EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 322
Issued By Authority Of The Attorney-General
Family Law Act 1975
Family Law Amendment Regulations 2009 (No. 2)
Subsection 125(1) of the Family Law Act 1975 (FLA) provides, in part, that the Governor-General may make regulations, not inconsistent with the FLA, prescribing all matters required or permitted by the FLA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the FLA.
The FLA provides for the parenting of children and financial provision upon relationship breakdown. It provides for parentage presumptions reflecting those that apply under state and territory laws to children born as a result of artificial conception procedures, and for recognition of court orders made under those laws for the parentage of children born under surrogacy arrangements.
The purpose of the Regulations is to amend the Family Law Regulations 1984 (the Principal Regulations) to reflect amendments to the Relationships Act 2008 (Vic) (the Relationships Act), and to prescribe additional Victorian laws providing for the parentage of children born through artificial conception procedures or under surrogacy arrangements.
In particular, the Regulations:
- amend the prescription of relationships registered under the Relationships Act 2008 (Vic) to ensure that the definition of a ‘de facto relationship’ in the FLA only refers to domestic relationships registered under the Relationships Act;
- prescribe particular provisions of the Status of Children Act 1974 (Vic), providing for the parentage of children conceived through artificial conception procedures carried out while a woman has a female partner or no partner, for the purpose of parentage presumptions in the FLA; and
- prescribe a provision of the Status of Children Act 1974 (Vic) to provide for the recognition under the FLA of parentage orders made by the Victorian Supreme Court or the Victorian County Court laws relating to children born under surrogacy arrangements.
The Regulations have a number of different commencement dates. Regulations 1 to 3 and Schedule 1 commence on 1 December 2009. Schedule 2 commences on the commencement of section 147 of the Assisted Reproductive Treatment Act 2008 (Vic).
Details of the Regulations are as follows:
Regulation 1 – Name of Regulations
Regulation 1 provides that the title of the Regulations is the Family Law Amendment Regulations 2009 (No. 2).
Regulation 2 – Commencement
Paragraph 2(a) provides for regulations 1, 2 and 3 and Schedule 1 to commence on 1 December 2009.
Paragraph 2(b) provides for Schedule 2 to commence on the commencement of section 147 of the Assisted Reproductive Treatment Act 2008 (Vic).
Regulation 3 – Amendment of Family Law Regulations 1984
Regulation 3 provides that the Family Law Regulations 1984 (the Principal Regulations) are amended as set out in Schedules 1 and 2.
Schedule 1 – Amendment commencing on 1 December 2009
Item [1]: Regulation 12BC
Item [1] amends regulation 12BC of the Principal Regulations to ensure that only registered domestic relationships, as defined in section 3 of the Relationships Act 2008 (Vic), are prescribed for the purpose of the definition of ‘de facto relationship’ in section 4AA of the FLA.
Regulation 12BC prescribes state and territory laws providing for the registration of relationships, and certain kinds of relationships that may be registered under those laws, for the purpose of the definition of ‘de facto relationship’ in section 4AA of the FLA. The definition requires that all the circumstances of a de facto couple’s relationship are to be considered in determining if they have a relationship as a couple living together on a genuine domestic basis including, under paragraph 4AA(2)(g), whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship.
The Relationships Act has been amended by the Relationships Amendment (Caring Relationships) Act 2009 (Vic) to provide for the registration of caring relationships in Victoria, from 1 December 2009. As a result, two types of relationships are registrable under the Victorian scheme: ‘caring relationships’ and ‘domestic relationships’.
Item [1] provides that only registered domestic relationships are prescribed for the purpose of the definition of ‘de facto relationship’ in section 4AA of the FLA.
Schedule 2 – Amendments commencing on the commencement of the Assisted Reproductive Treatment Act 2008 (Vic), section 147
Item [1]: Regulation 12C
Item [1] amends regulation 12C of the Principal Regulations to prescribe sections 13 and 14 of the Status of Children Act 1974 (Vic) for the purposes of subparagraph 60H(1)(b)(ii) of the FLA.
Subparagraph 60H(1)(b)(ii) of the FLA provides that a child born to a woman as a result of carrying out an artificial conception procedure, while married or in a de facto relationship, is the child of the woman and her partner for the purposes of the FLA, if the child is the child of the woman and her partner under a prescribed state or territory law.
Item [2]: Regulation 12CA
Item [2] amends regulation 12CA of the Principal Regulations to prescribe sections 15 and 16 of the Status of Children Act 1974 (Vic) for the purposes of paragraph 60H(2)(b) of the FLA.
Subparagraph 60H(2)(b)(ii) of the FLA provides that a child born to a woman as a result of carrying out an artificial conception procedure, whether or not the child is biologically a child of the woman, is her child for the purposes of the FLA, if the child is the child of the woman under a prescribed state or territory law.
Items [3] and [4]: Regulation 12CAA
Item [3] makes a drafting change to paragraph 12CAA(b) of the Principal Regulations consequential on the insertion of new paragraph 12CAA(c).
Item [4] inserts a new paragraph 12CAA(c) in the Principal Regulations to prescribe section 22 of the Status of Children Act 1974 (Vic) for the purposes of subsection 60HB(1) of the FLA.
Subsection 60HB(1) of the FLA provides that if a court has made an order under a prescribed state or territory law to the effect that a child is the child of one or more persons, or each of one or more persons is a parent of a child, the child is the child of each of those person for the purposes of the FLA.
The Regulations incorporate by reference the Relationships Act 2008 (Vic), which provides for a relationship register in Victoria for the registration of domestic and caring relationships. The Act may be viewed at the following website address:
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/a12f6f60fbd56800ca256de500201e54/710A073072B6842FCA2575E5007786F2/$FILE/08-12a003.pdf
Consultation on the content of the Regulations was undertaken under section 17 of the Legislative Instruments Act 2003 with the Victorian Department of Justice. The consultation involved discussions and exchange of correspondence.