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Family Law Amendment Bill 2000
Schedule 1 Sanctions for failure to comply with orders and other obligations

   

Family Law Act 1975

1  Paragraph 37A(1)(k)

Repeal the paragraph.

2  Section 60C (table item 6)

Repeal the item, substitute:

6

Division 6 Parenting orders other than child maintenance orders

•              applying for and making parenting orders, other than child maintenance orders

•              general obligations created by residence orders, contact orders and specific issues orders

•              measures to promote the exercise of parental responsibility—stage 1 of parenting compliance regime

•              dealing with people who have been arrested

•              obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia

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 participate in 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 punitive action in respect of a person who:

(a)           participates, or refuses or fails to participate, in the program and afterwards contravenes an order affecting children; or

(b)           is subject to a further parenting order that compensates for contact forgone and afterwards contravenes an order affecting children;

—stage 3 of parenting compliance regime

4  After section 63D

Insert:

63DA   Explanation by person advising or assisting in the making of a parenting plan

                   If a person who is a family and child counsellor, a family and child mediator or a legal practitioner gives advice or assistance to people in connection with the making by them of a parenting plan, the person must explain to them, in language likely to be readily understood by them:

                     (a)  the obligations that the plan creates; and

                     (b)  the consequences that may follow if either of them fails to comply with any of those obligations; and

                     (c)  the assistance that is available to help people who experience difficulties in complying with a parenting plan.

5  After section 65A

Insert:

65AA   Measures to promote the exercise of parental responsibility

                   Measures designed, as stage 1 of a parenting compliance regime, to improve communication between separated parents and to educate parents about their respective responsibilities in relation to their children are contained in this Division (see section 65DA).

                   Remedial measures designed, as stage 2 of a parenting compliance regime, to enable parents to resolve issues of conflict about parenting and to help in the negotiation of improved parenting are contained in Subdivision B of Division 13A.

                   Punitive measures designed, as stage 3 of a parenting compliance regime, to ensure that, as a last resort, a parent is punished for deliberate disregard of an order made by a court are contained in Subdivision C of Division 13A.

6  After section 65D

Insert:

65DA   Explanation when parenting order is made —stage 1 of parenting compliance regime

             (1)  It is the duty of the court, when making a parenting order:

                     (a)  if a person to whom the order is directed is represented by a legal practitioner—to request the practitioner to explain the effect of the order to the person; or

                     (b)  if any of the persons to whom the order is directed is not represented by a legal practitioner—to explain the effect of the order to the person or each of the persons.

             (2)  If a request is made by the court to a legal practitioner under paragraph (1)(a), it is the duty of the legal practitioner to explain the effect of the order to the person whom he or she represents.

             (3)  An explanation under subsection (1) or (2) must explain, in language likely to be readily understood by the person to whom the explanation is given:

                     (a)  the obligations that the order creates; and

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

                     (c)  the consequences that may follow if the person contravenes the order; and

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

7  After Division 13 of Part VII

Insert:

Division 13A Sanctions for failure to comply with orders, and other obligations, that affect children

Subdivision A Preliminary

70NA   Objects of Division

                   The objects of this Division are to ensure that:

                     (a)  if a person contravenes an order under this Act affecting children, the court may do either or both of the following:

                              (i)  make an order requiring the person to participate in a post-separation parenting program, provided that the program is available within a reasonable distance from the person’s place of residence or place of work; or

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

                     (b)  if:

                              (i)  a person who is required to participate in such a program participates, or refuses or fails to participate, in the program and afterwards contravenes an order under this Act affecting children; or

                             (ii)  a person in respect of whom such a further parenting order is made afterwards contravenes an order under this Act affecting children;

                            the court will take punitive action in respect of the person.

70NB   Definitions

                   In this Division:

applicable Rules of Court means:

                     (a)  in the case of the Federal Magistrates Court—Rules of Court made under the Federal Magistrates Act 1999 to the extent to which those Rules of Court relate to this Act; or

                     (b)  in any other case—Rules of Court made under this Act.

applied provisions , in relation to a community service order made under paragraph 70NJ(3)(a), means the provisions of the laws of a State or Territory (as modified by regulations made under subsection 70NK(3)), that, because of regulations made under that subsection, apply in relation to the order.

community service order means an order of a kind known as a community service order.

contravened an order has the meaning given by section 70NC.

order under this Act affecting children , in relation to a court, means:

                     (a)  a parenting order; or

                     (b)  an injunction granted by the court:

                              (i)  under section 68B; or

                             (ii)  under section 114 in so far as the injunction is for the protection of a child; or

                     (c)  an undertaking given to, and accepted by, the court in proceedings under this Act that relate wholly or partly to, or to the making of, a parenting order; or

                     (d)  a subpoena issued under the applicable Rules of Court in proceedings under this Act that relate wholly or partly to a parenting order, being a subpoena issued to a party to the proceedings; or

                     (e)  a parenting plan registered in a court under section 63E; or

                      (f)  a bond entered into:

                              (i)  under a parenting order; or

                             (ii)  under paragraph 70NJ(3)(b); or

                            (iii)  for the purposes of subsection 70NO(5);

and includes an order, injunction, plan or bond that:

                     (g)  is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (f); and

                     (h)  has been registered in the first-mentioned court.

participate in a post-separation parenting program means:

                     (a)  attend before the provider of the program so that the provider can make an initial assessment as to the suitability of the person attending to take part in lectures, discussions or other activities included in the program; and

                     (b)  if the person attending is assessed to be suitable—take part in the lectures, discussions or other activities in respect of which the person is assessed to be suitable.

post-separation parenting program means a program that:

                     (a)  is designed to help in the resolution of conflicts about parenting; and

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

                     (c)  involves:

                              (i)  the initial assessment by the provider of the program of the suitability of persons who are ordered to participate in the program to take part in lectures, discussions or other activities included in the program; and

                             (ii)  the taking part in such lectures, discussions or other activities by persons so assessed to be suitable.

reasonable excuse for contravening an order includes the meanings given by section 70NE.

70NC   Meaning of contravened an order

                   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

                     (a)  where the person is bound by the order—he or she has:

                              (i)  intentionally failed to comply with the order; or

                             (ii)  made no reasonable attempt to comply with the order; or

                     (b)  otherwise—he or she has:

                              (i)  intentionally prevented compliance with the order by a person who is bound by it; or

                             (ii)  aided or abetted a contravention of the order by a person who is bound by it.

70ND   Requirements taken to be included in certain orders

                   For the purposes of this Division:

                     (a)  a residence order is taken to include a requirement that people act in accordance with section 65M in relation to the order; and

                     (b)  a contact order is taken to include a requirement that people act in accordance with section 65N in relation to the order; and

                     (c)  a specific issues order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.

70NE   Meaning of reasonable excuse for contravening an order

             (1)  The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (3) and (4).

             (2)  A person (the respondent ) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if:

                     (a)  the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

                     (b)  the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

             (3)  A person (the respondent ) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:

                     (a)  the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and

                     (b)  the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

             (4)  A person (the respondent ) is taken to have had a reasonable excuse for contravening a specific issues order by acting contrary to section 65P if:

                     (a)  the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

                     (b)  the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

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

70NF   Application of Subdivision

                   This Subdivision applies if:

                     (a)  an order under this Act affecting children 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, contravened the order;

and, in the case of an order for the maintenance of a child, applies irrespective of the period since the contravention occurred.

70NG   Powers of court

             (1)  The court may do either or both of the following:

                     (a)  make an order that the person is to participate in a specified post-separation parenting program being a program that is available within a reasonable distance from the person’s place of residence or work;

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

             (2)  A person is not to be ordered to participate in a post-separation parenting program unless the program is available within a reasonable distance from the person’s place of residence or work.

             (3)  If the court makes an order that a person is to participate in a specified post-separation parenting 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.

             (4)  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.

70NH   Notification to court

             (1)  If the provider of a post-separation parenting program makes an initial assessment that a person is unsuitable to take part in a post-separation parenting program, the provider must inform the court, in accordance with the applicable Rules of Court, that the person has been so assessed.

             (2)  The provider of a post-separation parenting program to whom a person is referred must inform the court, in accordance with the applicable Rules of Court, if:

                     (a)  the person fails to attend or participate in any one or more of the lectures, discussions or other activities included in the program; or

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

70NI   Court may make further orders in relation to participation in program

                   If it appears to the court that a person who has been ordered to participate in a post-separation parenting program has not participated, or is not participating or fully participating in the program, the court may, by order, give further directions to the person with respect to the person’s participation in the program.

Subdivision C Court to take punitive action in respect of person who contravenes an order : stage 3 of parenting compliance regime

70NJ   Punitive powers of court

             (1)  If a court having jurisdiction under this Act is satisfied:

                     (a)  that a person in respect of whom an order has been made under paragraph 70NG(1)(a) to participate in a post-separation parenting program:

                              (i)  has participated in the program; or

                             (ii)  has refused or failed to participate, or to participate fully, in the program; or

                            (iii)  is considered by the provider of the program to be unsuitable to take any further part in the program;

                            and the person has afterwards, without reasonable excuse, contravened an order under this Act affecting children; or

                     (b)  a person in respect of whom an order has been made under paragraph 70NG(1)(b) has afterwards, without reasonable excuse, contravened an order under this Act affecting children;

and the person does not prove on the balance of probabilities that he or she had a reasonable excuse for contravening the order, the court must, subject to subsections (5) and (6), make an order for the imposing, in respect of the person, of one or more of the sanctions that are available to be imposed under subsection (3), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.

             (2)  A court having jurisdiction under this Act may in exceptional circumstances, subject to subsections (5) and (6), make an order for the imposing, in respect of a person who has contravened an order under this Act affecting children, of one or more of the sanctions that are available to be imposed under subsection (3), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.

                   For the purposes of this subsection, exceptional circumstances include the following circumstances:

                     (a)  a post-separation parenting program is not available to the person within a reasonable distance from the person’s place of residence or place of work;

                     (b)  because of the behaviour of the person it would not be appropriate, in the court’s opinion, for the person to participate in a post-separation parenting program;

                     (c)  it would not be appropriate, in the court’s opinion, for the court to make an order under paragraph 70NG(1)(b).

             (3)  The sanctions that are available to be imposed by the court are:

                     (a)  if the court is empowered under section 70NK to make a community service order—to make such an order; or

                     (b)  to make an order requiring the person to enter into a bond in accordance with section 70NM; or

                     (c)  if the person has contravened a parenting order—subject to subsection (5), to make an order varying the order so contravened; or

                     (d)  to fine the person not more than 60 penalty units; or

                     (e)  subject to subsection (6), to impose a sentence of imprisonment on the person in accordance with section 70NO.

             (4)  If a court varies or discharges under section 70NM a community service order made under paragraph (3)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.

             (5)  When making an order under paragraph (3)(c) varying a parenting order, the court, in addition to regarding, under section 65E, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:

                     (a)  the person who contravened the parenting order did so after having participated, or refused or failed to participate or participate fully, in a post-separation parenting program;

                     (b)  that the person who contravened the parenting order was a person to whom a post-separation parenting program was not available within a reasonable distance from the person’s place of residence or place of work;

                     (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 participate in a post-separation parenting program;

                     (d)  the parenting order was a compensatory parenting order made under paragraph 70NG(1)(b) after the person had contravened a previous order under this Act affecting children.

             (6)  The court must not impose a sentence of imprisonment on the person under paragraph (3)(e) in respect of a contravention of a child maintenance order unless the court is satisfied that the contravention was wilful or fraudulent.

             (7)  An order under subsection (1) or (2) may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.

             (8)  When a court makes an order under subsection (1) or (2), the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.

70NK   When court is empowered to make a community service order

             (1)  Subject to this section, if:

                     (a)  under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to make a community service order in respect of a person convicted of an offence against the law of the State or Territory; and

                     (b)  an arrangement under section 70NQ in respect of the State or Territory makes provision for and in relation to the carrying out of a community service order;

a court exercising jurisdiction in the State or Territory may, under paragraph 70NJ(3)(a) make a community service order.

             (2)  A community service order made under paragraph 70NJ(3)(a):

                     (a)  is to be such that the total number of hours during which the order regulates the conduct of the person in respect of whom it is made does not exceed the maximum period in relation to the State or Territory in which the order is made; and

                     (b)  ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order.

             (3)  If a court exercising jurisdiction under section 70NJ in a particular State or Territory makes a community service order under paragraph 70NJ(3)(a), the provisions of the laws of the State or Territory with respect to a community service order that is made under those laws are, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, to apply in relation to the order.

             (4)  If a court proposes to make a community service order under paragraph 70NJ(3)(a), it must, before doing so, explain to the person in respect of whom it is made, in language likely to be readily understood by the person:

                     (a)  the purpose and effect of the proposed order; and

                     (b)  the consequences that may follow if the person fails to comply with the proposed order or with any requirements made in relation to the order by or under the applied provisions; and

                     (c)  if the proposed order may be revoked or varied under the applied provisions—that the proposed order may be so revoked or varied.

Note:          For applied provisions , see section 70NB.

             (5)  In this section:

maximum period , in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory.

participating State means a State in relation to which an agreement under section 70NQ is in force.

participating Territory means a Territory in relation to which an agreement under section 70NQ is in force.

70NL   Variation and discharge of community service orders

                   A community service order made under paragraph 70NJ(3)(a) may be varied or discharged:

                     (a)  if the court that made the order is the Family Court—by the Family Court; or

                     (b)  if the court that made the order is the Federal Magistrates Court—by the Federal Magistrates Court; or

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

70NM   Bonds

             (1)  This section provides for bonds that a court may require a person to enter into under paragraph 70NJ(3)(b).

             (2)  A bond is to be for a specified period of up to 2 years.

             (3)  A bond may be:

                     (a)  with or without surety; and

                     (b)  with or without security.

             (4)  The conditions that may be imposed on a person by a bond include, but are not limited to, conditions of the following kinds:

                     (a)  a condition requiring the person to attend upon a family and child counsellor, or a welfare officer, for counselling;

                     (b)  a condition requiring the person to be of good behaviour.

             (5)  If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:

                     (a)  the purpose and effect of the proposed requirement; and

                     (b)  the consequences that may follow if the person:

                              (i)  fails to enter into the bond; or

                             (ii)  having entered into the bond—fails to act in accordance with the bond.

70NN   Procedure for enforcing community service orders or bonds

             (1)  If a court makes a community service order under paragraph 70NJ(3)(a) in respect of a person, or an order under paragraph 70NJ(3)(b) requiring a person to enter into a bond in accordance with section 70NM, the following provisions have effect.

             (2)  If an information is laid before a magistrate, whether before or after the end of the period for which the community service order or the bond is to operate, or operated, alleging that the person has, without reasonable excuse, contravened the order or bond, the magistrate may:

                     (a)  issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court; or

                     (b)  if the information is laid on oath or affirmation and the magistrate thinks that proceedings against the person by summons might not be effective—issue a warrant for the arrest of the person.

             (3)  If:

                     (a)  the person is served with a summons issued under subsection (2); and

                     (b)  the person fails to attend before the court as required by the summons;

the court may, on proof of the service of the summons, issue a warrant for the arrest of the person.

             (4)  If:

                     (a)  the person is arrested under a warrant issued under subsection (2), (3) or (6); and

                     (b)  the court is not sitting at the time of the arrest;

the person is to be brought before a magistrate.

             (5)  The magistrate may:

                     (a)  order that the person be released from custody on his or her entering into a bond (with or without surety or security) that he or she will attend before the court on a date, at a time and at a place specified by the magistrate; or

                     (b)  direct that the person be kept in custody in accordance with the warrant.

             (6)  If:

                     (a)  on entering into a bond under subsection (5), the person is released under an order made by a magistrate under paragraph (5)(a); and

                     (b)  the person fails to attend before the court as required by the bond;

the court may, on proof of the entering into of the bond, issue a warrant for the arrest of the person.

             (7)  If:

                     (a)  in accordance with this section, the person is brought before the court; and

                     (b)  the court (whether or not constituted by the judge or magistrate who made the community service order or required the bond to be entered into in accordance with section 70NM) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond;

the court may take action under subsection (8).

             (8)  The court may:

                     (a)  without prejudice to the continuance of the community service order or the bond entered into in accordance with section 70NM, impose a fine not exceeding 10 penalty units on the person; or

                     (b)  revoke the community service order or the bond entered into in accordance with section 70NM and, subject to subsection (9), deal with the person, for the contravention in respect of which the community service order was made or the bond was entered into, in any manner in which the person could have been dealt with for the contravention if:

                              (i)  the community service order had not been made or the bond had not been entered into; and

                             (ii)  the person was before the court under section 70NJ in respect of the contravention.

             (9)  In dealing with the person as mentioned in paragraph (8)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:

                     (a)  the fact that the community service order was made or the bond was entered into; and

                     (b)  anything done under the community service order or pursuant to the bond; and

                     (c)  any fine imposed, and any other order made, for or in respect of the contravention.

           (10)  A warrant issued under subsection (2), (3) or (6) in relation to the person authorises:

                     (a)  the arrest of the person; and

                     (b)  the bringing of the person before the court as soon as practicable after his or her arrest; and

                     (c)  the detention of the person in custody until he or she is released by order of the court, or in accordance with subsection (5).

70NO   Sentences of imprisonment

             (1)  A sentence of imprisonment imposed on a person under paragraph 70NJ(3)(e) is to be expressed to be:

                     (a)  for a specified period of 12 months or less; or

                     (b)  for a period ending when the person:

                              (i)  complies with the order concerned; or

                             (ii)  has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;

                            whichever happens first.

             (2)  A court must not sentence a person to imprisonment under paragraph 70NJ(3)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NJ(3).

             (3)  If a court sentences a person to imprisonment under paragraph 70NJ(3)(e), the court must:

                     (a)  state the reasons why it is satisfied as mentioned in subsection (2); and

                     (b)  cause those reasons to be entered in the records of the court.

             (4)  The failure of a court to comply with subsection (3) does not invalidate a sentence.

             (5)  A court, when sentencing a person to imprisonment under paragraph 70NJ(3)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment.

             (6)  A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.

             (7)  A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.

             (8)  To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NJ(3)(e) for failure to make a payment under a child maintenance order does not affect the person’s liability to make the payment.

             (9)  An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Division.

70NP   Relationship between Subdivision and other laws

             (1)  This section applies where an act or omission by a person:

                     (a)  constitutes a contravention of an order under this Act affecting children; and

                     (b)  is also an offence against any law.

             (2)  If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NJ in respect of the contravention of the order must:

                     (a)  adjourn those proceedings until the prosecution has been completed; or

                     (b)  dismiss those proceedings.

             (3)  The person may be prosecuted for, and convicted of, the offence.

             (4)  Nothing in this section renders the person liable to be punished twice in respect of the same act or omission.

70NQ   Arrangements with States and Territories for carrying out of sentences and orders

             (1)  The Governor-General may make arrangements with the relevant authority of a State or a Territory for:

                     (a)  the exercise of powers, and the performance of functions, by officers of the State or Territory; and

                     (b)  the making available of facilities of the State or Territory;

for and in relation to the carrying out of orders made, and sentences imposed, under this Subdivision.

             (2)  In this section:

officer includes the holder of a judicial office.

relevant authority means:

                     (a)  in relation to a State—the Governor of the State; and

                     (b)  in relation to the Australian Capital Territory—the Chief Minister for the Australian Capital Territory; and

                     (c)  in relation to the Northern Territory—the Administrator of the Northern Territory; and

                     (d)  in relation to Norfolk Island—the Administrator of Norfolk Island.

70NR   Subdivision does not limit operation of section 105

                   Nothing in this Subdivision is intended to limit the operation of section 105.

8  Section 107

Repeal the section, substitute:

107   People not to be imprisoned for failure to comply with certain orders

             (1)  A person must not be imprisoned or otherwise placed in custody because of a contravention of an order for the payment of money made in a matrimonial cause.

             (2)  This section does not affect the operation of Division 13A of Part VII or the operation of Part XIIIA.

9  After section 109

Insert:

109A   Rules of Court relating to enforcement

             (1)  The power of the Judges, or a majority of them, under section 123 to make Rules of Court extends to making Rules of Court for or in relation to, or for or in relation to anything incidental to, the enforcement by the court of:

                     (a)  an order under this Act affecting children (within the meaning of Division 13A of Part VII); or

                     (b)  an order under this Act (within the meaning of Part XIIIA); or

                     (c)  the Child Support (Registration and Collection) Act 1988 ;

and, in particular, for or in relation to any of the specific matters mentioned in subsection (2).

             (2)  The specific matters are as follows:

                     (a)  requiring a person to do any one or more of the following:

                              (i)  to attend before a court or Registrar and answer questions or produce documents;

                             (ii)  to deliver a document or article to, or to a person specified by, a court or Registrar;

                            (iii)  to transfer the ownership of specified property to another person;

                            (iv)  to give another person possession (including exclusive possession) of specified property;

                             (v)  to deliver a specified chattel to another person;

                            (vi)  to do, or abstain from doing, any other act;

                     (b)  prescribing the practice and procedure to be followed for a hearing before a court or Registrar for the purpose of giving effect to a requirement made as mentioned in subparagraph (a)(i);

                     (c)  taking any one or more of the actions mentioned in subsection (3) in respect of a person who:

                              (i)  fails to pay the amount of a fine imposed under Division 13A of Part VII or under Part XIIIA; or

                             (ii)  fails to pay an amount payable under a bond entered into under Division 13A of Part VII or under Part XIIIA; or

                            (iii)  fails to pay under section 66L an amount of maintenance for a person over the age of 18 years; or

                            (iv)  fails to pay an amount payable under a registered maintenance liability under the Child Support (Registration and Collection) Act 1988 ; or

                             (v)  fails to comply with a requirement made as mentioned in paragraph (a);

                     (d)  delegating to a Registrar all or any of the powers conferred on a court under Rules of Court made under this section.

             (3)  Subject to subsection (4), the actions in respect of a person the taking of which may be provided for by Rules of Court as mentioned in paragraph (2)(c) are as follows:

                     (a)  the issue of a warrant for the arrest of the person;

                     (b)  the issue of a warrant of execution against property of the person;

                     (c)  the making of an order authorising the taking of possession of property of the person;

                     (d)  the making of an order for the sequestration, and if necessary the sale, of property of the person;

                     (e)  the making of an order for the attachment, by garnishment or attachment of earnings, of debts owed to the person;

                      (f)  the appointment of a receiver of property of the person.

             (4)  A reference in paragraph (2)(c) to a failure to pay an amount is a reference to any such failure irrespective of the length of the period during which the failure has continued, and includes a reference to a failure to pay part of an amount.

             (5)  In this section:

property means real or personal property.

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

10  Heading to Part XIIIA

Repeal the heading, substitute:

Part XIIIA Sanctions for failure to comply with orders, and other obligations, that do not affect children

11  Section 112AA

Insert:

applicable Rules of Court means:

                     (a)  in the case of the Federal Magistrates Court—Rules of Court made under the Federal Magistrates Act 1999 to the extent to which those Rules of Court relate to this Act; or

                     (b)  in any other case—Rules of Court made under this Act.

12  Section 112AA (definition of applied provisions )

Omit “112AD(2)(d)”, substitute “112AD(2)(b)”.

13  Section 112AA (definition of contact order )

Repeal the definition.

14  Section 112AA (paragraph (a) of the definition of court enforceable agreement )

Repeal the paragraph.

15  Section 112AA

Insert:

maintenance order , in relation to a court, means an order made by the court under this Act that deals with the maintenance of a person other than a child.

16  Section 112AA (definition of order under this Act )

Repeal the definition, substitute:

order under this Act , in relation to a court, means:

                     (a)  an order (however described) made by the court under this Act (other than a parenting order); or

                     (b)  an injunction granted by the court under section 114 except in so far as the injunction is for the protection of a child; or

                     (c)  an undertaking given to, and accepted by, the court in proceedings under this Act other than proceedings that relate wholly or partly to, or to the making of, a parenting order; or

                     (d)  a subpoena issued under the applicable Rules of Court in proceedings under this Act other than a subpoena issued in, and so issued to a party to, proceedings that relate wholly or partly to, or to the making of, a parenting order; or

                     (e)  a court enforceable agreement; or

                      (f)  a bond:

                              (i)  entered into under an order of a court under this Act other than an order under Division 13A of Part VII; or

                             (ii)  entered into for the purposes of subsection 112AE(5);

and includes an order, injunction, agreement or bond that:

                     (g)  is an order under this Act made by another court because of paragraph (a), (b), (e) or (f); and

                     (h)  has been registered in the first-mentioned court.

17  Subsection 112AB(2)

Repeal the subsection.

18  Subsection 112AC(1)

Omit “subsections (2), (3), (4) and (5)”, substitute “subsection (2)”.

19  Subsections 112AC(3), (4) and (5)

Repeal the subsections.

20  Subsections 112AD(1), (1A), (2) and (2A)

Repeal the subsections, substitute:

             (1)  If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court must make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.

          (1A)  The obligation imposed on the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court.

             (2)  The sanctions that are available to be imposed by the court are:

                     (a)  to require the person to enter into a bond in accordance with section 112AF; or

                     (b)  to impose a sentence on the person, or make an order directed to the person, in accordance with section 112AG; or

                     (c)  to fine the person not more than 60 penalty units; or

                     (d)  subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.

          (2A)  The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was wilful or fraudulent.

21  Subsections 112AD(3) and (4)

Omit “or (1A)”.

22  Subsection 112AD(5)

Repeal the subsection.

23  Subsections 112AE(1), (2) and (3)

Omit “112AD(2)(a)”, substitute “112AD(2)(d)”.

24  Subsections 112AE(5) and (6)

Repeal the subsections, substitute:

             (5)  A court, when sentencing a person to imprisonment under paragraph 112AD(2)(d) may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment.

             (6)  A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.

25  At the end of section 112AE

Add:

             (8)  To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order does not affect the person’s liability to make the payment.

26  Section 112AF

Repeal the section, substitute:

112AF   Bonds

             (1)  This section provides for bonds that a court may require a person to enter into under paragraph 112AD(2)(a).

             (2)  A bond is to be for a specified period of up to 2 years.

             (3)  A bond may be:

                     (a)  with or without surety; and

                     (b)  with or without security.

             (4)  The conditions that may be imposed on a person by a bond include a condition requiring the person to be of good behaviour.

             (5)  If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:

                     (a)  the purpose and effect of the proposed requirement; and

                     (b)  the consequences that may follow if the person fails:

                              (i)  to enter into the bond; or

                             (ii)  having entered into the bond—to act in accordance with the bond.

27  Subsections 112AG(1), (2), (4) and (5)

Omit “112AD(2)(d)”, substitute “112AD(2)(b)”.

28  Subsection 112AH(1)

Omit “112AD(2)(d)”, substitute “112AD(2)(b)”.

Note:       The heading to section 112AH is altered by omitting “ 112AD(2)(d) ” and substituting “ 112AD(2)(b) ”.

29  Subsections 112AH(5) and (6)

Omit “recognizance” (wherever occurring), substitute “bond”.

30  Subsection 112AM(5)

Repeal the subsection.

31  Saving

Despite the amendments made by items 10 to 30, Divisions 1 and 2 of Part XIIIA of the Family Law Act 1975 as in force immediately before the commencement of this Schedule continue to apply, as if those amendments had not been made, in relation to any order under this Act (within the meaning of section 112AA of that Act as so in force) that was in force immediately before that commencement.

32  Heading to Division 3 of Part XIIIA

Repeal the heading, substitute:

Part XIIIB Contempt of court

   

33  Subsection 112AP(1)

Omit “This section”, substitute “Subject to subsection (1A), this section”.

34  After subsection 112AP(1)

Insert:

          (1A)  This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

35  At the end of section 112AP

Add:

             (8)  To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person’s liability to make the payment.

             (9)  In this section:

order under this Act means an order under this Act affecting children within the meaning of Division 13A of Part VII or an order under this Act within the meaning of Part XIIIA.

36  Paragraph 123(1)(p)

Repeal the paragraph.

37  Paragraph 123(1)(u)

Omit “$5,000”, substitute “50 penalty units”.