registration

 

Item [1]: Paragraph 19(a)

 

This item replaces the existing reference to Part 15A of the Crimes Act 1900 (NSW) in paragraph 19(a) of the Principal Regulations with a reference to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

 

Part 15A of the Crimes Act 1900 (NSW) was repealed and replaced by the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which commenced on 10 March 2008.

Item [2]: Paragraph 19(d) 

 

This item removes the existing reference to Divisions 1 and 2 of Part 9 of the Restraining Orders Act 1997 (WA) in paragraph 19(d) of the Principal Regulations.

 

The provisions of Part 9 of the Restraining Orders Act 1997 (WA) were transitional provisions that dealt with Part VII orders made under the Justices Act 1902 (WA) that were still in force at the time the Restraining Orders Act 1997 (WA) commenced.  Part 9 has since been omitted under paragraph 7(4)(e) of the Reprints Act 1984 (WA).  The Justices Act 1902 (WA) was repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA).

 

Item [3]: Paragraph 19(h) 

 

The item replaces the existing reference to the Domestic Violence Act (NT) in paragraph 19(h) of the Principal Regulations with a reference to the Domestic and Family Violence Act 2007 (NT).

 

The Domestic Violence Act (NT) was repealed and replaced by the Domestic and Family Violence Act 2007 (NT), which commenced on 1 July 2008.
 

Item [4]: Paragraph 19(i)

 

This item inserts paragraph 19(i) into the Principal Regulations, which is a reference to the Domestic Violence Act 1995 (NI).

 

This item rectifies the omission of the Domestic Violence Act 1995 (NI) from the Principal Regulations.  It also ensures that the Domestic Violence Act 1995 (NI) will be able to operate concurrently with sections 68B, 68C, 114 and 114AA of the Family Law Act 1975 (Cth).

 

Item [5]: Schedule 8, item 1, column 2 

 

This item replaces the existing reference to the Crimes Act 1900 (NSW) at item 1 of the table in Schedule 8 to the Principal Regulations with a reference to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

 

This item amends the Principal Regulations for the same reasons as item [1] of Schedule 1 to the Regulations.

 

Item [6]: Schedule 8, item 13, column 2 

 

This item replaces the existing reference to the Domestic Violence Act (NT) at item 13 of the table in Schedule 8 to the Principal Regulations with a reference to the Domestic and Family Violence Act 2007 (NT).

 

This item amends the Principal Regulations for the same reasons as item [3] of Schedule 1 to the Regulations.

 

Schedule 2 – Amendments commencing on 30 March 2009

 

Item [1]: Paragraph 19(g)

 

This item replaces the existing reference to the Domestic Violence and Protection Orders Act 2001 (ACT) in paragraph 19(g) of the Principal Regulations with a reference to the Domestic Violence and Protection Orders Act 2008 (ACT).

 

The Domestic Violence and Protection Orders Act 2001 (ACT) will be repealed and replaced by the Domestic Violence and Protection Orders Act 2008 (ACT), which commences on 30 March 2009.

 

Item [2]: Schedule 8, item 12, column 2 

 

This item replaces the existing reference to the Domestic Violence and Protection Orders Act 2001 (ACT) at item 12 of the table in Schedule 8 to the Principal Regulations with a reference to the Domestic Violence and Protection Orders Act 2008 (ACT).

 

This item amends the Principal Regulations for the same reasons as item [1] of Schedule 2 to the Regulations.

 

Schedule 3 – Amendments commencing on the day after the commencement of section 212 of the Family Violence Protection Act 2008 (Vic) or on the day after registration

 

Item [1]: Paragraph 19(b) 

 

This item replaces the existing reference to the Crimes (Family Violence) Act 1987 (Vic) in paragraph 19(b) of the Principal Regulations with a reference to the Family Violence Protection Act 2008 (Vic).

 

Section 212 of the Family Violence Protection Act 2008 (Vic) will repeal the Crimes (Family Violence) Act 1987 (Vic).  Subsections 3(2) and (3) of the Family Violence Protection Act 2008 (Vic) provide that provisions other than sections 1, 3 and 224 will commence on a day to be proclaimed or in default of this on 1 October 2009.

 

Item [2]: Schedule 8, item 3, column 2  

 

This item replaces the existing reference to the Crimes (Family Violence) Act 1987 (Vic) at item 3 of the table in Schedule 8 to the Principal Regulations with a reference to the Family Violence Protection Act 2008 (Vic).

 

This item amends the Principal Regulations for the same reasons as item [1] of Schedule 3 to the Regulations.

 

 

 

Overview

The Family Law Amendment Regulations 2008 (No. 4) were introduced to address the need for updating the Family Law Regulations 1984 to reflect various amendments to family violence legislation across different states and territories in Australia. Enacted under the authority of the Attorney-General and pursuant to subsection 125(1) of the Family Law Act 1975, the regulations aim to ensure that the family law system effectively considers recent changes in state and territory laws related to family violence. This includes aligning the regulations with new acts such as the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Domestic and Family Violence Act 2007 (NT), and the Family Violence Protection Act 2008 (Vic). The overarching policy objective is to improve the efficacy of family law courts in addressing family violence by ensuring that they are informed of and consider relevant state and territory protection orders when determining the best interests of the child. The regulations do not require extensive consultation as they are considered minor and of a machinery nature, focusing primarily on updating references to reflect legislative changes already enacted or soon to be enacted.

Scope and Application

The Family Law Amendment Regulations 2008 (No. 4) aim to update the Family Law Regulations 1984 to reflect amendments to family violence legislation in New South Wales, Victoria, Western Australia, the Australian Capital Territory, and the Northern Territory. These regulations apply to the Family Law Act 1975 and are intended to ensure that family law courts consider certain state and territory laws when determining the best interests of children and dealing with personal protection orders. Regulation 19 of the Principal Regulations lists the prescribed laws that can operate concurrently with specific sections of the Family Law Act, while Schedule 8 lists the laws that define a 'family violence order' under the Act. The regulations amend these lists to include new or updated laws from the relevant jurisdictions, ensuring that family law courts are aware of and consider the most current family violence legislation. The regulations come into effect on different dates depending on the schedule, either immediately after registration, on 30 March 2009, or on the day after the commencement of section 212 of the Family Violence Protection Act 2008 (Vic), or on the day after the regulations are registered, whichever is later.

Key Provisions

The Family Law Amendment Regulations 2008 (No. 4) aim to update the Family Law Regulations 1984 to align with recent amendments to family violence laws in various Australian jurisdictions. Regulation 19 lists the prescribed laws of states and territories that can operate concurrently with specific sections of the Family Law Act 1975, including sections 68B, 68C, 114, and 114AA, which pertain to the personal protection of parties and their children. These sections require family law courts to consider prescribed family violence orders when determining the best interests of the child and obligate parties to inform the court about the existence of such orders. Schedule 8 lists the prescribed laws that define a 'family violence order' under the Act. The regulations will commence on different dates, depending on the schedule, with the majority starting the day after the regulations are registered on the Federal Register of Legislative Instruments. The regulations impose specific obligations on parties involved in family law proceedings. Firstly, they require parties to inform the court of the existence of any family violence orders, ensuring that these orders are considered in the court's determination of the best interests of the child. Secondly, they mandate that family law courts must explicitly consider the prescribed family violence orders when making decisions. This ensures that the courts have all relevant information about the parties' circumstances when making decisions that affect children. Thirdly, the regulations require that the listed state and territory laws be updated to reflect the latest legislative changes in family violence legislation. This ensures that the family law system remains current and effective in addressing family violence issues. Breaches of the obligations outlined in the Family Law Amendment Regulations 2008 (No. 4) may have legal consequences. However, the regulations themselves do not explicitly state any specific offences, penalties, or civil/criminal consequences for non-compliance. The primary consequence of failing to comply with these obligations would likely be a court ruling that may adversely affect the party's interests in a family law matter. For instance, if a party fails to inform the court about a family violence order, the court may not consider this information when determining the best interests of the child, potentially leading to an unfavourable outcome. Additionally, failure to comply with the requirement to consider prescribed family violence orders may result in the court's decision being challenged on the grounds that relevant information was not considered. However, it is important to note that the specific penalties or consequences for non-compliance would depend on the individual circumstances of the case and the applicable family law legislation.

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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.