Family Law Regulations (Amendment) 1996 No. 71
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 71
Issued by the Authority of the Attorney-General
Family Law Act 1975
Family Law Regulations (Amendment)
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 (the regulations) first, make a series of amendments which are consequential upon the passing of the Family Law Reform Act 1995 (the Reform Act). These amendments take into account the terminology and re-numbering changes to the Act as a result of the Reform Act. The amendments also regulate certain aspects of private and community mediators, provide for a revised location orders procedure, amend and update family violence provisions and amend provisions dealing with the recognition and enforcement of overseas maintenance orders.
Section 19P of the Reform Act provides that the regulations may prescribe requirements to be complied with by community mediators and private mediators in relation to the family and child mediation services they provide.
The regulations provide for minimum levels of qualifications, training, and experience for community and private mediators. The regulations also contain a set of consumer protection provisions. All potential parties to a mediation are required to be assessed by a mediator to ensure that the parties are in a position to negotiate freely. Issues such as family violence, safety of the parties and equality of bargaining power are addressed to ensure that the matter in dispute is appropriate for mediation.
The regulations also provide that information on factors such as the process of mediation, child's interests issues, the right to terminate a mediation session, the right to obtain legal advice, the immunity of mediators from any civil liability, the inadmissibility, confidentiality and disclosure obligations, qualifications of the mediators and other factors has to be given to the parties in a written statement prior to the mediation. The regulations also contain provisions relating to the advertising of the services of family and child counsellors and mediators and approved arbitrators.
The Reform Act amends the Act in relation to location orders and enables a Court to make an 'Commonwealth information order'. A Court is empowered to make a Commonwealth information order if it is satisfied that information about a child's location is likely to be contained in or come into the records of a Department or Commonwealth instrumentality. The amendments to the regulations contain a list of Departments and Government instrumentalities prescribed for the purpose of the making of a Commonwealth information order. To allow a Department or Government instrumentality to put information relevant to the making of an order to the court, a Commonwealth information order may not be made against a prescribed department or instrumentality until 7 days after service of the application, except in special circumstances.
The Reform Act provides for State and Territory Courts exercising jurisdiction in family violence matters to make an order which revives, varies, discharges or suspends an existing Family Court contact order. An amendment to the regulations will provide a method for a copy of the State or Territory Court's order which made, revived, varied, discharged or suspended a Family Court contact order to be registered in the Family Court.
The amendments update Schedule 5 of the regulations. Section 60 of the Act 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.
The amendments include a new schedule 8 to the regulations. Section 60D of the Reform Act defines a family violence order as an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence. Schedule 8 to the regulations lists laws which are prescribed laws of a State or Territory to protect a person from family violence.
The regulations also make minor amendments to Schedule 2 to the Family Law regulations to allow the recognition and enforcement in Australia of maintenance orders made by courts in the Slovak Republic and the Republic of Ireland.
Overview
The Family Law Regulations (Amendment) 1996 No. 71 were introduced to address the need for updated and more comprehensive regulations to align with the provisions of the Family Law Reform Act 1995. These amendments were enacted under the authority of the Attorney-General to ensure the Family Law Act 1975 could be administered effectively in light of the legislative changes brought about by the Reform Act. The primary objective of these regulations is to update and refine the regulatory framework surrounding family law, particularly focusing on mediation practices, location orders, family violence provisions, and the recognition of overseas maintenance orders. The regulations aim to set minimum standards for qualifications, training, and experience of mediators, ensuring consumer protection and appropriate mediation practices, while also facilitating the process of obtaining and enforcing location orders related to children and updating the definitions and provisions related to family violence and child welfare.
Scope and Application
The Family Law Regulations (Amendment) 1996 No. 71 applies to various aspects of family law within Australia, encompassing both individuals and entities involved in family law matters. The regulations are made under the authority of the Family Law Act 1975, and they extend to the entire Commonwealth of Australia, ensuring a uniform application across all states and territories. The amendments introduced by these regulations are consequential upon the Family Law Reform Act 1995, reflecting changes in terminology and re-numbering within the Act. They focus on areas such as family and child mediation, family violence, location orders, and the recognition and enforcement of overseas maintenance orders. Specifically, the regulations set out requirements for community and private mediators, including minimum qualifications, training, and experience, as well as consumer protection provisions to ensure that mediation is suitable and appropriate for the parties involved. Additionally, the regulations update and expand the list of departments and government instrumentalities that can be subject to Commonwealth information orders, thereby facilitating the sharing of information pertinent to child location. The amendments also streamline the process for registering orders made by state and territory courts in relation to existing Family Court contact orders, ensuring a coordinated approach to family law matters across different jurisdictions. Furthermore, the regulations update and expand the lists of child welfare laws and family violence laws to reflect current legal frameworks.
Key Provisions
The Family Law Regulations (Amendment) 1996 No. 71 introduces several key provisions that are consequential upon the passing of the Family Law Reform Act 1995. Section 19P of the Reform Act allows the regulations to prescribe requirements for community mediators and private mediators in relation to the family and child mediation services they provide. These requirements ensure that mediators possess a minimum level of qualifications, training, and experience, and include provisions for consumer protection. For example, parties to a mediation must be assessed by a mediator to ensure they are in a position to negotiate freely, taking into account issues such as family violence, safety, and equality of bargaining power.
The amendments also impose specific obligations on mediators. These include providing written information to parties before mediation begins, detailing aspects such as the mediation process, the child's interests, the right to terminate a session, the right to legal advice, and the mediators' immunity from civil liability. Additionally, mediators must adhere to strict confidentiality and disclosure obligations, and the regulations outline the qualifications of the mediators. The amendments further mandate that information on advertising family and child counsellors, mediators, and approved arbitrators must comply with specified standards to protect consumers.
In terms of location orders, the regulations amend the procedure to include a 'Commonwealth information order', which allows a court to request information about a child's location that may be held by a Department or Commonwealth instrumentality. A list of prescribed departments and government instrumentalities is provided, and a Commonwealth information order cannot be made against these entities unless specific conditions are met, including a 7-day service period unless special circumstances apply. State and Territory Courts exercising jurisdiction in family violence matters can now make orders that revive, vary, discharge, or suspend an existing Family Court contact order, and the regulations provide a method for registering such orders in the Family Court.
The Family Law Regulations (Amendment) 1996 No. 71 also includes provisions for offences, penalties, and consequences for breach. While specific penalties are not detailed in the explanatory statement, breaches of the regulations could potentially lead to civil or criminal consequences depending on the nature of the breach. For example, failing to comply with the consumer protection provisions or advertising standards could result in penalties under relevant consumer protection laws, while more serious breaches, such as those involving family violence or child safety, could result in criminal charges or penalties.