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Monday, 20 October 2008
Page: 9487

Message from the Governor-General recommending appropriation for the bill and proposed amendments announced.

Bill returned from the Senate with requested amendments.

Ordered that the requested amendments be considered immediately.

Senate’s requested amendments—

(1)    Schedule 1, item 50, page 23 (lines 3 to 21), omit section 90RB, substitute:

90RB Meaning of child of a de facto relationship

                  For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.

Note:   To determine who is a child of a person see Subdivision D of Division 1 of Part VII.

(2)    Schedule 1, item 50, page 29 (line 24), omit “application time.”, substitute:

                       application time;

or that the alternative condition in subsection (1A) is met.

(3)    Schedule 1, item 50, page 29 (after line 24), after subsection 90SD(1), insert:

      (1A)    The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

(4)    Schedule 1, item 50, page 29 (lines 27 to 31), omit subsection 90SD(3), substitute:

         (3)    If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note:   Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(5)    Schedule 1, item 50, page 39 (line 25), omit “application time.”, substitute:

                       application time;

or that the alternative condition in subsection (1A) is met.

(6)    Schedule 1, item 50, page 39 (after line 25), after subsection 90SK(1), insert:

      (1A)    The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

(7)    Schedule 1, item 50, page 39 (lines 28 to 32), omit subsection 90SK(3), substitute:

         (3)    If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note:   Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(8)    Schedule 1, item 85, page 81 (after line 6), after the definition of commencement, insert:

designated agreed matters, in relation to 2 persons, means the following:

              (a)    how all or any of the:

                    (i)    property; or

                   (ii)    financial resources;

                       of either person, or both persons, at the time when the agreement is made, or at a later time and during a de facto relationship between them, is to be distributed;

              (b)    the maintenance of either of the persons;

in the event of the breakdown of a de facto relationship between them, or in relation to a de facto relationship between them that has broken down, as the case requires.

(9)    Schedule 1, item 85, page 81 (before line 7), before the definition of earlier participating jurisdiction, insert:

designated State/Territory financial agreement, in relation to 2 persons, means a written agreement:

              (a)    signed by both of them with respect to matters that include any designated agreed matters; and

              (b)    made under a preserved law of a State or Territory; and

              (c)    in relation to which, either:

                    (i)    a court could not, because of that preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the designated agreed matters; or

                   (ii)    a court could not, because of that preserved law, make an order under that law that is with respect to any of the designated agreed matters.

(10)  Schedule 1, heading to Division 2, page 81 (lines 22 to 24), omit the heading, substitute:

Division 2—Application of new Act to de facto relationships breaking down before commencement

(11)  Schedule 1, item 86, page 81 (line 27), omit “Parts VIIIAB and VIIIB of the new Act do not extend”, substitute “Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation”.

(12)  Schedule 1, page 82 (after line 17), after item 86, insert:

86A Opting into the new regime

Choosing the new regime

(1)    The parties to a de facto relationship that broke down before commencement may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1:             Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2:             Divisions 3 and 4 of this Part, and section 90UE of the new Act, are not affected by a choice under this item. Those Divisions, and that section, relate to de facto relationships that (if they are to break down) will break down after commencement.

When a choice can be made

(2)    A choice under subitem (1) can be made if:

              (a)    the choice is unconditional; and

              (b)    subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3)    This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

              (a)    how all or any of the:

                    (i)    property; or

                   (ii)    financial resources;

                       that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

              (b)    the maintenance of either of the parties to the de facto relationship.

(4)    This subitem is satisfied for the choice if:

              (a)    the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

              (b)    if the parties have made such an agreement, that agreement has ceased to have effect without:

                    (i)    any property being distributed; or

                   (ii)    any maintenance being paid;

                       under the agreement.

(5)    This subitem is satisfied for the choice if:

              (a)    the choice is in writing and signed by both of the parties to the de facto relationship; and

              (b)    each of the parties was provided, before the choice was signed by him or her, with:

                    (i)    independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

                   (ii)    a signed statement by the legal practitioner stating that this advice was given to the party.

(6)    For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7)    A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8)    A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

              (a)    the parties to the de facto relationship; and

              (b)    any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9)    Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

              (a)    a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

              (b)    the reference in those subsections to section 90UM of the new Act were a reference to this item.

(13)  Schedule 1, item 89, page 85 (line 5), omit “extend”, substitute “apply in relation”.

(14)  Schedule 1, item 89, page 85 (line 6), omit “extend”, substitute “apply in relation”.

(15)  Schedule 1, item 89, page 85 (line 8), omit “Note”, substitute “Note 1”.

(16)  Schedule 1, item 89, page 85 (line 12), omit “extend”, substitute “apply in relation”.

(17)  Schedule 1, item 89, page 85 (after line 13), after the note, insert:

Note 2:  The cases covered by paragraph (a) include a case where a de facto relationship has broken down before the transition time for the State and the parties to the relationship make a choice under item 90A.

(18)  Schedule 1, item 90, page 85 (line 35), omit “Parts VIIIAB and VIIIB of the new Act do not extend”, substitute “Subject to item 90A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation”.

(19)  Schedule 1, page 86 (after line 17), after item 90, insert:

90A Opting into the new regime

Choosing the new regime

(1)    The parties to a de facto relationship that broke down before the transition time for the State may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1:  Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2:  Items 91 and 92 are not affected by a choice under this item. Those items relate to de facto relationships that (if they are to break down) will break down after the transition time for the State.

When a choice can be made

(2)    A choice under subitem (1) can be made if:

              (a)    the choice is unconditional; and

              (b)    subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3)    This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

              (a)    how all or any of the:

                    (i)    property; or

                   (ii)    financial resources;

                       that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

              (b)    the maintenance of either of the parties to the de facto relationship.

(4)    This subitem is satisfied for the choice if:

              (a)    the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

              (b)    if the parties have made such an agreement, that agreement has ceased to have effect without:

                    (i)    any property being distributed; or

                   (ii)    any maintenance being paid;

                       under the agreement.

(5)    This subitem is satisfied for the choice if:

              (a)    the choice is in writing and signed by both of the parties to the de facto relationship; and

              (b)    each of the parties was provided, before the choice was signed by him or her, with:

                    (i)    independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

                   (ii)    a signed statement by the legal practitioner stating that this advice was given to the party.

(6)    For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7)    A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8)    A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

              (a)    the parties to the de facto relationship; and

              (b)    any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9)    Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

              (a)    a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

              (b)    the reference in those subsections to section 90UM of the new Act were a reference to this item.

(20)  Page 108 (after line 17), after Schedule 3, insert:

Schedule 3A—Children

Family Law Act 1975

1 Subsection 4(1)

Insert:

child: Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.

Note:   In determining if a child is the child of a person within the meaning of this Act, it is to be assumed that Part VII extends to all States and Territories.

2 Before section 60F

Insert:

60EA Definition of de facto partner

                  For the purposes of this Subdivision, a person is the de facto partner of another person if:

              (a)    a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or

              (b)    the person is in a de facto relationship with the other person.

3 Paragraph 60F(1)(c)

After “subsection 60H(1)”, insert “or section 60HB”.

4 After subsection 60F(4)

Insert:

      (4A)    To avoid doubt, for the purposes of this Act, a child of a marriage is a child of the husband and of the wife in the marriage.

5 Subsection 60G(2)

After “paragraph 60F(4)(a)”, insert “, or paragraph 60HA(3)(a),”.

6 Subsection 60H(1)

Repeal the subsection, substitute:

         (1)    If:

              (a)    a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

              (b)    either:

                    (i)    the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

                   (ii)    under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

              (c)    the child is the child of the woman and of the other intended parent; and

              (d)    if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.

7 Subsection 60H(4)

Repeal the subsection.

8 At the end of Subdivision D of Division 1 of Part VII

Add:

60HA Children of de facto partners

         (1)    For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if:

              (a)    the child is a child of the person and the person’s de facto partner; or

              (b)    the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or

              (c)    the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.

This subsection has effect subject to subsection (2).

         (2)    A child of current or former de facto partners ceases to be a child of those partners for the purposes of this Act if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent.

         (3)    The following provisions apply in relation to a child of current or former de facto partners who is adopted by a prescribed adopting parent:

              (a)    if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of those partners for the purposes of this Act;

              (b)    in any other case—the child continues to be a child of those partners for the purposes of this Act.

         (4)    In this section:

this Act includes:

              (a)    the standard Rules of Court; and

              (b)    the related Federal Magistrates Rules.

60HB Children born under surrogacy arrangements

         (1)    If a court has made an order under a prescribed law of a State or Territory to the effect that:

              (a)    a child is the child of one or more persons; or

              (b)    each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

         (2)    In this section:

this Act includes:

              (a)    the standard Rules of Court; and

              (b)    the related Federal Magistrates Rules.

9 Application

Application to children

(1)    Subject to subitems (2) to (8), the amendments made by this Schedule apply in relation to a child born before, on or after the commencement of this item.

Application to the Aged Care Act 1997

(2)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect subparagraph 44-11(2)(a)(i) of the Aged Care Act 1997, they apply in relation to that subparagraph on and after 1 July 2009.

Application to the A New Tax System (Family Assistance) Act 1999

(3)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 22(2)(b) of the A New Tax System (Family Assistance) Act 1999, they apply in relation to that paragraph on and after 1 July 2009.

Application to the Child Support (Assessment) Act 1989

(4)    To the extent that the amendment of subsection 60H(1), and the repeal of subsection 60H(4), of the Family Law Act 1975 made by this Schedule affect paragraph (b) of the definition of parent in subsection 5(1) of the Child Support (Assessment) Act 1989, they apply in relation to that paragraph on and after 1 July 2009.

Application to the Child Support (Registration and Collection) Act 1988

(5)    To the extent that the amendment of paragraph 60F(1)(c) of the Family Law Act 1975 made by this Schedule affects the definition of child of a marriage in subsection 4(1) of the Child Support (Registration and Collection) Act 1988, it applies in relation to that definition on and after 1 July 2009.

Application to the Health Insurance Act 1973

(6)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph (a) of the definition of dependent child in subsection 10AA(7) of the Health Insurance Act 1973, they apply in relation to that paragraph on and after 1 January 2009.

Application to the National Health Act 1953

(7)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 84(4)(b), and paragraph (a) of the definition of dependent child in subsection 84B(4) of the National Health Act 1953, they apply in relation to those paragraphs on and after 1 January 2009.

Application to the Social Security Act 1991

(8)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 5(2)(a), subparagraph (b)(i) of point 1067G-B3AA, subparagraph (b)(i) of subpoint 1067G-G9(2) and subparagraph (a)(i) of point 1068-B1B of the Social Security Act 1991, they apply in relation to those provisions on and after 1 July 2009.