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Family Law Amendment Bill 2000

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1998-1999-2000

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Family Law Amendment Bill 1999

 

 

(Amendments to be moved on behalf of the Government)

 

(1)     Clause 2, page 1 (line 7), omit “subsection (2)”, substitute “subsections (1A) and (2)”.

[commencement]

(2)     Clause 2, page 1 (after line 8), after subclause (1), insert:

          (1A)  Items 31A and 117 of Schedule 3 commence on the day on which this Act receives the Royal Assent.

[commencement]

(3)     Schedule 1, heading, page 3 (line 2), omit “ Sanctions for ”, substitute “ Consequences of ”.

[technical correction]

(4)     Schedule 1, item 3, pages 3 and 4, omit the item, substitute:

3  Section 60C (after table item 13)

Insert:

13A

Division 13A Enforcement of orders affecting children

•              court may do either or both of the following:

(a)           require a person who contravenes an order affecting children to attend a nominated post-separation parenting program designed to help in the resolution of conflicts about parenting;

(b)           make a further parenting order that compensates for contact forgone as a result of the contravention;

—stage 2 of parenting compliance regime

•              court must take other action in respect of a person who contravenes an order affecting children if the court is satisfied:

(a)           where the contravention is an initial contravention—that the person has behaved in a way that showed a serious disregard for his or her parenting obligations; or;

(b)           where the contravention is a second or subsequent contravention—that it is not appropriate for the person to be dealt with by requiring his or her attendance at a post-separation parenting program;

—stage 3 of parenting compliance regime

[section 60C—outline of Part]

(5)     Schedule 1, item 4, page 5 (lines 6 and 7), omit paragraph (c), substitute:

                     (c)  the availability of programs to help people who experience difficulties in complying with a parenting plan.

[section 63DA—parenting plans]

(6)     Schedule 1, item 4, page 5 (after line 7), at the end of section 63DA, add:

             (2)  A court may cause to be prepared, and given to persons who are making a parenting plan, a document setting out particulars of the availability of programs to help people who experience difficulties in complying with a parenting plan.

[section 63DA—parenting plans]

(7)     Schedule 1, after item 4, page 5 (before line 8), insert:

4A  Subsection 63F(3) (paragraph (b) of the note)

Omit “Parts XIII and XIIIA”, substitute “Division 13A of this Part and Part XIII”.

[section 63F—child welfare provisions]

(8)     Schedule 1, item 5, page 5 (line 19), omit “Punitive”, substitute “Further”.

[technical amendment]

(9)     Schedule 1, item 5, page 5 (line 20), omit “punished”, substitute “dealt with”.

[technical amendment]

(10)   Schedule 1, item 6, page 5 (line 25) to page 6 (line 16), omit section 65DA, substitute:

65DA   Parenting orders: stage 1 of parenting compliance regime

             (1)  This section applies when a court makes a parenting order.

             (2)  It is the duty of the court to include in the order particulars of:

                     (a)  the obligations that the order creates; and

                     (b)  the consequences that may follow if a person contravenes the order.

             (3)  If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons:

                     (a)  the availability of programs to help people to understand their responsibilities under parenting orders; and

                     (b)  the availability and use of location and recovery orders to ensure that parenting orders are complied with.

             (4)  The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in paragraphs (3)(a) and (b).

             (5)  If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner:

                     (a)  to assist in explaining to the person the matters mentioned in paragraphs (2)(a) and (b); and

                     (b)  to explain to the person the matters mentioned in paragraphs (3)(a) and (b).

             (6)  If a request is made by the court to a legal practitioner under paragraph (5)(a) or (b), it is the duty of the practitioner to comply with the request.

             (7)  Failure to comply with a requirement of, or with a request made under, this section does not affect the validity of a parenting order.

             (8)  Any matter that is required by this section to be included in a parenting order or any explanation that is required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given.

[section 65DA—parenting orders]

(11)   Schedule 1, page 6 (after line 16), after item 6, insert:

6A  Paragraphs 65Q(1)(c) and (d)

Omit “section 112AD”, substitute “Division 13A”.

[section 65Q—warrants]

(12)   Schedule 1, after proposed item 6A, insert:

6B  Paragraphs 65U(1)(b) and (c)

Omit “section 112AD”, substitute “Division 13A”.

[section 65U—obligation of court]

(13)   Schedule 1, after proposed item 6B, insert:

6C  Paragraphs 65V(1)(b) and (c)

Omit “section 112AD”, substitute “Division 13A”.

[section 65V—obligation of court]

(14)   Schedule 1, item 7, page 6 (line 19), omit “ Sanctions for ”, substitute “ Consequences of ”.

[technical correction]

(15)   Schedule 1, item 7, page 6 (line 22) to page 7 (line 8), omit section 70NA.

[section 70NA—objects of Division]

(16)   Schedule 1, item 7, page 7 (lines 11 to 15), omit the definition of applicable Rules of Court .

[section 70NB—definitions]

(17)   Schedule 1, item 7, page 7 (after line 20), after the definition of applied provisions , insert:

appropriate post-separation parenting program or appropriate program , in relation to a person, means a post-separation parenting program that is available within a reasonable distance from the person’s place of residence or place of work.

[section 70NB—definitions]

(18)   Schedule 1, item 7, page 7 (lines 21 and 22), omit the definition of community service order , substitute:

community service order has the meaning given by subsection 70NK(2A).

[section 70NB—definitions]

(19)   Schedule 1, item 7, page 8 (lines 14 to 21), omit the definition of participate .

[section 70NB—definitions]

(20)   Schedule 1, item 7, page 8 (lines 22 to 33), omit the definition of post-separation parenting program , substitute:

post-separation parenting program or program means a program that:

                     (a)  is designed (including by providing counselling services or by teaching techniques to resolve disputes) to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities; and

                     (b)  is included in a list of programs compiled by the Attorney-General; and

                     (c)  consists of lectures, discussions (including group discussions) or other activities.

[section 70NB—definitions]

(21)   Schedule 1, item 7, page 8, after proposed new definition of post-separation parenting program , insert:

primary order has the meaning given by section 70NF or 70NJ.

[section 70NB—definitions]

(22)   Schedule 1, item 7, page 9 (line 29), after “subsections”, insert “(1A),”.

[section 70NE—reasonable excuse]

(23)   Schedule 1, item 7, page 9 (after line 30), after subsection 70NE(1), insert:

          (1A)  A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

                     (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

                     (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

          (1B)  If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (1A)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

[section 70NE—reasonable excuse]

(24)   Schedule 1, item 7, page 10 (after line 30), at the end of Subdivision A, add:

70NEA  Standard of proof of reasonable excuse

                   The standard of proof to be applied in determining, in proceedings under this Division, whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention is proof on the balance of probabilities.

[section 70NEA—standard of proof]

(25)   Schedule 1, item 7, page 10 (line 31) to page 12 (line 18), omit Subdivision B, substitute:

Subdivision B Powers of court where a person contravenes an order under this Act affecting children: stage 2 of parenting compliance regime

70NF   Application of Subdivision

             (1)  Subject to subsection (2), this Subdivision applies if:

                     (a)  an order under this Act affecting children (the primary order ) has been made, whether before or after the commencement of this Division; and

                     (b)  a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, without reasonable excuse, committed a contravention (the current contravention ) of the primary order; and

                     (c)  either of the following applies:

                              (i)  no court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order;

                             (ii)  a court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order but the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision;

and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.

             (2)  This Subdivision does not apply if, in circumstances mentioned in subparagraph (1)(c)(i), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

70NG   Powers of court

             (1)  If this Subdivision applies, the court may do either or both of the following:

                     (a)  make an order in respect of the person who committed the current contravention, or (subject to subsection (2)) in respect of both that person and another specified person, as follows:

                              (i)  directing the person or each person to attend before the provider of a specified appropriate post-separation parenting program so that the provider can make an initial assessment as to the suitability of the person concerned to attend such a program;

                             (ii)  if a person so attending before a provider is assessed by the provider to be suitable to attend such a program or a part of such a program and the provider nominates a particular appropriate program for the person to attend—directing the person to attend that program or that part of that program;

                     (b)  make a further parenting order that compensates for contact forgone as a result of the current contravention.

             (2)  The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

                     (a)  the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

                     (b)  the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

             (3)  If the court makes an order under paragraph (1)(a) that a person is to attend before the provider of a program for assessment, or is to attend a program, the court must cause the provider of the program to be notified, in accordance with the applicable Rules of Court, of the making of the order.

70NH  Duties of provider of program

             (1)  The provider of a program before whom a person attends under an order made under subparagraph 70NG(1)(a)(i) must inform the court, in accordance with the applicable Rules of Court, if the person is unsuitable to attend any program.

             (2)  If a person is ordered to attend a program or a part of a program, the provider of the program must inform the court, in accordance with the applicable Rules of Court, if:

                     (a)  the person fails to attend the program or the part of the program; or

                     (b)  the provider considers that the person is unsuitable to take any further part in the program or part of the program.

70NI  Evidence

                   Evidence of anything said, or of any admission made, by a person attending before the provider of a program for assessment, or attending a program, is not admissible:

                     (a)  in any court (whether exercising federal jurisdiction or not); or

                     (b)  in any proceedings before a person authorised by a law of the Commonwealth, of a State or of a Territory, or by the consent of the parties, to hear evidence.

70NIA   Court may make further orders in relation to attendance at program

                   If it appears to the court that a person has not attended a program or a part of a program that the person was ordered to attend, the court may, by order, give further directions to the person with respect to the person’s attending the program.

70NIB   List of programs

                   The Attorney-General:

                     (a)  is to compile, for each calendar year, a list of post-separation parenting programs; and

                     (b)  is to publish the list in such manner as he or she determines; and

                     (c)  if he or she amends the list during the calendar year for which it is compiled—is to publish a revised list in such manner as he or she determines.

[sections 70NF-70NIB—attendance at parenting programs]

(26)   Schedule 1, item 7, page 12 (line 19), omit “ punitive ”.

[technical correction]

(27)   Schedule 1, item 7, page 12 (line 22), omit “ Punitive ”.

[technical correction]

(28)   Schedule 1, item 7, page 12 (line 23) to page 13 (line 28), omit subsections 70NJ(1) and (2), substitute:

             (1)  Subject to subsection (2), this Subdivision applies if:

                     (a)  an order under this Act affecting children (the primary order ) has been made, whether before or after the commencement of this Division; and

                     (b)  a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, without reasonable excuse, committed a contravention (the current contravention ) of the primary order; and

                     (c)  either of the following applies:

                              (i)  no court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order but the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order;

                             (ii)  a court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order.

Note:          For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 140 of the Evidence Act 1995 .

             (2)  This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision B.

          (2A)  If this Subdivision applies, the court must make, in respect of the person who committed the current contravention, the order or orders available to be made under subsection (3) that it considers to be the most appropriate in the circumstances.

          (2B)  This section applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

[section 70NJ—further powers of court]

(29)   Schedule 1, item 7, page 13 (line 29), omit “sanctions that are available to be imposed”, substitute “orders that are available to be made”.

[technical correction]

(30)   Schedule 1, item 7, page 14 (lines 13 to 23), omit paragraphs (a) to (c), substitute:

                     (a)  the person who contravened the parenting order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;

                     (b)  there was no appropriate post-separation parenting program that the person who contravened the parenting order could attend;

                     (c)  because of the behaviour of the person who contravened the parenting order, it was not appropriate, in the court’s opinion, for the person to attend a post-separation parenting program, or a part of such a program;

[section 70NJ—further powers of court]

(31)   Schedule 1, item 7, page 14 (lines 28 to 31), omit subsection (6), substitute:

             (6)  The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.

          (6A)  The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:

                     (a)  a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989 ; or

                     (b)  a breach of a child support agreement made under that Act; or

                     (c)  a contravention of an order made by a court under Division 4 of Part VII of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).

[section 70NJ—further powers of court]

(32)   Schedule 1, item 7, page 14 (line 32), omit “subsection (1) or (2)”, substitute “this section”.

[section 70NJ—further powers of court]

(33)   Schedule 1, item 7, page 14 (line 35), omit “subsection (1) or (2)”, substitute “this section”.

[section 70NJ—further powers of court]

(34)   Schedule 1, item 7, page 15 (after line 19), after subsection 70NK(2), insert:

          (2A)  A community service order may be an order of any of the following kinds:

                     (a)  an order known as:

                              (i)  a community service order; or

                             (ii)  a work order; or

                            (iii)  an attendance centre order; or

                            (iv)  an attendance order; or

                             (v)  a community based order;

                     (b)  an order that is similar to an order referred to in paragraph (a);

                     (c)  an order prescribed for the purposes of this paragraph.

[section 70NK—kinds of community service orders]

(35)   Schedule 1, item 7, page 16 (lines 16 to 21), omit paragraphs 70NL(a) to (c), substitute:

                     (a)  if the court that made the order is the Family Court or the Federal Magistrates Court—by either of those Courts; or

                     (b)  otherwise—by the court that made the order or the Family Court.

[section 70NL—variation and discharge of community service orders]

(36)   Schedule 1, item 9, page 22 (after line 26), after paragraph (c), insert:

               ; or (d)  the Child Support (Assessment) Act 1989 ;

[section 109A—rules of court relating to enforcement]

(37)   Schedule 1, item 9, page 23 (line 26), after “ 1988 ”, insert “or the Child Support (Assessment) Act 1989 ”.

[section 109A—rules of court relating to enforcement]

(38)   Schedule 1, item 20, page 26 (line 29), omit “wilful”, substitute “intentional”.

[section 112AD—sanctions]

(39)   Schedule 2, item 1, page 30 (lines 7 to 12), omit the definition of financial agreement , substitute:

financial agreement means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies.

[section 4—financial agreement]

(40)   Schedule 2, after item 6, page 31 (after line 6), insert:

6A  At the end of section 85A

Add:

             (3)  A court cannot make an order under this section in respect of matters that are included in a financial agreement.

[section 85A—settlements]

(41)   Schedule 2, item 10, page 31 (line 27), omit “90E(2)”, substitute “90F(2)”.

[technical correction]

(42)   Schedule 2, item 10, page 32 (after line 6), after paragraph 90B(1)(a), insert:

                    (aa)  at the time of the making of the agreement, no other agreement (whether made under this section or section 90C or 90D) is in force between the parties with respect to any of those matters; and

[section 90B—financial agreements before marriage]

(43)   Schedule 2, item 10, page 32 (lines 10 to 14), omit paragraph 90B(2)(a), substitute:

                     (a)  how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and before the dissolution of the marriage, is to be dealt with;

[section 90B—financial agreements before marriage]

(44)   Schedule 2, item 10, page 32 (line 20), omit “other than”, substitute “incidental or ancillary to”.

[section 90B—financial agreements before marriage]

(45)   Schedule 2, item 10, page 32 (line 22), omit “vary or”.

[section 90B—financial agreements before marriage]

(46)   Schedule 2, item 10, page 32 (after line 27), after paragraph 90C(1)(a), insert:

                    (aa)  at the time of the making of the agreement, no other agreement (whether made under this section or section 90B or 90D) is in force between the parties with respect to any of those matters; and

[section 90C—financial agreements during marriage]

(47)   Schedule 2, item 10, page 32 (line 31) to page 33 (line 3), omit paragraph 90C(2)(a), substitute:

                     (a)  how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with;

[section 90C—financial agreements during marriage]

(48)   Schedule 2, item 10, page 33 (line 9), omit “other than”, substitute “incidental or ancillary to”.

[section 90C—financial agreements during marriage]

(49)   Schedule 2, item 10, page 33 (line 11), omit “vary or”.

[section 90C—financial agreements during marriage]

(50)   Schedule 2, item 10, page 33 (after line 18), after paragraph 90D(1)(a), insert:

                    (aa)  at the time of the making of the agreement, no other agreement (whether made under this section or section 90B or 90C) is in force between the parties with respect to any of those matters; and

[section 90D—financial agreements after dissolution of marriage]

(51)   Schedule 2, item 10, page 33 (lines 22 to 24), omit paragraph 90D(2)(a), substitute:

                     (a)  how all or any of the property or financial resources that either or both of them had or acquired during the former marriage is to be dealt with;

[section 90D—financial agreements after dissolution of marriage]

(52)   Schedule 2, item 10, page 33 (line 27), omit “other than”, substitute “incidental or ancillary to”.

[section 90D—financial agreements after dissolution of marriage]

(53)   Schedule 2, item 10, page 33 (line 29), omit “vary or”.

[section 90D—financial agreements after dissolution of marriage]

(54)   Schedule 2, item 10, page 34 (line 13), after “financial agreement”, insert “(other than a financial agreement made under section 90B or a financial agreement made under section 90C in the event of the breakdown of a marriage)”.

[section 90F—certain provisions in agreements]

(55)   Schedule 2, item 10, page 34 (line 22), omit “90B(1),”.

[section 90F—certain provisions in agreements]

(56)   Schedule 2, item 10, page 34 (line 31) to page 35 (line 8), omit paragraphs 90G(1)(b) and (c), substitute:

                     (b)  the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:

                              (i)  the effect of the agreement on the rights of that party;

                             (ii)  whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;

                            (iii)  whether or not, at that time, it was prudent for that party to make the agreement;

                            (iv)  whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and

                     (c)  the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and

[section 90G—when financial agreements are binding]

(57)   Schedule 2, item 10, page 35 (line 33) to page 36 (line 11), omit paragraphs 90J(2)(b) and (c), substitute:

                     (b)  the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:

                              (i)  the effect of the agreement on the rights of that party;

                             (ii)  whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;

                            (iii)  whether or not, at that time, it was prudent for that party to make the agreement;

                            (iv)  whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and

                     (c)  the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and

[section 90J—termination of financial agreement]

(58)   Schedule 2, item 10, page 36 (after line 14), at the end of section 90J, add:

             (3)  A court may, on an application by a person who was a party to the financial agreement that has been terminated, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

[section 90J—termination of financial agreement]

(59)   Schedule 2, item 10, page 36 (line 21), at the end of paragraph 90K(1)(a), add “(including non-disclosure of a material matter)”.

[section 90K—setting aside agreement]

(60)   Schedule 2, item 10, page 36 (lines 26 to 32), omit paragraph 90K(1)(d), substitute:

                     (d)  since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside.

[section 90K—setting aside agreement]

(61)   Schedule 2, item 10, page 37 (after line 4), after section 90K, insert:

90KA  Validity, enforceability and effect of financial agreements and termination agreements

                   The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:

                     (a)  subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and

                     (b)  has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court.

[section 90KA—validity of agreements]

(62)   Schedule 3, page 38 (before line 4), before the heading, insert:

A New Tax System (Family Assistance) Act 1999

1A  Subparagraph 20A(10)(b)(ii) of Schedule 1

Repeal the subparagraph, substitute:

                             (ii)  a maintenance agreement (within the meaning of the Family Law Act 1975 ) that has been registered in, or approved by, a court in Australia or an external Territory; or

                            (iii)  a financial agreement within the meaning of that Act; or

                            (iv)  any other agreement with respect to the maintenance of a person that has been registered in, or approved by, a court in Australia or an external Territory.

[clause 20A of Schedule 1—maintenance income test]

(63)   Schedule 3, page 38, after proposed item 1A, insert:

1B  Paragraph 20A(11)(b) of Schedule 1

Omit “maintenance” (last occurring).

[clause 20A of Schedule 1—maintenance income test]

(64)   Schedule 3, page 38, after proposed item 1B, insert:

1C  Subparagraph 24(3)(a)(ii) of Schedule 1

Repeal the subparagraph, substitute:

                             (ii)  a maintenance agreement (within the meaning of the Family Law Act 1975 ) that has been registered in, or approved by, a court in Australia or an external Territory; or

                            (iii)  a financial agreement within the meaning of that Act; or

                            (iv)  any other agreement with respect to the maintenance of a person that has been registered in, or approved by, a court in Australia or an external Territory; and

Note:       The heading to subsection 24(3) is altered by adding at the end “ or financial agreement ”.

[clause 24 of Schedule 1—maintenance income test]

(65)   Schedule 3, page 38, after proposed item 1C, insert:

1D  Subparagraph 24(6)(a)(i) of Schedule 1

Omit “a maintenance agreement”, substitute “an agreement referred to in subparagraph (3)(a)(ii), (iii) or (iv)”.

[clause 24 of Schedule 1—maintenance income test]

(66)   Schedule 3, page 38, after proposed item 1D, insert:

Bankruptcy Act 1966

1E  Section 5 (definition of maintenance agreement )

Repeal the definition, substitute:

maintenance agreement means:

                     (a)  a maintenance agreement (within the meaning of the Family Law Act 1975 ) that has been registered in, or approved by, a court in Australia or an external Territory; or

                     (b)  a financial agreement within the meaning of that Act; or

                     (c)  any other agreement with respect to the maintenance of a person that has been registered in, or approved by, a court in Australia or an external Territory.

[section 5—definitions]

(67)   Schedule 3, item 1, page 38 (lines 5 to 8), omit the item, substitute:

1  Paragraph 84(7)(b)

After “agreement”, insert “or financial agreement”.

[section 84—provisions in agreements]

(68)   Schedule 3, item 4, page 38 (lines 21 to 33), omit the item, substitute:

4  At the end of section 102

Add:

             (5)  If, in dismissing an appeal under subsection (1) or (2), the Full Court is of the opinion that the appeal does not raise any question of general principle, it may, in accordance with the standard Rules of Court, give reasons for its decision in short form.

             (6)  A Full Court of the Family Court, or a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, may:

                     (a)  join or remove a party to an appeal under subsection (1) or (2); or

                     (b)  make an order by consent disposing of an appeal under subsection (1) or (2) (including an order for costs); or

                     (c)  give directions about the conduct of an appeal under subsection (1) or (2), including directions about the use of written submissions and limiting the time for oral argument.

             (7)  The standard Rules of Court may make provision enabling matters of the kind mentioned in subsection (6) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

             (8)  Applications:

                     (a)  for an extension of time within which to institute an appeal under subsection (1) or (2); or

                     (b)  for leave to amend the grounds of an appeal under subsection (1) or (2); or

                     (c)  to reinstate an appeal under subsection (1) or (2) that, because of the standard Rules of Court, was taken to have been abandoned; or

                     (d)  to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (2);

may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

             (9)  The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (8) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

           (10)  No appeal lies under this section from an order or decision made under subsection (6) or (8).

[section 102—appeals]

(69)   Schedule 3, page 38 (after line 33), after item 4, insert:

4A  Paragraph 152(b)

After “maintenance agreement”, insert “, or a financial agreement within the meaning of the Family Law Act 1975 ,”.

4B  Section 152

Omit “or maintenance agreement”, substitute “, maintenance agreement or financial agreement”.

[section 152—cessation of agreements]

(70)   Schedule 3, page 39 (after line 1), before item 5, insert:

4C  Subsection 4(1) (at the end of the definition of maintenance agreement )

Add “, and also includes a financial agreement within the meaning of the Family Law Act 1975 ”.

[section 4—definitions]

(71)   Schedule 3, item 5, page 39 (lines 2 to 14), omit the item, substitute:

5  At the end of section 107

Add:

             (4)  If, in dismissing an appeal under subsection (1) or (1A), the Full Court is of the opinion that the appeal does not raise any question of general principle, it may, in accordance with the standard Rules of Court, give reasons for its decision in short form.

             (5)  A Full Court of the Family Court, or a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, may:

                     (a)  join or remove a party to an appeal under subsection (1) or (1A); or

                     (b)  make an order by consent disposing of an appeal under subsection (1) or (1A) (including an order for costs); or

                     (c)  give directions about the conduct of an appeal under subsection (1) or (1A), including directions about the use of written submissions and limiting the time for oral argument.

             (6)  The standard Rules of Court may make provision enabling matters of the kind mentioned in subsection (5) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

             (7)  Applications:

                     (a)  for an extension of time within which to institute an appeal under subsection (1) or (1A); or

                     (b)  for leave to amend the grounds of an appeal under subsection (1) or (1A); or

                     (c)  to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or

                     (d)  to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1A);

may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

             (8)  The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (7) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

             (9)  No appeal lies under this section from an order or decision made under subsection (5) or (7).

[section 107—appeals]

(72)   Schedule 3, item 22, page 40 (after line 13), after item 14, insert:

14A  Subsection 19D(5)

Omit “applicable Rules of Court”, substitute “regulations”.

14B  Subsection 19E(2)

Omit “applicable Rules of Court”, substitute “regulations”.

[registering awards]

(73)   Schedule 3, item 22, page 42 (line 25), after “fraud”, insert “(including non-disclosure of a material matter)”.

[section 19G—setting aside awards]

(74)   Schedule 3, item 22, page 43 (line 7), after “fraud”, insert “(including non-disclosure of a material matter)”.

[section 19GA—setting aside awards]

(75)   Schedule 3, page 44 (after line 14), after item 30, insert:

30A  Subsection 26B(1A)

Omit all the words after “other than”, substitute:

                   : (e)  a parenting order made under paragraph 70NG(1)(b) or an order made under paragraph 70NJ(3)(c) that has the same effect as such a parenting order; or

                      (f)  an order until further order; or

                     (g)  an order made in undefended proceedings; or

                     (h)  an order made with the consent of all the parties to the proceedings.

[section 26B—Judicial Registrars]

(76)   Schedule 3, page 44 (after line 18), after item 31, insert:

31A  Subsection 33A(2)

Repeal the subsection, substitute:

             (2)  Subsection (1) does not apply to:

                     (a)  proceedings for a decree of dissolution of marriage; or

                     (b)  proceedings instituted in the Family Court under Division 13A of Part VII or under Part XIII or XIIIA.

[section 33A—instituting proceedings]

(77)   Schedule 3, page 45 (after line 16), after item 38, insert:

38A  After subsection 44(3A)

Insert:

          (3B)  Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000 :

                     (a)  a decree nisi of dissolution of marriage has become absolute or a decree of nullity of marriage has been made; and

                     (b)  a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA;

proceedings of a kind referred to in paragraph (c) or (ca) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

                     (c)  within the period of 12 months after the later of:

                              (i)  the date on which the decree nisi became absolute or the date of the making of the decree of nullity, as the case may be; or

                             (ii)  the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or

                     (d)  with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

[section 44—time limits]

(78)   Schedule 3, page 45 (after line 32), after item 40, insert:

40A  Subsection 45A(8)

Omit “Part XIIIA”, substitute “Part XIII or XIIIA”.

[section 45A—transfer of proceedings]

(79)   Schedule 3, page 49 (after line 22), after item 56, insert:

56A  Section 66W

Repeal the section, substitute:

66W   Recovery of arrears

             (1)  Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force.

             (2)  If arrears are due under such an order when the order ceases to be in force, the court may, by order, retrospectively:

                     (a)  discharge the order if there is just cause for doing so; or

                     (b)  vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that:

                              (i)  the circumstances of the person liable to pay the arrears are such as to justify the variation; or

                             (ii)  the circumstances of the person entitled to receive the arrears are such as to justify the variation; or

                            (iii)  in the case of an order that operated in favour of, or that was binding on, a legal personal representative—the circumstances of the estate are such as to justify the variation.

56B  Application of amendment

Section 66W of the Family Law Act 1975 , as amended by item 56A, applies to arrears that are outstanding on or after the commencement of that item.

[recovery of arrears]

(80)   Schedule 3, page 50 (after line 24), after item 64, insert:

64A  Paragraph 67X(3)(a)

Omit “$1,000”, substitute “10 penalty units”.

64B  At the end of subsection 67X(3)

Add:

Note:          For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914 .

[section 67X—penalty]

(81)   Schedule 3, page 51 (after line 16), after item 68, insert:

68A  Section 69MA

Repeal the section.

[section 69MA—transfer of proceedings]

(82)   Schedule 3, item 76, page 53 (line 11) to page 54 (line 2), omit the item, substitute:

76  After subsection 94(2)

Insert:

          (2A)  If, in dismissing an appeal under subsection (1) or (1AA), the Full Court is of the opinion that the appeal does not raise any question of general principle, it may, in accordance with the standard Rules of Court, give reasons for its decision in short form.

Note:          Powers to make Rules of Court are also contained in sections 26B, 37A, 109A, 121 and 123.

          (2B)  A Full Court of the Family Court, or a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, may:

                     (a)  join or remove a party to an appeal under subsection (1) or (1AA); or

                     (b)  make an order by consent disposing of an appeal under subsection (1) or (1AA) (including an order for costs); or

                     (c)  give directions about the conduct of an appeal under subsection (1) or (1AA), including directions about the use of written submissions and limiting the time for oral argument.

          (2C)  The standard Rules of Court may make provision enabling matters of the kind mentioned in subsection (2B) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

          (2D)  Applications:

                     (a)  for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

                     (b)  for leave to amend the grounds of an appeal under subsection (1) or (1AA); or

                     (c)  to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

                     (d)  to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA);

may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

          (2E)  The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

           (2F)  No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

[section 94—appeals]

(83)   Schedule 3, page 54 (after line 2), after item 76, insert:

76A  Subsection 94AA(2A)

Omit “decision”, substitute “decree”.

[section 94AA—leave to appeal]

(84)   Schedule 3, page 54 (after line 18), after item 79, insert:

79A  After section 100A

Insert:

100B  Children swearing affidavits, being called as witnesses or being present in court

             (1)  A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

             (2)  A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

             (3)  In this section:

child means a child under 18 years of age.

[section 100B—children]

(85)   Schedule 3, item 87, page 58 (lines 5 and 6), omit “to the child’s country of habitual residence for the purposes of”, substitute “under”.

[section 111B—Convention on international child abduction]

(86)   Schedule 3, item 87, page 58 (line 8), omit “to that country”, substitute “under the Convention”.

[section 111B—Convention on international child abduction]

(87)   Schedule 3, item 87, page 58 (line 12), omit “to that country”, substitute “under the Convention”.

[section 111B—Convention on international child abduction]

(88)   Schedule 3, item 87, page 58 (lines 14 and 15), omit “to the child’s country of habitual residence for the purposes of”, substitute “under”.

[section 111B—Convention on international child abduction]

(89)   Schedule 3, page 60 (after line 17), after item 93, insert:

93A  Paragraph 112AH(8)(a)

Omit “$ 1,0 00”, substitute “10 penalty units”.

93B  At the end of subsection 112AH(8)

Add:

Note:          For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914 .

[section 112AH—penalty]

(90)   Schedule 3, item 99, page 62 (line 9), omit “Court”, substitute “court”.

[technical correction]

(91)   Schedule 3, page 65 (after line 8), at the end of the Schedule, add:

Federal Magistrates Act 1999

117  Subsection 19(2)

Repeal the subsection, substitute:

             (2)  Subsection (1) does not apply to:

                     (a)  proceedings for a decree of dissolution of marriage; or

                     (b)  proceedings instituted in the Federal Magistrates Court under:

                              (i)  Division 13A of Part VII of the Family Law Act 1975 ; or

                             (ii)  Part XIII or XIIIA of that Act.

[section 19—certain proceedings not to be brought ]

(92)   Schedule 3, page 65, after proposed item 117, insert:

118  Subsection 65(3) (note)

Omit “Part XIIIA”, substitute “Parts XIII and XIIIA”.

[section 65—offences by witness]

(93)   Schedule 3, page 65, after proposed item 118, insert:

119  Subsection 78(1) (note)

Omit “Part XIII”, substitute “Parts XIII and XIIIA”.

[section 78—enforcement of judgment]

(94)   Schedule 3, page 65, after proposed item 122, insert:

Veterans’ Entitlements Act 1986

123  After subparagraph 51(3)(a)(i)

Insert:

                            (ia)  a financial agreement under the Family Law Act 1975 ; or

[section 51—capitalised maintenance income]