EXPLANATORY STATEMENT
FAMILY LAW ACT 1975
Family Law Regulations (Amendment)
Statutory Rules 1988 No. 42
The Family Law Amendment Act 1987 (the Amendment Act) received the Royal Assent on 26 December 1987. Part II of the Amendment Act, amongst other things, amended the Family Law Act 1975 (the Act) to provide that certain matters be prescribed. Sub-section 125(1) of 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 or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Section 24 of the Amendment Act inserts section 66W in the Act to enable, in proceedings under the Act where the parentage of a child is at issue, a court to order persons including the child to submit to parentage testing procedures. Subsection 66W(9) enables regulations to make provision for the carrying out of those procedures, and the preparation of reports in relation to the information obtained as a result of them. Section 2 of the Amendment Act provides that the Amendment Act shall come into operation on a day to be fixed by Proclamation. The Governor-General, by Proclamation, fixed 1 April 1988 as that day.
The purpose of the regulations is to amend the Family Law Regulations to -
• prescribe those matters required or permitted by amendments made by Part II of the Amendment Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to amendments made by Part II of the Amendment Act;
• provide for the carrying out of parentage testing procedures and the preparation of reports in relation to the information obtained as a result of them.
Details of the regulations are at Attachment A.
(Authorised by the Attorney-General)
Attachment A
NOTES ON REGULATIONS
Regulation 1 inserts new regulations 12A, 12B, 12C and 12D.
The new regulation 12A prescribes the pensions, allowances and benefits specified at paragraphs (a) to (o) for the purposes of the definition of “income tested pension, allowance or benefit” in subsection 4(1) of the Act.
The new regulation 12B prescribes the State and Territory laws specified in Schedule 5 for the purposes of the definition of “child welfare laws” in subsection 4(1) of the Act.
The new regulation 12C prescribes the State and Territory laws specified in Schedule 6 as prescribed laws for the purposes of subsection 60B(1) of the Act.
The new regulation 12D prescribes the States and Territories to which new Part VII of the Act, inserted by the Amendment Act, extends and applies. This will enable custody and access orders made in proceedings instituted before the commencement of the Amendment Act in those State and Territories under State and Territory law to be registered under for the purposes of their enforcement under new subsection 67(1A) of the Act. Orders of this kind made by a court in Queensland and Western Australia, to which new Part VII of the Act does not extend, are capable of registration for the purposes of their enforcement in a court of another State having jurisdiction under the Act under existing subsection 67(1) of the Act.
Regulation 2 amends subregulation 15(3) of the existing regulations as a result of the separation by the Amendment Act of the provisions of the Act in relation to child and spousal maintenance into Part VII and Part VIII respectively.
Regulation 3 inserts new Part IIA to provide for the carrying out of parentage testing procedures in relation to a child whose parentage is at issue in proceedings under the Act and in relation to other persons where information would be obtained to assist to determine the parentage of the child.
The new Part IIA contains new regulations 21A to 21G inclusive.
The new regulation 21A provides for the definition of several terms used in the new Part.
The new regulation 21B prescribes the medical procedures specified at paragraphs (a) to (e) for the purposes of the definition of “parentage testing procedure” in new section 60 of the Act. The medical procedures prescribed by new regulation 21B require the collection of a sample of blood from the persons in relation to which the parentage testing procedure is to be carried out.
The new regulation 21C provides for the collection of blood samples, placement of such blood sample in containers, labelling of the containers and authentication of the labelling of the containers by the persons in relation to whom a parentage testing procedure is to be carried out. Where a parentage testing procedure is to be carried out in relation to a child or a person suffering from a mental disability, the labelling is, under new subregulation 21C(2), to be authenticated by other persons having responsibility for the child or person.
The new subregulation 21D(1) and (2) provides for the storage requirements of the container containing the blood and the time within which the container of blood is to be available for testing at the place at which the parentage testing procedure is to be carried out. These requirements vary according to each particular parentage testing procedure.
The new subregulation 21D(3) provides for the forwarding to the place of testing of the containers of blood with completed forms in accordance with Forms 2 and 3 of Schedule 1. Form 2 is a form completed by the person collecting the blood sample to ensure identification of each person in relation to whom the parentage testing procedure is to be carried out. The new subregulation 21D(4) requires photographs of each of those persons to be affixed to Form 2 and the person collecting the blood sample to sign over the affixed photograph in such a manner to ensure that removal of the photograph from the form after signature would be evident on inspection.
The new regulation 21E provides for each person in relation to whom a parentage testing procedure is to be carried out to complete an affidavit in accordance with Form 3 of the Schedule 1. Where a parentage testing procedure is to be carried out in relation to a child or a person suffering from a mental disability, the affidavit is to be completed, by virtue of new subregulation 21E(2), by other persons having responsibility for each child or person. The purpose of the affidavit is to require each person in relation to whom the parentage testing procedure is to be carried out to provide particulars of any illness, medical condition, blood transfusion or medication taken that may affect the inheritable characteristics of his or her blood.
The new regulation 21F will provide the Attorney-General with a power of appointment of persons, either as individuals or as a class of persons employed at a particular place, to prepare reports under subsection 66W(9) of the Act. A report in relation to results of the carrying out of a parentage testing procedure by a person other than a person so appointed by the Attorney-General may not be received in evidence under new subsection 66W(10) of the Act.
The new regulation 21G provides for a report in relation to the carrying out of a parentage testing procedure to be in accordance with Form 4 in Schedule 1.
Regulation 4 amends Schedule 1 of the existing regulations to insert Forms 2, 3 and 4 in the Schedule.
Regulation 5 inserts Schedules 5 and 6. Schedules 5 and 6 are referred to in new regulations 12A and 12B respectively.