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Family Law Amendment Bill 2000
Schedule 3 Other amendments

   

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.

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

Omit “maintenance” (last occurring).

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 ”.

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)”.

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.

Child Support (Assessment) Act 1989

1  Paragraph 84(7)(b)

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

2  Paragraph 95(3)(b)

Omit “Part XIII (Enforcement of decrees), and Part XIIIA (Sanctions for failure to comply with orders and contempt of court)”, substitute “Division 13A of Part VII (Enforcement of orders affecting children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court)”.

3  Subsection 100(2)

Omit “Part XIII (Enforcement of decrees), and Part XIIIA (Sanctions for failure to comply with orders and contempt of court)”, substitute “Division 13A of Part VII (Enforcement of orders affecting children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court)”.

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).

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”.

Child Support (Registration and Collection) Act 1988

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 ”.

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).

Family Law Act 1975

6  Subsection 4(1) (definition of approved arbitrator )

Repeal the definition.

7  Subsection 4(1)

Insert:

arbitrator means a person who meets the prescribed requirements for an arbitrator.

8  Subsection 4(1) (definition of family and child mediation )

After “mediation”, insert “, conducted in accordance with the regulations,”.

9  Subsection 4(1) (paragraph (a) of the definition of family and child mediator )

Repeal the paragraph, substitute:

                     (a)  a person employed or engaged by the Family Court or a Family Court of a State to provide family and child mediation services; or

10  Subsection 4(1) (definition of private arbitration )

Omit “by an arbitrator specified by the regulations for the purposes of this definition,”.

11  Paragraph 14E(c)

Omit “approved”.

12  Subsection 19D(1)

Omit “approved”.

13  Subsection 19D(2)

Repeal the subsection, substitute:

             (2)  However, a court may only make an order under subsection (1) with the consent of all the parties to the proceedings.

14  Subsection 19D(4)

Omit “approved”.

14A  Subsection 19D(5)

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

14B  Subsection 19E(2)

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

15  After section 19E

Insert:

19EA   Referral by arbitrator of questions of law to a Family Court

             (1)  At any time before making an award in section 19D arbitration or private arbitration, the arbitrator may refer for determination by a single Judge of the Family Court, or of a Family Court of a State, a question of law arising in relation to the arbitration.

             (2)  The arbitrator may do so:

                     (a)  on his or her own initiative; or

                     (b)  at the request of one or more of the parties to the arbitration if the arbitrator considers it appropriate to do so.

             (3)  The arbitrator must not make an award in the arbitration before the Judge has either:

                     (a)  determined the question of law; or

                     (b)  remitted the matter to the arbitrator having found that no question of law arises.

19EB   Referral by arbitrator of questions of law to the Federal Magistrates Court

             (1)  At any time before making an award in section 19D arbitration or private arbitration, the arbitrator may refer for determination by the Federal Magistrates Court a question of law arising in relation to the arbitration.

             (2)  The arbitrator may do so:

                     (a)  on his or her own initiative; or

                     (b)  at the request of one or more of the parties to the arbitration if the arbitrator considers it appropriate to do so.

             (3)  The arbitrator must not make an award in the arbitration before the Federal Magistrates Court has either:

                     (a)  determined the question of law; or

                     (b)  remitted the matter to the arbitrator having found that no question of law arises.

16  Subsection 19F(1)

Omit all the words after “in”, substitute “section 19D arbitration or private arbitration may apply to a single Judge of the Family Court, or of a Family Court of a State, for review of the award on questions of law”.

Note:       The heading to section 19F is altered by omitting “ made in private arbitration ” and substituting “ by a Family Court ”.

17  At the end of subsection 19F(1)

Add:

Note:          There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).

18  Subsection 19F(2)

Omit “court”, substitute “Judge”.

19  Paragraph 19F(2)(b)

Omit “it”, substitute “he or she”.

20  Application of amendments

The amendments of section 19F of the Family Law Act 1975 made by this Schedule apply in relation to applications for review that are made after the commencement of this item (even if the award concerned was registered before that time).

21  After section 19F

Insert:

19FA   Review of awards by the Federal Magistrates Court

             (1)  A party to a registered award made in section 19D arbitration or private arbitration may apply to the Federal Magistrates Court for review of the award on questions of law.

             (2)  On a review of an award under this section, the Federal Magistrates Court may:

                     (a)  determine all questions of law arising in relation to the arbitration; and

                     (b)  make such decrees as it thinks appropriate, including a decree affirming, reversing or varying the award.

22  Section 19G

Repeal the section, substitute:

19G   Setting aside awards—Family Courts

                   If an award made in section 19D arbitration or private arbitration, or an agreement made as a result of such arbitration, is registered in the Family Court or a Family Court of a State, the court may make a decree affirming, reversing or varying the award or agreement if the court is satisfied that:

                     (a)  the award or agreement was obtained by fraud (including non-disclosure of a material matter); or

                     (b)  the award or agreement is void, voidable or unenforceable; or

                     (c)  in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or

                     (d)  the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

19GA   Setting aside awards—Federal Magistrates Court

                   If an award made in section 19D arbitration or private arbitration, or an agreement made as a result of such arbitration, is registered in the Federal Magistrates Court, the Federal Magistrates Court may make a decree affirming, reversing or varying the award or agreement if it is satisfied that:

                     (a)  the award or agreement was obtained by fraud (including non-disclosure of a material matter); or

                     (b)  the award or agreement is void, voidable or unenforceable; or

                     (c)  in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or

                     (d)  the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

23  At the end of Subdivision B of Division 5 of Part III

Add:

19H   Fees for arbitration

             (1)  An arbitrator conducting section 19D arbitration or private arbitration may charge the parties to the arbitration fees for conducting it.

             (2)  The arbitrator must give written information about those fees to the parties before the arbitration starts.

Note:          There may be Rules of Court or regulations relating to the costs of arbitration and how they are assessed or taxed (see paragraphs 123(1)(se) and 125(1)(bc)).

24  Application of amendment

The amendment made by item 23 applies to arbitration that begins after the commencement of that item.

25  Section 19L

Omit “approved”.

Note:       The heading to section 19L is altered by omitting “ approved ”.

26  Section 19M

Omit “, an approved arbitrator, or an arbitrator who carries out a private arbitration,”, substitute “or an arbitrator”.

27  Subsection 19P(1)

Omit “community mediators and private”, substitute “family and child”.

Note:       The heading to section 19P is altered by omitting “ community mediators and private ” and substituting “ family and child ”.

28  Subsection 19Q(3)

Omit “approved”.

29  Subsection 22(2AC)

Omit “6”, substitute “the prescribed number”.

30  At the end of subsection 26B(1)

Add “and the power to make an order setting aside a registered award under section 19G”.

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.

31  At the end of section 26B

Add:

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

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.

32  At the end of paragraphs 37A(2)(a) and (b)

Add “or”.

33  At the end of subsection 37A(2)

Add:

               ; or (e)  an order setting aside a registered award under section 19G.

34  At the end of section 37A

Add:

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

35  After paragraph 38N(1)(da)

Insert:

                   (db)  such Directors of Mediation and other mediators as are necessary;

36  Subsection 44(3)

After “instituted” (last occurring), insert “or with the consent of both of the parties to the marriage”.

37  At the end of subsection 44(3)

Add:

The court may grant such leave at any time, even if the proceedings have already been instituted.

38  After subsection 44(3)

Insert:

       (3AA)  However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.

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.

39  At the end of section 45

Add:

             (3)  A transfer under subsection (2) may be made on the application of any party to the proceedings.

             (4)  A transfer under subsection (2) may be made on the transferring court’s own initiative if the transfer is:

                     (a)  from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or

                     (b)  from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State.

40  Validation of past transfers

To avoid doubt, a purported transfer of proceedings under subsection 45(2) of the Family Law Act 1975 before the commencement of item 39 is taken not to have been invalid or ineffective merely because it was done on the court’s own initiative.

40A  Subsection 45A(8)

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

41  Paragraph 46(1)(b)

Repeal the paragraph, substitute:

                     (b)  unless the parties consent to the court hearing and determining the proceedings—the court must transfer the proceedings to the Family Court or to the Supreme Court of a State or Territory.

42  Subsection 60D(1) (paragraph (c) of the definition of member of the Court personnel )

Repeal the paragraph.

43  At the end of paragraph 63E(2)(b)

Add:

                     ; or (iii)  a statement to the effect that the plan was developed after family and child mediation and that is signed by the family and child mediator involved.

44  After subsection 63E(2)

Insert:

          (2A)  However, a reference in subparagraph (2)(b)(i), (ii) or (iii) to the plan does not include a reference to any child maintenance provisions (as defined in subsection 63C(5)) of the plan.

45  After paragraph 65C(b)

Insert:

                   (ba)  a grandparent of the child; or

46  After paragraph 66A(d)

Insert:

                   (da)  deals with varying the maintenance of certain children (Subdivision EA); and

47  At the end of section 66E

Add:

             (3)  This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

48  After paragraph 66F(1)(b)

Insert:

                   (ba)  a grandparent of the child; or

49  At the end of subsection 66L(1)

Add:

The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

50  Paragraph 66S(1)(b)

Omit “applies”, substitute “or persons (each of whom could do that) apply”.

51  After subsection 66S(1)

Insert:

          (1A)  With the consent of all the parties to the first order, the court may make an order:

                     (a)  discharging the first order; or

                     (b)  suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

                     (c)  if the operation of the order has been suspended under paragraph (b) or (2)(b)—reviving its operation wholly or in part; or

                     (d)  varying the order:

                              (i)  so as to increase or decrease any amount ordered to be paid by the order; or

                             (ii)  in any other way.

          (1B)  However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child’s parents to maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

52  Subsection 66S(2)

Omit “The” (first occurring), substitute “In any other case, the”.

53  Paragraph 66S(2)(c)

After “(b)”, insert “or (1A)(b)”.

54  After Subdivision E of Division 7 of Part VII

Insert:

Subdivision EA Varying the maintenance of certain children

66SA   Varying the maintenance of certain children

             (1)  This section applies to persons who:

                     (a)  are parties to an agreement (the original agreement ) dealing with the maintenance of a child; or

                     (b)  are entitled to receive, or required to pay, maintenance in respect of a child under a court order;

and cannot properly make an application under the Child Support (Assessment) Act 1989 for administrative assessment of child support (within the meaning of that Act) for the child seeking payment of child support by the other person.

             (2)  The persons may, by registering a written agreement in a court having jurisdiction under this Part, vary or revoke the original agreement or order to the extent that it deals with maintenance of the child.

             (3)  However, the registered agreement is of no effect to the extent that it allows any entitlement of a child or another person to an income tested pension, allowance or benefit to affect the duty of that child’s parents to maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

             (4)  If the original agreement or order is varied under subsection (2), it:

                     (a)  continues to operate despite the death of a party to the agreement or of a person entitled to receive, or required to pay, maintenance under the order; and

                     (b)  operates in favour of, and is binding on, the legal representative of that party or person;

unless the agreement or order provides otherwise.

             (5)  However, despite anything in the agreement or order, it does not continue to operate, to the extent that it requires the periodic payment of maintenance, after the death of the person entitled to receive those payments.

             (6)  This section applies despite anything in Division 4.

55  After section 66V

Insert:

66VA   Children who are 18 or over: change of circumstances

             (1)  A child maintenance order made under section 66L:

                     (a)  to enable the child to complete his or her education; or

                     (b)  because of a mental or physical disability of the child;

stops being in force if the child ceases that education or ceases to have that disability.

             (2)  The person to whom the maintenance is payable must, as soon as practicable, inform the person required to pay it of that change in circumstances.

             (3)  Any amounts of maintenance paid under the child maintenance order after it stops being in force may be recovered in a court having jurisdiction under this Part.

56  Application of amendment

The amendment made by item 55 applies to child maintenance orders made after the commencement of that item.

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.

57  After paragraph 67K(c)

Insert:

                    (ca)  a grandparent of the child; or

58  Subsection 67M(2)

After “Part”, insert “, or exercising jurisdiction in proceedings arising under regulations made for the purposes of Part XIIIAA,”.

59  Subsection 67N(2)

After “Part”, insert “, or exercising jurisdiction in proceedings arising under regulations made for the purposes of Part XIIIAA,”.

60  Paragraph 67Q(g)

Omit “the”, substitute “or directing a person to”.

61  Paragraph 67Q(g)

Omit “of” (first occurring).

62  Section 67Q (note)

Repeal the note, substitute:

Note 1:       Section 122AA authorises the use of reasonable force in making an arrest, and Subdivision D of Division 6 deals with what is to happen to a person arrested without warrant under a recovery order.

Note 2:       If a recovery order authorises a person to recover a child, the person is authorised to recover the child on each occasion that it is necessary to do so while the order remains in force: see subsection 67W(3).

63  After paragraph 67T(c)

Insert:

                    (ca)  a grandparent of the child; or

64  At the end of section 67W

Add:

             (3)  To avoid doubt, unless a recovery order specifically provides to the contrary, each term of the order continues to have effect until the end of the period for which it remains in force regardless of whether anything has previously been done in accordance with the order.

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 .

65  At the end of subsection 67ZA(1)

Add:

               ; or (d)  an arbitrator.

Note:       The heading to section 67ZA is altered by omitting “ or mediator ” and substituting “ , mediator or arbitrator ”.

66  Paragraph 68C(1)(b)

Omit all the words after “by”, substitute:

                            : (i)  causing, or threatening to cause, bodily harm to the protected person; or

                             (ii)  harassing, molesting or stalking that person;

67  At the end of subsection 68C(1)

Add:

Note:          Section 122AA authorises the use of reasonable force in making an arrest.

68  After subsection 68L(2)

Insert:

          (2A)  However, if the proceedings arise under regulations made for the purposes of section 111B, the court may order that the child be separately represented only if the court considers there are exceptional circumstances that justify doing so, and must specify those circumstances in making the order.

Note:          Section 111B is about the Convention on the Civil Aspects of International Child Abduction.

68A  Section 69MA

Repeal the section.

69  After section 69V

Insert:

69VA   Declarations of parentage

                   As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

70  Section 70F (definition of overseas child order )

Repeal the definition, substitute:

overseas child order means:

                     (a)  an order made by a court of a prescribed overseas jurisdiction that:

                              (i)  however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or

                             (ii)  however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or

                            (iii)  varies or discharges an order of the kind referred to in subparagraph (i) or (ii), including an order of that kind made under this Act; or

                     (b)  an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).

71  After subsection 70M(1)

Insert:

          (1A)  This section also applies if:

                     (a)  a court in Australia makes, in relation to a child who is under 18, an order under regulations made for the purposes of section 111B; and

                     (b)  the order is enforceable in a convention country (within the meaning of those regulations) under provisions corresponding to Subdivision C.

72  Subsection 70M(2)

After “jurisdiction” (wherever occurring), insert “or convention country”.

73  At the end of section 70N

Add:

             (2)  The regulations may make provision for and in relation to the sending to a convention country (within the meaning of the regulations made for the purposes of section 111B) of copies of, and documents relating to, an order under regulations made for the purposes of that section, that relates to a child to whom an overseas child order relates.

74  Sections 84 and 85

Repeal the sections.

Note:       Those sections are effectively being moved to Part XIII (Enforcement of Decrees): see also item 77.

75  Transitional

After the commencement of this item:

                     (a)  anything done before that commencement under section 84 or 85 of the Family Law Act 1975 is taken to have been done under section 106A or 106B respectively of that Act; and

                     (b)  a reference in an order made under that Act to section 84 or 85 of that Act is taken to be a reference to section 106A or 106B respectively of that Act.

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).

76A  Subsection 94AA(2A)

Omit “decision”, substitute “decree”.

77  Subsection 94AA(4)

Repeal the subsection.

78  Subsection 98A(2)

Omit “, there are no children of the marriage who have not attained the age of 18 years and”.

79  After subsection 98A(2)

Insert:

          (2A)  The court must not determine proceedings for the dissolution of marriage (whether instituted by one party, or jointly by both parties, to the marriage) under subsection (1) or (2) if:

                     (a)  there are any children of the marriage who are under 18; and

                     (b)  the court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children.

          (2B)  The court may determine proceedings under subsection (1) or (2) in chambers.

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.

80  After section 105

Insert:

106   Maintenance orders—more than 12 months in arrears

                   In determining whether to make an order enforcing a maintenance order, a court must not require that there be special circumstances that justify enforcing the maintenance order merely because the maintenance payable under it is more than 12 months in arrears.

106A   Execution of instruments by order of court

             (1)  If:

                     (a)  an order under this Act has directed a person to execute a deed or instrument; and

                     (b)  that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

             (2)  If:

                     (a)  a provision of a maintenance agreement that has been registered under section 86 or approved by a court under section 87 requires a person to execute a deed or instrument; and

                     (b)  that person has refused or neglected to comply with that provision of the maintenance agreement or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person required by that provision of the maintenance agreement to execute the deed or instrument and to do all acts and things necessary to give validity and operation to the deed or instrument.

             (3)  The execution of a deed or instrument by a person appointed under this section to execute that deed or instrument has the same force and validity as if the deed or instrument had been executed by the person directed by an order referred to in paragraph (1)(a), or required by a provision of a maintenance agreement referred to in paragraph (2)(a), to execute it.

             (4)  The court may make such order as it considers just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution.

106B   Transactions to defeat claims

             (1)  In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

             (2)  The court may order that any money or real or personal property dealt with by any such instrument or disposition may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.

             (3)  The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

             (4)  A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.

             (5)  In this section:

disposition includes a sale and a gift.

81  After section 109A

Insert:

Part XIIIAA International conventions , international agreements and international enforcement

   

82  After section 110

Insert:

110A   Registration and enforcement in Australia of overseas maintenance agreements etc.

                   The regulations may make provision for and in relation to the registration and enforcement in Australia of:

                     (a)  overseas maintenance agreements; or

                     (b)  overseas administrative assessments of maintenance liabilities.

110B   Transmission of agreements etc. to overseas jurisdictions

                   The regulations may make provision for and in relation to the transmission, to appropriate courts or authorities of prescribed overseas jurisdictions, of:

                     (a)  agreements registered under section 86; or

                     (b)  agreements approved by courts under section 87; or

                     (c)  financial agreements made as mentioned in subsection 90B(1) that contain matters referred to in paragraph 90B(2)(b); or

                     (d)  financial agreements made as mentioned in subsection 90C(1) that contain matters referred to in paragraph 90C(2)(b); or

                     (e)  financial agreements made as mentioned in subsection 90D(1) that contain matters referred to in paragraph 90D(2)(b); or

                      (f)  administrative assessments of maintenance liabilities;

for the purpose of securing the enforcement of those agreements or assessments in those jurisdictions.

83  Saving

Any regulations made for the purposes of paragraph 89(b) of the Family Law Act 1975 and in force immediately before the commencement of item 82 have effect as if they were made for the purposes of section 110B inserted in that Act by that item.

84  Section 111

After “necessary”, insert “or convenient”.

85  Section 111A

After “necessary”, insert “or convenient”.

86  Subsection 111B(1)

After “necessary”, insert “or convenient”.

87  After subsection 111B(1)

Insert:

          (1A)  In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:

                     (a)  relating to the onus of establishing that a child should not be returned under the Convention; and

                     (b)  establishing rebuttable presumptions in favour of returning a child under the Convention; and

                     (c)  relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a contact order in relation to a child if the outcome of the proceedings is that the child is not to be returned under the Convention.

          (1B)  The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

          (1C)  A Central Authority within the meaning of the regulations may arrange to place a child, who has been returned to Australia under the Convention, with an appropriate person, institution or other body to secure the child’s welfare until a court exercising jurisdiction under this Act makes an order (including an interim order) for the child’s care, welfare or development.

          (1D)  A Central Authority may do so despite any orders made by a court before the child’s return to Australia.

          (1E)  Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:

                     (a)  whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or

                     (b)  if the child was removed to Australia—when that happened; or

                     (c)  whether the child has been wrongfully removed to, or retained in, Australia.

88  Subsection 111B(4)

Repeal the subsection, substitute:

             (4)  For the purposes of the Convention:

                     (a)  each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and

                     (b)  subject to any order of a court for the time being in force, a person who has a parenting order in relation to a child that is to any extent:

                              (i)  a residence order; or

                             (ii)  a specific issues order, under which the person is responsible for the day-to-day or long-term care, welfare and development of the child;

                            should be regarded as having rights of custody in respect of the child; and

                     (c)  subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and

                     (d)  subject to any order of a court for the time being in force, a person who has a contact order in relation to a child should be regarded as having a right of access to the child.

Note:          The references in paragraphs (b) and (d) to residence orders, specific issues orders and contact orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).

89  After subsection 111B(5)

Insert:

          (5A)  Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1).

90  Subsections 111C(1) and (3)

After “necessary”, insert “or convenient”.

91  After subsection 111C(7)

Insert:

          (7A)  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 the making of adoption orders.

92  After section 111C

Insert:

111D   Regulations may provide for rules of evidence

             (1)  Regulations made for the purposes of Part XIIIAA may make provision in relation to the rules of evidence that are to apply in proceedings under those regulations.

             (2)  Such provisions have effect despite any inconsistency with the Evidence Act 1995 or with any other law about evidence.

93  Section 112

Repeal the section.

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 .

94  Paragraph 114AA(1)(b)

Omit all the words after “by”, substitute:

                            : (i)  causing, or threatening to cause, bodily harm to the person referred to in paragraph (a); or

                             (ii)  harassing, molesting or stalking that person;

95  At the end of subsection 114AA(1)

Add:

Note:          Section 122AA authorises the use of reasonable force in making an arrest.

96  Subsection 114AA(7) (definition of relevant period )

Repeal the definition, substitute:

relevant period , in relation to a person’s arrest, means the period starting when the person is arrested and ending at the close of business on the next day that is not a Saturday, Sunday or public holiday.

97  Subsection 117(1)

Omit “section 118”, substitute “sections 117AA and 118”.

98  After section 117

Insert:

117AA   Costs in proceedings relating to overseas enforcement and international Conventions

             (1)  In proceedings under regulations made for the purposes of Part XIIIAA, the court can only make an order as to costs (other than orders as to security for costs):

                     (a)  in favour of a party who has been substantially successful in the proceedings; and

                     (b)  against a person or body who holds or held an office or appointment under those regulations and is a party to the proceedings in that capacity.

Note:          For another case where the court can also make an order as to costs, see subsection (3).

             (2)  However, the order can only be made in respect of a part of the proceedings if, during that part, the party against whom the order is to be made asserted a meaning or operation of this Act or those regulations that the court considers:

                     (a)  is not reasonable given the terms of the Act or regulations; or

                     (b)  is not convenient to give effect to Australia’s obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.

             (3)  In proceedings under regulations made for the purposes of section 111B, the court can also make an order as to costs that is:

                     (a)  against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access (within the meaning of the Convention referred to in that section) to a child; and

                     (b)  in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child.

99  After subsection 117C(2)

Insert:

          (2A)  If a party files a copy of an offer and, before any notice of withdrawal is filed, the party to whom the offer is made files a notice that the offer has been accepted, the proceedings end (so far as they concern the party who accepted the offer) when the court makes an order giving effect to the terms of that offer.

100  Subsections 121(1) and (2)

Omit “or by radio broadcast or television”, substitute “, by radio broadcast or television or by other electronic means”.

101  Paragraphs 121(3)(b) and (c)

After “televised account”, insert “or an account by other electronic means”.

102  Subsection 121(8)

Omit “Attorney-General”, substitute “Director of Public Prosecutions”.

103  At the end of paragraphs 121(9)(a) to (d)

Add “or”.

104  After paragraph 121(9)(d)

Insert:

                   (da)  the display of a notice in the premises of a court that lists proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or

105  After subparagraph 121(9)(f)(i)

Insert:

                            (ia)  to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or

106  At the end of subsection 121(10)

Add:

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

107  Subsection 121(11)

Repeal the subsection, substitute:

           (11)  In this section:

court includes:

                     (a)  an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and

                     (b)  a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.

electronic means includes:

                     (a)  in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

                     (b)  in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

108  After section 122

Insert:

122AA   Use of reasonable force in arresting persons

                   A person who is authorised or directed by a provision of this Act, or by a warrant issued under a provision of this Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

109  After section 122A

Insert:

122B   Arrangements with States and Territories

             (1)  The Governor-General may make an arrangement with the relevant authority of a State or internal Territory for the performance by an officer of the State or Territory of a function under this Act.

             (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; or

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

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

110  Paragraphs 123(1)(sa), (sd) and (se)

Omit “approved” (wherever occurring).

111  Subparagraph 123(1)(sf)(ii)

Omit “19G”, substitute “for orders setting aside registered awards under section 19G”.

112  At the end of section 123

Add:

Note:          The power to make Rules of Court conferred by this section is extended by section 109A and subsection 111C(7A). Powers to make Rules of Court are also contained in sections 26B and 37A.

113  Paragraph 125(1)(ba)

Omit “and approved arbitrators”.

114  After paragraph 125(1)(ba)

Insert:

                   (bb)  prescribing requirements for arbitrators; and

                   (bc)  prescribing, or providing for or in relation to, anything that may be dealt with in Rules of Court made under paragraph 123(1)(sa), (sb), (sc), (sd) or (se); and

115  Paragraph 125(1)(c)

Repeal the paragraph, substitute:

                     (c)  prescribing court fees to be payable in respect of proceedings under this Act; and

116  At the end of section 125

Add:

             (3)  To the extent of any inconsistency between regulations and Rules of Court, the regulations prevail.

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.

118  Subsection 65(3) (note)

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

119  Subsection 78(1) (note)

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

Veterans’ Entitlements Act 1986

120  After subparagraph 51(3)(a)(i)

Insert:

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(180/99)