Family Law Regulations 1991 No. 401
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 401
FAMILY LAW ACT 1975
FAMILY LAW REGULATIONS
Subsection 125(1) of the Family Law Act 1975 provides that the Governor-General may make regulations for the purposes of the Act. The Family Law Act will be amended by the Courts (Mediation and Arbitration) Act 1991 which commences on 27 December 1991.
Paragraph 125(1)(ba) of the Act will provide that the Governor-General may make regulations providing for and in relation to the approval of mediators and arbitrators. Section 4 of the Family Law Act will provide that an approved mediator means a mediator approved under the Regulations.
Section 19A of Act will provide that a parent or adoptive parent of a child, a child, or a party to a marriage who is not a party to proceedings under the Act may file a notice asking for the help of a mediator in settling a dispute to which a person is a party. If a mediation service is available at the Registry of the Court and the dispute is one that, under the Rules of Court, may be mediated, the appropriate officer of the Court must make arrangements for an approved mediator to mediate the dispute in accordance with the Rules of Court.
Section 19B will provide that, subject to the Rules of Court, the Family Court or the Family Court of a State may, with the consent of the parties to any proceedings before it under the Act (other than proscribed proceedings) make an order referring any or all of the matters in dispute in the proceedings for mediation by an approved mediator.
Section 19K of the Act will provide that an approved mediator must, before starting to perform the functions of such a mediator, make an oath or affirmation of secrecy in accordance with the prescribed form before a person authorised under a law of the Commonwealth or a State to take affidavits.
The proposed Regulations provide for the Chief Justice to approve persons, who are suitable by reasons of their training and experience, as mediators for the purposes of sections 19A and 19B of the Family Law Act, and the form of the oath or affirmation to be taken by approved mediators.
Details of the proposed Regulations are as follows:
Regulation 7A provides for the Chief Justice to approve persons who are suitable by reasons of their training and experience as mediators for the purposes of sections 19A and 19B of the Family Law Act.
Regulation 9A provides the form of the oath or affirmation of secrecy to be taken by an approved mediator before he or she can perform the functions of an approved mediator.
Minister for Justice and Consumer Affairs
Overview
The Family Law Regulations 1991, which were enacted under the authority of the Family Law Act 1975, were introduced to address the need for structured mediation and arbitration services in family law disputes. These regulations were established to implement the amendments brought by the Courts (Mediation and Arbitration) Act 1991, which sought to formalise the role of mediators and arbitrators within family law proceedings. The Minister for Justice and Consumer Affairs, as the enacting body, intended these regulations to enhance the efficiency and effectiveness of resolving family disputes through mediation. The policy objective was to ensure that mediators and arbitrators were appropriately trained and experienced, thereby providing a reliable and confidential service to the parties involved. The regulations aim to facilitate the mediation process by establishing criteria for the approval of mediators and prescribing the form of the oath or affirmation they must take, ensuring their commitment to secrecy and professionalism.
Scope and Application
The Family Law Regulations 1991, made under the Family Law Act 1975, apply to the regulation of mediators and arbitrators in family law proceedings in Australia. These regulations empower the Chief Justice to approve individuals who are deemed suitable by reason of their training and experience to act as mediators under sections 19A and 19B of the Act. Approved mediators are tasked with facilitating the resolution of disputes related to family law, including those involving children and marriages, in accordance with the Rules of Court. Additionally, the regulations establish the requirements for an oath or affirmation of secrecy that approved mediators must take before performing their functions, as stipulated in Regulation 9A. These regulations have a national reach, affecting all jurisdictions within Australia where the Family Law Act 1975 applies. The regulations do not explicitly provide for exclusions or exemptions but operate within the framework set by the Family Law Act and the Courts (Mediation and Arbitration) Act 1991. Subordinate instruments may further extend or detail the application of these regulations as deemed necessary by the Chief Justice or relevant authorities.
Key Provisions
The Family Law Regulations 1991, made under section 125(1) of the Family Law Act 1975, provide a framework for the approval of mediators and arbitrators, as well as the requirements they must meet to perform their functions. Regulation 7A allows the Chief Justice to approve individuals as mediators based on their training and experience. This regulation is particularly relevant to sections 19A and 19B of the Family Law Act, which pertain to the mediation of disputes related to parenting, child support, and other family law matters. An approved mediator, as defined in section 4 of the Family Law Act, must take an oath or affirmation of secrecy before commencing their duties, as stipulated in Regulation 9A.
The obligations imposed by these regulations on approved mediators are significant. Approved mediators must undergo a formal approval process overseen by the Chief Justice, ensuring that they possess the requisite training and experience. Additionally, they must adhere to a strict code of confidentiality, taking an oath or affirmation of secrecy before engaging in their mediation duties. This requirement is designed to maintain the integrity and privacy of the mediation process, fostering an environment where parties can openly discuss sensitive issues.
Failure to comply with the obligations outlined in the Family Law Regulations 1991 can lead to severe consequences. While the Family Law Regulations themselves do not explicitly detail specific penalties for non-compliance, the Family Law Act 1975 provides a framework for potential sanctions. Breaches of the Act's provisions, such as failing to adhere to the secrecy requirements or engaging in misconduct while performing mediation duties, could result in civil or criminal penalties. The precise penalties would depend on the nature and severity of the breach, with potential outcomes including fines, imprisonment, or both, as determined by the relevant court.