EXPLANATORY STATEMENT
FAMILY LAW ACT 1975
FAMILY LAW REGULATIONS (Amendment)
(STATUTORY RULES 1989 No 74)
(Issued under the authority of the Attorney-General)
The purpose of the amendments to the Family Law Regulations (the Principal Regulations) is:
• to correct the list of State and Territory laws relating to artificial conception which are prescribed for the purposes of the Family Law Act; these laws are prescribed for the purpose of ensuring that a child is treated as the child of a person under the Family Law Act if that child would be treated as that person’s child under State or Territory legislation relating to artificial conception;
• to enable officers of courts of summary jurisdiction to institute enforcement proceedings in the courts on behalf of persons who are entitled to maintenance payments under an order for maintenance made by a court under the Family Law Act;
• to amend the prescribed list of State and Territory domestic violence laws to take account of recent amendments to the Justices Act 1959 of Tasmania; these laws are prescribed to preserve their concurrent operation with provisions of the Family Law Act;
• to amend the prescribed procedures for determining a child’s parentage when this is in issue in proceedings under the Family Law Act; the amendments broaden the range of prescribed parentage testing procedures to cover new DNA typing methods and remove a requirement for transport of blood samples in environment controlled packaging where transport of this kind is not necessary for particular parentage testing procedures;
• to prescribe State maintenance laws for the purposes of the Family Law Act and thereby permit an application for maintenance by a parent whose child is subject to care and protection orders under State or Territory child welfare legislation;
Subsection 125(1) of the Family Law Act 1975 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed for carrying out or giving effect to the Act.
Details of the Regulations are attached.
Authority: Subsection 125(1) of the
Family Law Act 1975
ATTACHMENT
Details of the amending Family Law Regulations (the amending Regulations)
Regulation 1 provides that in the amending Regulations the words the “Principal Regulations” mean the Family Law Regulations.
Regulation 2 - Subsection 60B(2) of the Family Law Act provides that where a child is born to a woman as a result of the carrying out of an artificial conception procedure and under a prescribed law the child is the child of the woman, then the child is her child for the purposes of the Family Law Act. Amending Regulation 2 will insert a new regulation 12CA in the Principal Regulations to prescribe for the purposes of subsection 60B(2) certain State and Territory laws relating to the maternal parentage of children born as a result of artificial conception procedures. The State and Territory Laws to be prescribed are specified in Schedule 7, inserted by regulation 10 of the amending Regulations.
Regulation 3 - Paragraph (f) of subsection 125(1) of the Family Law Act provides that regulations may be made providing for a person, for the time being holding a prescribed office, in his or her discretion to institute and prosecute proceedings on behalf of a person entitled to monies payable under a maintenance order for the purpose of enforcing payment of those monies. Amending regulation 3 will amend subregulation 15(3) of the Principal Regulations to include officers of courts of summary jurisdiction of each State and Territory in the list of office holders entitled, for purposes of paragraph (f) of subsection 125(1) of the Family Law Act, to institute and prosecute proceedings on behalf of a person to enforce maintenance payments.
Regulation 4 - Subsection 114AB(1) of the Family Law Act provides that prescribed State and Territory domestic violence laws operate concurrently with provisions of the Family Law Act relating to the granting of injunctions for personal protection or for restraining persons from entering premises. Amending regulation 4 will amend regulation 19 of
the Principal Regulations which prescribes State and Territory domestic violence laws for the purposes of section 114AB of the Family Law Act, to substitute references to provisions of the Justices Act of the State of Tasmania following amendment of that Act by the Justices Amendment Act 1988.
Regulation 5 - Section 60 of the Family Law Act defines the words ‘parentage testing procedure’ for the purposes of that Act as a medical procedure prescribed for the purposes of the definition. Amending regulation 5 will amend regulation 21B of the Principal Regulations to broaden the range of testing procedures prescribed for the purposes of section 60 of the Family Law Act to include all DNA typing methods, rather than just DNA typing of restriction fragment length polymorphisms.
Regulation 6 - Subsection 66W(9) of the Family Law Act provides that regulations may make provision for the carrying out of parentage testing procedures ordered by a court for the purpose of obtaining information to assist in determining the parentage of a child. Amending regulation 6 will amend regulation 21D of the Principal Regulations, which prescribes blood storage and testing requirements for the purposes of section 66W(9) of the Family Law Act, to remove a requirement for transport of blood in environment controlled packaging if red cell antigen blood group testing of the blood is to be carried out within 24 hours of the blood having been collected. Amending regulation 6 will also amend references in regulation 21D of the Principal Regulations to DNA typing of restriction fragment length polymorphisms in accordance with the broadening of the range of prescribed testing procedures by amending regulation 5 to include all DNA typing methods.
Regulation 7 will amend schedule 1 of the Principal Regulations to amend references to DNA typing of restriction fragment length polymorphisms in accordance with the broadening of the range of prescribed testing procedures by amending regulation 5 to include all DNA typing methods.
Regulation 8 - Paragraph (c) of subsection 60H(1) of the Family Law Act provides that nothing in that Act affects the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of a child. For the purposes of section 60H, section 60 of the Family Law Act defines the words ‘child welfare law’ to mean a law of a State or of a Territory prescribed for the purposes of the definition. Amending regulation 8 will amend Schedule 5 of the Principal Regulations to include in the list of State and Territory legislation prescribed for the purpose of section 60 of the Family Law Act, State and Territory laws relating to maintenance.
Regulation 9 - Subsection 60B(1) of the Family Law Act provides that where a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man, and under a prescribed law the child is a child of the woman and of the man, then the child is their child for the purposes of the Family Law Act. Amending regulation 9 will amend Schedule 6 of the Proposed Regulations, which prescribes State and Territory laws for the purposes of subsection 60B(1) of the Family Law Act, to omit a reference to section 10F of the Victorian Status of Children Act 1974. Section 10F of that Act does not provide that a child is a child of a woman and a man. It is therefore not a law which can be prescribed under s.60B(1) and it was incorrectly included when Schedule 6 of the Principal Regulations was inserted by the Family Law Regulations (Amendment) 1988 (Statutory Rules 1988 No 42).
Regulation 10 will insert a new Schedule 7 in the Principal Regulations specifying State and Territory artificial conception laws for the purposes of new regulation 12CA, to be inserted by regulation 2 of the amending regulations.