Family Law Regulations (Amendment) 1994 No. 343
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 343
Issued by the Authority of the Attorney-General
Family Law Act 1975
Family Law Regulations (Amendment)
Regulation 125(1) of the Family Law Act 1975 (the Act) empowers the Governor-General to make regulations for the purposes of the Act.
The purpose of making an amendment to regulation 12D of the Family Law Regulations is to add Western Australia and Queensland to the list of prescribed states for the purposes of section 67(1A) of the Act.
This amendment was deemed necessary when it became apparent that certain children who were the subject of a custody order of the Family Court of Western Australia under the Family Court Act 1975 (WA Act) did not enjoy the protection of section 70A of the Act. The children in question are exnuptial children and Western Australia is the only state which has not referred power to the Commonwealth over such children.
Section 70A of the Act prevents the removal from Australia of a child who is the subject of a custody, guardianship or access order under the Act. The section enables the Australian Federal Police to put on their airport 'watch list' the names of children who are at risk of being removed illegally from the country. An order under the WA Act is not "an order made by a court in Australia" for the purposes of section 70A of the Act.
Section 67(1A) of the Act provides for the Rules of Court to make provision for the registration in the Family Court of Australia of a custody order made under the law of a prescribed state or territory. Regulation 12D lists those states and territories which are prescribed for the purposes of section 67(1A) of the Act. A custody order made under the WA Act could be registered under this section if Western Australia was a prescribed state. Ex-nuptial children in Western Australia would then enjoy the protection of section 70A of the Act.
Queensland is also to be included as a prescribed state in regulation 12D. Because Queensland has now referred its powers over ex-nuptial children to the Commonwealth, it should no longer be omitted from regulation 12D.
Overview
The Family Law Regulations (Amendment) 1994 No. 343 was enacted to address the issue of ex-nuptial children in Western Australia not being protected under section 70A of the Family Law Act 1975. This was due to Western Australia being the only state that had not referred its power over such children to the Commonwealth. The regulation amendment aimed to include Western Australia and Queensland in the list of prescribed states for the purposes of section 67(1A) of the Act, allowing custody orders made under their respective laws to be registered in the Family Court of Australia. This amendment ensures that ex-nuptial children in these states are afforded the same protection as those in other states, preventing their illegal removal from Australia. The amendment was issued by the authority of the Attorney-General and was deemed necessary to align with the overarching policy objective of the Family Law Act 1975 to protect children's interests in family law matters.
Scope and Application
The Family Law Regulations (Amendment) 1994 No. 343 pertains to the Family Law Act 1975 and specifically amends regulation 12D of the Family Law Regulations. This amendment is intended to include Western Australia and Queensland as prescribed states under section 67(1A) of the Act, thereby allowing custody orders made under the Family Court Act 1975 of Western Australia and the Family Law Act of Queensland to be registered in the Family Court of Australia. This amendment is crucial to extend the protections afforded by section 70A of the Family Law Act to ex-nuptial children in these states. Section 70A prevents the removal from Australia of a child who is the subject of a custody, guardianship, or access order and enables the Australian Federal Police to monitor these children's names on airport watch lists. Initially, Western Australia was excluded as it had not referred its power over ex-nuptial children to the Commonwealth, while Queensland, having recently done so, was also omitted from the regulation. The inclusion of these states ensures that ex-nuptial children are uniformly protected under the Act across all jurisdictions.
Key Provisions
The Family Law Regulations (Amendment) 1994 No. 343 amends the Family Law Regulations under the Family Law Act 1975 (the Act). Specifically, it modifies regulation 12D to include Western Australia and Queensland as prescribed states for the purposes of section 67(1A) of the Act. This change ensures that custody orders made under the Family Court Act 1975 in these states can be registered in the Family Court of Australia. This amendment aims to extend the protection provided by section 70A of the Act to ex-nuptial children in these states. Section 70A prevents the removal from Australia of a child who is the subject of a custody, guardianship, or access order under the Act, and allows the Australian Federal Police to place such children on an airport watch list to prevent illegal removal.
The obligations and requirements imposed by these regulations primarily concern the registration of custody orders made under the laws of prescribed states in the Family Court of Australia. With the inclusion of Western Australia and Queensland in regulation 12D, the courts in these states must ensure that custody orders for ex-nuptial children are registered in the Family Court of Australia. This registration facilitates the application of section 70A, which provides protection against the illegal removal of children from Australia. Additionally, the amendment necessitates that the Australian Federal Police update their watch lists to include children covered under the amended regulation.
Failure to comply with the provisions of the Family Law Act 1975 and the amended Family Law Regulations may result in significant legal consequences. Under section 124 of the Act, any person who contravenes the Act or the regulations may be subject to penalties. The specific penalties are not detailed within the explanatory statement but generally, breaches of the Act can result in fines or imprisonment. For example, under section 126, a person who wilfully obstructs or hinders the execution of any order or process of the Family Court can be subject to a fine not exceeding 50 penalty units or imprisonment for six months, or both. Furthermore, section 70A itself may attract additional penalties if a child is removed from Australia in contravention of the Act, thereby exposing the individual to both civil and criminal liabilities.
In summary, the Family Law Regulations (Amendment) 1994 No. 343 ensures that custody orders for ex-nuptial children in Western Australia and Queensland are recognised and protected under the Family Law Act 1975. This amendment imposes an obligation on these states to register such orders in the Family Court of Australia, thereby extending the protective measures of section 70A to these children. Non-compliance with the Act and its regulations can lead to substantial penalties, reinforcing the importance of adherence to these legal provisions.