Family Law Regulations (Amendment) Proclamation 1995 No. 297
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 297
Issued by the Authority of the Attorney-General
Family Law Act 1975
Family Law Regulations (Amendment) Proclamation
Subsection 125(1) of the Family Law Act 1975 (the Act) empowers the Governor-General to make regulations for the purposes of the Act.
The amendments to the Family Law Regulations first, give effect to Tasmania's amendment of its referral of power to the Commonwealth prescribing specific provisions of Tasmanian legislation as child welfare laws pursuant to the Family Law Act 1975 and, secondly, updates references to prescribed child welfare laws for South Australia.
The Standing Committee of Attorneys-General has agreed to amend State referral of powers legislation and section 60H of the Commonwealth Family Law Act 1975 to remedy the jurisdictional gap between the Family Court and State child welfare courts where neither court has power to make effective orders in relation to children subject to State child welfare laws. It was further agreed to amend States referral of powers legislation in relation to maintenance for children subject to State child welfare legislation.
The Commonwealth enacted the Law and Justice Legislation Amendment Act 1992 to give effect to this decision.
At present, the provisions amended by the Law and Justice Legislation Amendment Act 1992 only operate in relation to the Territories. The Governor-General must make a Proclamation pursuant to subsection 60E(6) of the Family Law Act 1975 for the amendments to apply to a State.
Tasmania was the first State to give effect to that decision and enacted the Commonwealth Powers (Family Law) Amendment Act 1994 (Tas). The amendment to the regulations give effect to Tasmania's enactment and will also slightly extend the jurisdiction of the Family Court and more clearly define the matters reserved for Tasmanian State child welfare courts. That Act will commence on 1 November 1995. A Proclamation pursuant to subsection 60E 6) of the Family Law Act 1975 declares that amendments to Part VII of the Family Law Act 1975 made by the Law and Justice Legislation Amendment Act 1992 extend to Tasmania from 1 November 1995.
South Australia has requested that laws prescribed by schedule 5 of the Family Law Regulations be up-dated to include current references to South Australian legislation that has been repealed and replaced since originally inserted in the schedule.
Section 60 of the Family Law Act 1975 defines "child welfare laws" as "a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition".
Schedule 5 to the Family Law Regulations lists laws which are prescribed as "child welfare laws" for the purposes of the definition of that term in section 60 of the Family Law Act 1975.
Details of the Family Law Regulations are as follows:
Regulation 1 - provides for the Regulations to commence on 1 November 1995.
Regulation 2 - is a formal provision.
Regulation 3 - Regulation 3 amends Schedule 5 by referring to the Tasmanian legislation as listed in schedule 1 to the Commonwealth Powers (Family Law) Amendment Act) 1994 (Tas).
Regulation 3 also replaces the South Australian legislation with up to date references to their legislation. This will ensure that the references to South Australian legislation are current references.
Overview
The Family Law Regulations (Amendment) Proclamation 1995 No. 297, issued under the authority of the Attorney-General, amends the Family Law Regulations to implement changes arising from the Family Law Act 1975. This amendment was necessitated to address jurisdictional gaps between the Family Court and state child welfare courts, ensuring that both courts have the authority to make effective orders concerning children subject to state child welfare laws. This legislative action follows decisions made by the Standing Committee of Attorneys-General and the enactment of the Law and Justice Legislation Amendment Act 1992, which aimed to rectify these jurisdictional discrepancies. The proclamation gives effect to Tasmania's amendment of its referral of power to the Commonwealth, updating references to Tasmanian child welfare laws, and similarly updates references to prescribed child welfare laws for South Australia to reflect current legislation. This amendment seeks to streamline and clarify the jurisdictional boundaries between the Family Court and state child welfare courts, ensuring more effective legal oversight and protection for children involved in family law matters.
Scope and Application
The Family Law Regulations (Amendment) Proclamation 1995 No. 297 pertains to the Family Law Act 1975, with amendments specifically addressing the referral of child welfare powers from the states of Tasmania and South Australia to the Commonwealth. This amendment rectifies jurisdictional gaps between the Family Court and state child welfare courts by extending the jurisdiction of the Family Court and clarifying the matters reserved for state courts. The amendment applies to Tasmania, as indicated by the Commonwealth Powers (Family Law) Amendment Act 1994 (Tas), and to South Australia by updating the references to their child welfare laws. The regulations were enacted to give effect to the decisions made by the Standing Committee of Attorneys-General and the Law and Justice Legislation Amendment Act 1992, which initially operated only in the territories. The regulations, effective from 1 November 1995, adjust Schedule 5 of the Family Law Regulations to incorporate updated Tasmanian and South Australian child welfare laws, ensuring that the references to these laws are current.
Key Provisions
The Family Law Regulations (Amendment) Proclamation 1995 No. 297 amends the Family Law Regulations by incorporating the changes agreed to by the Standing Committee of Attorneys-General. These amendments aim to address jurisdictional gaps between the Family Court and State child welfare courts, ensuring that neither court lacks the power to make effective orders in relation to children subject to State child welfare laws. Specifically, Regulation 3 updates the Schedule 5 of the Family Law Regulations to reflect Tasmania's amendment of its referral of power to the Commonwealth and to include current references to South Australian legislation.
Under the amended Family Law Regulations, there are obligations on the parties or entities it governs. Primarily, these include ensuring that any reference to child welfare laws within the regulations is accurate and up-to-date. This is particularly pertinent for Tasmania and South Australia, where specific legislative changes have been incorporated. Parties must now refer to the updated Tasmanian legislation listed in Schedule 1 to the Commonwealth Powers (Family Law) Amendment Act 1994 (Tas) and updated South Australian legislation as prescribed in the regulations. This requirement ensures that legal practitioners, the Family Court, and other relevant authorities have the correct legal references when dealing with cases involving children subject to State child welfare laws.
The Family Law Act 1975 itself does not explicitly state offences, penalties, or civil/criminal consequences for breaches of the regulations. However, any failure to comply with the updated regulations could potentially lead to legal disputes or ineffective court orders, as the regulations are designed to ensure clarity and effectiveness in jurisdictional matters concerning child welfare laws. For instance, if the Family Court or a State child welfare court were to make an order without considering the updated regulations, it could result in the order being challenged or overturned. The primary consequence of such non-compliance would be the need for corrective action to ensure that all parties adhere to the updated legislative framework, thereby avoiding jurisdictional conflicts and ensuring that children's welfare is effectively protected.