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Family Law Amendment Bill 2000

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1998-1999-2000

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

FAMILY LAW AMENDMENT BILL 1999

 

 

 

 

 

REPLACEMENT SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 

 

 

 



TABLE OF CONTENTS

 

Page

 

Outline of Amendments                                                                1

 

Financial Impact Statement                                                          3

 

Regulation Impact Statement                                                        3

 

Notes on Amendments                                                                   4

 

Amendments to Schedule 1 -

Sanctions for failure to comply with orders

and other obligations                                                            4

 

Amendments to Schedule 2 -

Financial agreements                                                         13

 

Amendments to Schedule 3 -

Other amendments                                                              16

 



AMENDMENTS OF THE FAMILY LAW AMENDMENT BILL 1999

 

OUTLINE OF AMENDMENTS

 

The amendments to the Family Law Amendment Bill 1999 (‘the Bill’) take account of the recommendations and suggestions made by the Senate Legal and Constitutional Legislation Committee on its consideration of the Bill.

 

The objectives of the Bill are set out in the Explanatory Memorandum to the Bill introduced on 22 September 1999.  These amendments will:

 

•        ensure that Stage 1 of the new three tier compliance regime fulfils its preventative goal by making it a more practical and effective stage of the regime.  Stage 1 of the new three tier regime aims to assist people by the provision of information and programs so that they have a greater understanding of their changed parental responsibilities.  The amendments revise Stage 1 of the compliance regime to require the inclusion of standard clauses in the order about the obligations the order creates and the consequences of failing to observe its terms.  The amendments also require that parties be given information about the availability of programs which will assist them in understanding their changed parental responsibilities.

 

•        ensure that Stage 2 of the new compliance regime directs people to a post-separation parenting program which aims to address the real reason for non-compliance.  The amendments will also make it clear that parties should not be referred to a post-separation parenting program where the contravention is serious, or where the contravention is a second or subsequent contravention unless further attendance at a post separation parenting program is warranted. The amendments require that the parties attend the provider of a program to make an assessment as to their suitability for the program, thereby enabling the parties to be streamed into the most appropriate program.  If found suitable, the legislation requires the person to attend the program;

 

•        give the court power to order that, in addition to the person who contravened the parenting order, another party to the parenting order also attend a post separation parenting program, in circumstances where both parents will benefit by addressing the real reason for the breakdown in the orders;

 

•        provide, in Stage 3 of the compliance regime, that where there has been a serious contravention of a parenting order, the court should take action.  The options available to the court include the imposition of a community service order, a bond, a fine or, in the most serious cases, a sentence of imprisonment.  In addition, the court will be able to take action, under Stage 3 of the parenting compliance regime, on second and subsequent contraventions where it is not appropriate to take action under Stage 2;

 

•        restructure the provisions to clarify the standards of proof to be met on the various elements of taking action under Stage 2 and Stage 3 of the parenting compliance regime;

 

•        clarify that the capacity to imprison a person for failing to comply with a maintenance order does not apply to any failure to satisfy a liability for child support under the Child Support (Assessment) Act 1989 ;

 

•        empower the Family Court and the Federal Magistrates Service to vary or discharge each other’s community service orders;

 

•        remove the capacity for parties to a financial agreement to vary such an agreement.  Where changes to the agreement are desired, parties will have to terminate the existing agreement and make a new agreement.  This will avoid difficulties that might be encountered if there were to be an original agreement together with a series of amending agreements;

 

•        provide that, in order for a financial agreement to be binding, the advice of a legal practitioner will be mandatory in all cases;

 

•        protect the interests of third parties where a financial agreement has been terminated, by giving the court jurisdiction to make orders with respect to that property no longer covered by the financial agreement  The court will be given the power (along the lines of subsection 87(9) of the Act) to make orders adjusting the rights of the parties to the agreement and any other interested persons;

•        expand the grounds for the setting aside of binding financial agreements in two ways:

 -      the reference to ‘fraud’ is to be clarified so that the term expressly includes the ‘non-disclosure of property and financial resources’; and

-       the phrase ‘...exceptional circumstances relating to the care, welfare and development of a child of the marriage...’ is to be replaced with ‘...a material change in circumstances (being circumstances relating to the care, welfare and development of a child of the marriage).’  This new approach is made on the basis that agreements made prior to marriage may have been made when there were no children.  This will require the court to make a finding whether having responsibility for children brings about a material change in circumstances sufficient to warrant the court to set the agreement aside.

 

•        provide for the determination by the court of issues of the validity, enforceability and effect of binding financial agreements.  Subsection 87(11) makes provision for proceedings on the validity, enforceability and effect of an approved maintenance agreements to be determined according to the principles of law and equity, and there is no reason why similar provision should not be made in respect of the new financial agreements.  Common law and equitable doctrines of particular relevance to binding financial agreements include mistake, rectification, fraudulent, negligent and innocent misrepresentation, collateral contract, estoppel and damages for breach;

 

•        amend references to ‘maintenance orders under Part VIII of the Family Law Act 1975 ’ in a number of other Acts to include financial agreements made under new Part VIIIA;

 

•        remove the restriction from the associated proceedings provisions of both the Family Law Act 1975 and Federal Magistrates Act 1999, where the proceeding currently on foot in the other court is the dissolution of marriage;

 

•        ensure compatibility between the appeals provisions of the Family Law Act 1975, the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988 and the Federal Magistrates Act 1999 ;

 

•        clarify that on applications for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction, the regulations can provide the court with a discretion as to whether the return should be to the country from which the child was removed, to another appropriate country or to a specific individual; and

 

•        effect various technical and drafting changes.

 

FINANCIAL IMPACT STATEMENT

 

The amendments do not have any financial impact.

 

REGULATION IMPACT STATEMENT

 

The Explanatory Memorandum for the Bill stated that there would be low impact on business resulting from the passage of Schedule 2 dealing with binding financial agreements.  The amendment being proposed to that Schedule to require mandatory legal advice in the process of entering into such agreements will not change that level of impact.

 



NOTES ON AMENDMENTS

 

AMENDMENTS TO SCHEDULE 1 - CONSEQUENCES OF FAILURE TO COMPLY WITH ORDERS AND THEIR OBLIGATIONS

 

AMENDMENT 1

 

1.      This amendment inserts a reference to new subclause 2(1A) as a consequence of Amendment 2.

 

AMENDMENT 2

 

2.      This amendment inserts a new subclause 2(1A) to provide that the complementary amendments in Items 31A and 117 being made by Schedule 3 of the Bill operate from the date of Royal Assent rather than 28 days after the Bill receives Royal Assent.  Item 31A amends the Family Law Act 1975 and item 117 amends the Federal Magistrates Act 1999 to make it clear that divorce proceedings and enforcement proceedings are not matters associated with applications for ancillary relief such as parenting orders and property orders.  Because these amendments clarify the jurisdiction of the Federal Magistrates Service, they should commence as soon as possible.

 

AMENDMENT 3

 

3.      This amendment to the heading of Schedule 1 removes the reference to ‘Sanctions for ...’ and substitutes the words ‘Consequences of ...’.  The changed wording more accurately reflects the objectives and operation of the new parenting compliance regime, as revised by these amendments.

 

AMENDMENT 4

 

4.      This amendment substitutes the outline of the new Division 13A inserted by Item 3 of Schedule 1 of the Bill.  The new outline reflects the revisions made by these amendments to Stages 2 and 3 of the parenting compliance regime.  In general, Stage 2 of the parenting compliance regime will apply when a party has failed to observe a parenting order for the first time.  Stage 3 will apply where the contravention is a second or subsequent contravention or where the contravention is a first contravention but it is a serious contravention.

 

AMENDMENT 5

 

5.      Section 63DA, being inserted by the Bill, provides a means to ensure that where people are making a parenting plan, they understand their obligations and the consequences that follow should they fail to observe the plan.  This is achieved by requiring the adviser (either the family and child counsellor, or a family and child mediator, or a legal practitioner) providing the assistance to inform the persons of the detail of the obligation that the plan creates on each of the parties, the consequences that may follow if a person contravenes the requirements of the plan and the availability of programs to assist persons experiencing difficulties in complying with the plan. 

 

6.      Amendment 5 revises paragraph 63DA(c) to emphasise that the adviser is to identify programs that are available to assist a person to comply with the plan.

 

AMENDMENT 6

 

7.      This amendment adds a new subsection 63DA(2) enabling the court to produce a document which sets out the availability of programs to assist people experiencing difficulties in complying with their parenting agreement.  This amendment will improve the practical operation of the parenting compliance regime.

 

AMENDMENT 7

 

8.      This is a technical amendment to subsection 63F(3) to correct a reference to the enforcement provisions with the enactment in the Bill of the new enforcement provisions relating to children in Division 13A of Part VII.

 

AMENDMENTS 8 and 9

 

9.      These amendments are technical amendments as a consequence of the changes to Stage 3 of the parenting compliance regime contained in section 70NJ (see Amendment 28).

 

AMENDMENT 10

 

10.    This amendment substitutes a new section 65DA (the preventative stage of the parenting compliance regime).

 

11.    New subsection 65DA(1) provides that the new section applies when the court makes a parenting order.

 

12.    New subsection 65DA(2) will ensure that the obligation to explain the effects of a parenting order (including an order by consent) can be met by including standard clauses in the order.  The amendment requires the court to draft its parenting orders so that the parties are informed of the obligations and consequences imposed by the order. 

 

13.    New subsection 65DA(3) provides that where a party is not legally represented in proceedings, it is the duty of the court to explain the availability of programs to assist people experiencing difficulties in complying with the parenting order and the availability of remedial orders for location and recovery of a child if the parenting order is contravened. 

 

14.    New subsection 65DA(4) provides that the court may prepare a document outlining the availability of programs, both in the court and in the community, to assist parties to understand their responsibilities under the order.  Such a document may also give information about the availability and use of location and recovery orders, in addition to the use of the compliance provisions, when a breach of the order occurs.  This type of document would be particularly useful where consent orders are made by the court, as the parties may not be present when such orders are made.

 

15.    New subsection 65DA(5) allows the court to request a legal practitioner representing a party in proceedings to assist in the explanation of the obligations and consequences of the order.  The court may also request the practitioner to provide details of available programs to help the person in understanding their obligations and the availability of remedial orders for location and recovery of a child if the parenting order is contravened.

 

16.    New subsection 65DA(6) clarifies that where the court makes a request to a legal practitioner, the legal practitioner is required to comply with the request.

 

17.    New subsection 65DA(7) provides that where the court, or a legal practitioner, fails to provide the assistance required by section 65DA, that failure does not invalidate the parenting order that was made.

 

18.    New subsection 65DA(8) makes it clear that there is an obligation on both the court and any legal practitioner, when providing the information required, to do so in language likely to be understood by the parties.

 

AMENDMENT 11

 

19.    This amendment is a technical consequential amendment and substitutes references to section 112AD in paragraphs 65Q(1)(c) and (d) of the Family Law Act 1975 with references to the new Division 13A being inserted by the Bill.

 

AMENDMENT 12

 

20.    This amendment is a technical consequential amendment and substitutes references to section 112AD in paragraphs 65U(1)(c) and (d) of the Family Law Act 1975 with references to the new Division 13A being inserted by the Bill.

 

AMENDMENT 13

 

21.    This amendment is a technical consequential amendment and substitutes references to section 112AD in paragraphs 65V(1)(c) and (d) of the Family Law Act 1975 with references to the new Division 13A being inserted by the Bill.

 

AMENDMENT 14

 

22.    This amendment removes the reference to ‘Sanctions for...’ and substitutes the reference ‘Consequences of...’.  The changed wording, also made at Amendment 3, more accurately reflects the objectives and operation of the new parenting compliance regime, as revised by these amendments.

 

AMENDMENT 15

 

23.    This amendment removes the provision which set out the objects of the Division on the basis that the revised stages of the parenting compliance regime make this provision no longer necessary. 

 

AMENDMENT 16

 

24.    This amendment omits from section 70NB the definition of applicable Rules of Court as that term is defined in subsection 4(1) as a consequence of the enactment of the Federal Magistrates (Consequential Amendments) Act 1999 .

 

AMENDMENT 17

 

25.    This amendment inserts in section 70NB a new definition of appropriate post-separation parenting program or appropriate program to clarify that the term relates to a program available within a reasonable distance from a person's place of residence or place of work.

 

AMENDMENT 18

 

26.    This amendment substitutes the definition of community service order.  The new definition expands the types of orders that can constitute a community service order as set out in subsection 70NK(2A), as inserted by Amendment 34, to include a work order, an attendance centre order, an attendance order or a community based order.

 

AMENDMENT 19

 

27.    This amendment removes the definition of participate from section 70NB as that term is no longer used in the Bill.  The term is replaced with a requirement to ‘attend’ post separation parenting programs on the basis that attendance is capable of a more objective test.  This amendment will make the parenting compliance regime more practical and workable.

 

AMENDMENT 20

 

28.    This amendment to the definition of post-separation parenting program in section 70NB removes the limits on the types of programs that a party might be ordered to attend.  These programs are designed to assist people to resolve disputes about their parenting responsibilities with the aim of improving compliance with parenting orders. 

 

AMENDMENT 21

 

29.    This amendment inserts a definition of the term primary order to make the drafting of sections 70NF and 70NJ less complex.

 

AMENDMENT 22

 

30.    This amendment inserts a reference to a new subsection 70NE(1A), consequential on Amendment 23.

 

AMENDMENT 23

 

31.    This amendment inserts a new subsection 70NE(1A) that provides the meaning of ‘reasonable excuse for contravening an order’.  The new subsection clarifies that a person may have a reasonable excuse for non-compliance if the person did not understand the obligations imposed by the order and the court was satisfied that the non-compliance should be excused.  This may occur where a person has a limited understanding of language because they come from a non-English speaking background or because they have a limited education.  This amendment duplicates the reasonable excuse provision contained in existing subsection 112AC(2).

 

32.    New subsection 70NE(1B), consequential on new subsection 70NE(1A), requires the court when excusing the contravention to again explain to the person the obligations created by the parenting order and the consequences of further non-compliance with the order.

 

AMENDMENT 24

 

33.    This amendment inserts a new section 70NEA, which clarifies that the standard for the determination of whether a reasonable excuse existed for the contravention is proof on the balance of probabilities.  This amendment duplicates the reasonable excuse provision contained in existing paragraph 112AD(1A)(b) of the Act.

 

AMENDMENT 25

 

34.    This amendment revises Stage 2 of the parenting compliance regime by omitting sections 70NF - 70NI and substituting sections 70NF - section 70NIB.

 

New section 70NF

 

35.    New subsection 70NF(1) provides that Stage 2 of the parenting compliance regime applies where:

 

•        a court has not previously determined that the person has contravened a parenting order without reasonable excuse; or

 

•        there is a second or subsequent contravention and it is still desirable for the court to make an order that the person attend a post-separation parenting program.

 

36.    New subsection 70NF(2) provides that the court should not make an order to attend a post-separation parenting program where the person has behaved in a way that showed a serious disregard for obligations under a parenting order.  What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the kidnapping of a child or harassment despite repeated warnings and the terms of the parenting order.  In such cases, the court will deal with the matter under Stage 3 of the parenting compliance regime, which requires the court to take actions ranging from community service orders to fines and imprisonment.

 

New section 70NG

 

37.    The amendments to section 70NG revise the powers of the court.  In circumstances where Stage 2 of the parenting compliance regime applies, the court may order the contravening party and, if appropriate, another party to the enforcement proceedings, to attend a post-separation parenting program.  This attendance is to enable the provider of the program to assess whether the contravening party and any other party ordered to attend are suitable to attend an identified program.  If they are found suitable to attend the program, they must attend without any further court order.  Also, the court may, either alone or in combination with an order to attend a post-separation parenting program, make an order to compensate for any contact lost as a result of the contravention.

 

38.    New subsection 70NG(2) provides that the court may order another person (usually the other parent) to attend a post-separation parenting program only where:

 

•        the other person is a party to the proceedings; and

 

•        the court is satisfied that the other person’s attendance at the program is appropriate because of a connection between the contravention of the primary order and that person’s parental responsibilities under the order. 

 

39.    New subsection 70NG(3) provides for the notification by the court to the program provider of the details of the court order.

 

New section 70NH

 

40.    Where the provider of a program decides that a person is unsuitable to attend a post-separation parenting program, the provider of the program must, under new subsection 70NH(1), notify the court of that assessment.

 

41.    Where a person fails to attend for assessment to attend a post-separation parenting program or, having been found suitable, fails to attend the program, new subsection 70NH(2) requires the provider of the program to notify the court of the failure to comply with the order.  The court will have to consider what action to take.

 

New section 70NI

 

42.    New section 70NI provides that evidence of anything said or admissions made in the suitability assessment process for a person to attend a post-separation parenting program, or during their attendance at such a program, is not admissible in any proceedings in any court (whether exercising federal jurisdiction or not) or before any person authorised to take evidence.  This provision is consistent with section 19N and subsection 62F(8) of the Family Law Act 1975 dealing with the inadmissibility of statements or admissions made during primary dispute resolution.

 

New section 70NIA

 

43.    New section 70NIA provides that where a program provider has informed the court, under paragraph 70NH(2)(a), that a person who has been assessed as suitable to attend a post-separation parenting program, or a part of such a program, has failed to attend the program, the court can make a further order as to that person’s attendance at the program.

 

New section 70NIB

 

44.    New section 70NIB is a re-positioning of the former subsection 70NG(4), consequential on the restructure of Subdivision B, and is in exactly the same terms as it appeared in the Bill when it was introduced.

 

AMENDMENTS 26 and 27

 

45.    These are technical amendments to the heading to Subdivision C (Stage 3 of the parenting compliance regime) and the heading to section 70NJ, consequential on the changes made by these amendments to Stage 3 of the parenting compliance regime.

 

AMENDMENT 28

 

46.    This amendment revises subsections 70NJ(1) and (2) in a number of ways to make it clear that Stage 3 of the parenting compliance regime does not apply where the circumstances warrant a person’s attendance at a further post separation parenting program.

 

47.    New subsection 70NJ(1) sets out the circumstances under which the court must make an order under Stage 3 of the parenting compliance regime.  The circumstances are that:

 

•        there has been no previous court order for a contravention of the parenting order but the court is satisfied that the behaviour of the parent is such as to show a serious disregard for his or her parenting obligations; or

 

•        the court has determined that a party has previously contravened an order without reasonable excuse.

 

48.    New subsection 70NJ(2) allows the court to determine that, although a party has previously contravened an order without reasonable excuse, it would be more appropriate to deal with the contravention under Stage 2 of the parenting compliance regime.

 

49.    New subsection 70NJ(2A) provides that where Stage 3 of the parenting compliance regime applies to a particular contravention, the court must make the most appropriate of the orders set out in subsection 70NJ(3).

 

50.    New subsection 70NJ(2B) clarifies that the court can make an order under Stage 3 of the parenting compliance regime regardless of whether:

 

•        the parenting order to which the contravention relates was made prior to the commencement of the new regime; or

 

•        the contravention occurred prior to the commencement of the new regime.

 

AMENDMENT 29

 

51.    This amendment deletes the words ‘sanctions that are available to be imposed’ and replaces them with ‘orders that are available to be made’, consequential on Amendment 28 above. 

 

AMENDMENT 30

 

52.    Subsection 70NJ(5) of the Bill provides that the court must consider the best interests of the child as the paramount consideration when varying a parenting order under paragraph 70NJ(3)(c).  Subparagraphs 70NJ(5)(a) and (c) are amended, consequential on the replacement of ‘participate’ with ‘attend’ by Amendment 19.

 

53.    The amendment to subparagraph 70NJ(5)(b) is a technical amendment, consequential on the change to the definition of appropriate post-separation parenting program or appropriate program contained in Amendment 17.

 

AMENDMENT 31

 

54.    In this amendment, the word ‘intentional’ in subsection 70NJ(6) has been substituted for ‘wilful’.  Upon the enactment of the Criminal Code Act 1995 provisions with references to ‘wilful’ are either being deleted or changed to ‘intentional’.  To ensure that both the courts and the parties are aware, from the wording of the Family Law Act 1975 , that imprisonment under paragraph 70NJ(3)(e) applies not only in cases where the contravention arose from fraudulent activity, but also where the contravention arose from intentional activity, the word ‘intentional’ has replaced the word ‘wilful’.  This change is not intended to have any effect on the interpretation of the provision, and in particular is not intended to expand the grounds on which a court might imprison someone for a contravention of a child maintenance order.

 

55.    This amendment also inserts a new subsection 70NJ(6A), which clarifies that the operation of the new compliance regime, and particularly orders of imprisonment, does not extend to non-compliance with assessments, departure orders or lump sum maintenance orders made under the Child Support (Assessment) Act 1989.

 

AMENDMENTS 32 and 33

 

56.    These amendments are technical amendments required, consequential on the substitution of subsections 70NJ(1) and (2) by Amendment 28.

 

AMENDMENT 34

 

57.    This amendment inserts new subsection 70NK(2A) that defines community service order for the purposes of the section.  The definition contains most of the alternative sentencing options presently referred to in existing subsection 112AG(3) of the Act.  Although the current arrangements made between the Commonwealth and the States and Territories do not extend beyond the making of a community service order, the capacity to make arrangements for the other alternative sentences is desirable to ensure that there are more options available to the court in dealing with failing to comply with parenting orders.

 

58.    The Commonwealth will be moving swiftly to commence negotiations with the States and Territories for these alternatives for dealing with contraventions of parenting orders and to renegotiate the existing arrangements under section 112AN.

 

AMENDMENT 35

 

59.    This amendment to section 70NL substitutes new paragraphs (a) and (b) to replace old paragraphs (a) to (c).  New paragraph 70NL(a) gives the Family Court and the Federal Magistrates Service the capacity to vary or discharge each other’s community service orders.  Paragraph 70NL(b) is in the same terms as paragraph 70NL(c) in the Bill as introduced.  This amendment will improve the practical operation of both the Family Court and the Federal Magistrates Service by enabling community service orders made by one court to be varied or discharged by the other court.

 

AMENDMENTS 36 and 37

 

60.    Item 9 of Schedule 1 inserts a rule making power in relation to the general enforcement of orders under the Act.  The provision makes references to the Child Support (Registration and Collection) Act 1988 in paragraph 109A(1)(c) and subparagraph 109A(2)(c)(iv).  These amendments insert into that paragraph and subparagraph references to the enforcement of orders made under the Child Support (Assessment) Act 1989 to ensure that there is comprehensive coverage of the new enforcement rules.

 

61.    This amendment clarifies that provision can be made in the Rules of Court to ensure compliance with orders for the imprisonment of persons who have intentionally or fraudulently failed to comply with court orders.  More detailed explanation is provided under the notes to Amendment 31.

 

AMENDMENT 38

 

62.    This amendment is consequential on the substitution of ‘intentional’ for ‘wilful’ in Amendment 31.

 



AMENDMENTS TO SCHEDULE 2 - FINANCIAL AGREEMENTS

 

AMENDMENT 39

 

63.    This amendment revises the definition of ‘financial agreement’ by removing the reference to ‘agreement as varied’, to clarify that there cannot be any more than one agreement between the parties at any one time.  This will improve the practical operation of this measure by avoiding the confusion of interpreting a primary document and its variations.

 

AMENDMENT 40

 

64.    This amendment inserts a new Item 6A of Schedule 2, which adds new subsection 85A(3).  New subsection 85A(3) clarifies that where an ante-nuptial or post-nuptial settlement also satisfies the requirements for a binding financial agreement, the court cannot make an order under section 85A in respect of such settlements.  This amendment means that when a document could be characterised as either a nuptial settlement or a financial agreement, the document is to be treated as a financial agreement.

 

AMENDMENT 41

 

65.    This amendment corrects a drafting error in the definition of ‘dealt with’ in section 90A.

 

AMENDMENTS 42, 46 and 50

 

66.    These amendments reinforce the fact that variations of financial agreements are not permitted, by ensuring that only one financial agreement can be in force at any particular time.

 

AMENDMENTS 43, 47 and 51

 

67.    These amendments clarify that financial agreements can deal with property that was acquired by either, or both, of the parties after the agreement was made and prior to the dissolution of the marriage.

 

AMENDMENTS 44, 48 and 52

 

68.    These amendments clarify that where a financial agreement contains matters other than those specified in subsections 90B(2), 90C(2) and 90D(2), those additional matters must be incidental, or ancillary to, the matters specified in these subsections.

 

AMENDMENTS 45, 49 and 53

 

69.    These amendments are consequential to Amendments 42, 46 and 50, which provide that only one financial agreement can be in force at any particular time.

 

AMENDMENT 54

 

70.    Section 90F provides that an agreement that purports to exclude or limit the court’s jurisdiction in relation to the maintenance of a party to a marriage is of no effect where the party would have been unable to support themselves without an income tested pension, allowance or benefit.  The assessment of whether or not the party would be able to support themselves without an income tested pension, allowance or benefit needs to be made at the time of the breakdown of the marriage.  This amendment will permit the court to exercise jurisdiction only where the agreement was entered into after the breakdown or dissolution of a marriage.  The jurisdiction of the court is not required where the agreement is made before the breakdown of the marriage.

 

AMENDMENT 55

 

71.    This is an amendment consequential upon the change made by Amendment 54.

 

AMENDMENT 56

 

72.    Section 90G sets out the circumstances that need to be satisfied before a financial agreement under new Part VIIIA will be binding on the parties.  This amendment substitutes a new paragraph 90G(1)(b) making independent legal advice compulsory for such agreements and clarifying the nature of the advice to be provided.  This approach is along the lines of paragraph 47(1)(d) of the Property (Relationships) Act 1984 (NSW).

 

AMENDMENT 57

 

73.    Section 90J makes provision for the termination of a financial agreement between the parties to a marriage.  The formalities for termination are broadly similar to those for the making of a binding financial agreement.  This amendment to paragraphs 90J(2)(b) and (c) inserts termination formalities that mirror the approach taken by Amendment 56 in relation to the making of a financial agreement. 

 

AMENDMENT 58

 

74.    This amendment inserts a new subsection 90J(3) to ensure the court has power, where an agreement has been terminated, to protect the rights of both the parties to the agreement and any third parties who may have had dealings in relation to property that was the subject of the agreement.  The amendment gives the court power in these circumstances to make such orders, including an order for the transfer of property, as it considers just and equitable.  The amendment reflects the approach taken by existing subsection 87(9) of Part VIII of the Act in dealing with property covered by an approved maintenance agreement that has subsequently been revoked.

 

AMENDMENT 59

 

75.    This amendment expressly provides that, for the purposes of setting aside a financial agreement, the ground of fraud extends to the non-disclosure of a material matter.

 

76.    Paragraph 90K(1)(b) sets out the proposed grounds for setting aside a financial agreement, which include that the agreement is void, voidable or unenforceable.  These grounds reflect the principles of common law and equity, under which an agreement would fail because of lack of certainty, lack of intention to enter legal relations, or because the agreement is affected by duress, undue influence, unconscionability, misrepresentation or operative mistake.

 

AMENDMENT 60

 

77.    This amendment substitutes a new paragraph 90K(1)(d).  This amendment replaces the test of ‘...exceptional circumstances relating to the care welfare and development of a child of the marriage...’ with a test of ‘...a material change in circumstances...’.  This new approach is made on the basis that agreements made prior to marriage may have been made when there were no children.  This will require the court to make a finding as to whether having responsibility for children brings about a material change in circumstances sufficient to warrant the court’s intervention to set the agreement aside.

 

AMENDMENT 61

 

78.    This amendment inserts a new section 90KA.  Section 90KA will provide that the validity, enforceability and effect of a maintenance agreement shall be determined by the court according to the principles of law and equity.  Common law and equitable doctrines of particular relevance to maintenance agreements include mistake, rectification, fraudulent, negligent and innocent misrepresentation, collateral contract, estoppel and damages for breach.  The new provision reflects a like provision in existing subsection 87(11) of Part VIII of the Act.

 

 



AMENDMENTS TO SCHEDULE 3 - OTHER AMENDMENTS

 

A New Tax System (Family Assistance) Act 1999

 

AMENDMENTS 62, 63, 64 and 65

 

79.    Subsection 3(1) of the A New Tax System (Family Assistance) Act 1999 defines ‘maintenance agreement’ as including a reference to maintenance agreements under the Family Law Act 1975 .  These amendments of the A New Tax System (Family Assistance) Act 1999 include in that Act a reference to financial agreements in the definition of maintenance agreement, consequential on the new financial agreements provisions in Schedule 2 of the Bill.

 

Bankruptcy Act 1966

 

AMENDMENT 66

 

80.    Section 5 of the Bankruptcy Act 1966 defines ‘maintenance agreement’ as including a reference to maintenance agreements under the Family Law Act 1975 .  This amendment to the Bankruptcy Act 1966 includes a reference to financial agreements in the definition of maintenance agreement, consequential on the enactment of the new financial agreements provisions under Schedule 2 of the Bill.

 

Child Support (Assessment) Act 1989

 

AMENDMENT 67

 

81.    This amendment replaces Item 1 of Schedule 3 of the Bill to insert, in paragraph 84(7)(b) of the Child Support (Assessment) Act 1989 , a reference to financial agreements, consequential on the financial agreements provisions under Schedule 2 of the Bill.

 

AMENDMENT 68

 

82.    This amendment replaces Item 4 of Schedule 3 of the Bill to substitute additional subsections in section 102 of the Child Support (Assessment) Act 1989 so that the appeals provisions in the Child Support (Assessment) Act 1989 reflect the appeals provisions contained in the Act.  It also reflects the appeals provisions inserted in the Act by the Federal Magistrates (Consequential Amendments) Act 1999 relating to appeals to the Family Court from decisions of the Federal Magistrates Service.

 

AMENDMENT 69

 

83.    This amendment includes references to financial agreements in section 152 of the Child Support (Assessment) Act 1989 , consequential on the financial agreements provisions under Schedule 2 of the Bill.

 

Child Support (Registration and Collection) Act 1988

 

AMENDMENT 70

 

84.    This amendment includes references to financial agreements in section 4 of the Child Support (Registration and Collection) Act 1988 , consequential on the financial agreements provisions under Schedule 2 of the Bill.

 

AMENDMENT 71

 

85.    This amendment replaces Item 5 of Schedule 3 of the Bill to substitute additional subsections in section 107 of the Child Support (Registration and Collection) Act 1988 so that the appeals provisions under the Child Support (Registration and Collection) Act 1988 reflect the general appeals provisions contained in the Act.  It also reflects the appeals provisions inserted in the Family Law Act 1975 by the Federal Magistrates (Consequential Amendments) Act 1999 relating to appeals to the Family Court from decisions of the Federal Magistrates Service.

 

Family Law Act 1975

 

AMENDMENT 72

 

86.    Subsections 19D(5) and 19E(2) respectively provide for any arbitral award made in court referred or private arbitration to be registered and enforced, as if the award wa s a decree of the court, in a court exercising jurisdiction under the Family Law Act 1975 .  The process to be followed for registration is currently to be provided by the applicable Rules of Court of the Family Court or the Federal Magistrates Service .  This amendment substitutes the making of Regulations in lieu of Rules of Court as the method for establishing the registration process.  This new approach is the same as that adopted under the Act for establishing the registration process in respect of the enforcement of overseas custody and maintenance orders.

 

AMENDMENTS 73 and 74

 

87.    These amendments to Item 22 of Schedule 3 of the Bill reflect those made in Amendment 59 about the setting aside of financial agreements.  Amendments 72 and 73 provide for consistency between the setting aside provisions for arbitral awards and those for financial agreements.

 

AMENDMENT 75

 

88.    Existing section 26B of the Act provides the Family Court with the power, by making Rules of Court, to delegate to Judicial Registrars all of its powers except the power to make ‘excluded child orders’.  Item 30 of Schedule 3 of the Bill excludes from the delegation powers the capacity for Judicial Registrars to make orders setting aside a registered arbitral award.  It should be noted that paragraph 178 of the Explanatory Memorandum to the Bill, dealing with that Item, incorrectly stated that the Item provided the power to set aside such awards.

 

89.    Subsection 26B(1A) defines ‘excluded child orders’ for the purposes of that section to include any final parenting order, such as a residence order, a contact order and a specific issues order.  Amendment 74 inserts new Item 30A in Schedule 3 of the Bill to allow the delegation to Judicial Registrars of the power to make a compensatory contact order, where such an order is appropriate under new Division 13A of Part VII.  It also restructures the provision for ease of reading.

 

AMENDMENT 76

 

90.    Existing section 33A, which was inserted into the Act by the Federal Magistrates (Consequential Amendments) Act 1999 , precludes proceedings being instituted in the Family Court where there is an associated matter pending in the Federal Magistrates Service.  However, by virtue of existing subsection 33A(2) of the Act, the restriction does not apply to proceedings relating to compliance with parenting orders or proceedings for failure to comply with a court order.

 

91.    This amendment makes two changes to existing subsection 33A(2) of the Act.  The first change is to remove the restriction on instituting proceedings where the existing proceedings in the other court is an application for dissolution of a marriage.  This is because in nearly all cases proceedings for dissolution are a formality and should not have a restrictive procedural connection with ancillary issues, such as property matters or parenting disputes.

 

92.    The general enforcement provisions of the Act, Part XIII, are not specified in subsection 33A(2) of the Act.  The second part of this amendment corrects that omission.

 

AMENDMENT 77

 

93.    Existing section 44 of the Act sets out the various times within which applications can be made to the court.  Amendment 76 inserts new subsection 44(3B) that specifies the time restriction for the institution of maintenance and property proceedings where:

 

•        a financial agreement has been set aside under section 90K; or

 

•        a financial agreement has been found to be invalid under section 90KA.

 

94.    The time limits specified are consistent with those that currently apply where a section 87 maintenance agreement has been revoked.

 

AMENDMENT 78

 

95.    Existing subsection 45A(8) of the Act, inserted by the Federal Magistrates (Consequential Amendments) Act 1999, deals with the mandatory transfer of proceedings from the Federal Magistrates Service to the Family Court.   That subsection provides that the section does not apply to proceedings under Part XIIIA. 

 

96.    This amendment adds, to subsection 45A(8), a reference to Part XIII with the effect that transfer is not required in any enforcement proceeding.

 

AMENDMENT 79

 

97.    Existing subdivision F of Division 7 of Part VII of the Act deals with the circumstances in which an order for child maintenance ceases to be in force.  Section 66W makes provision for the recovery of any arrears of child maintenance that were due at the time the order ceased to be in force.  In Heethuis v Van Genderen (1999) 24 Fam LR 396 the Family Court held that, if the court order stopped being in force, the court did not have the power to vary the maintenance order under section 66S.  However, whilst the order continues for the purposes of recovery of arrears by virtue of section 66W, there was no provision for the variation or discharge of those arrears.  The effect of this can be particularly harsh on liable parents.

 

98.    Amendment 78 inserts new Items 56A and 56B to overcome the concern expressed in that case.  Item 56A replaces existing section 66W.  New subsection 66W(1) repeats the wording of the original section with the addition of references to other provisions of the Act that provide for the cessation of the operation of the maintenance order.  New subsection 66W(2) provides that, where arrears of maintenance have accrued at the date of the cessation of the maintenance order, the court may order the discharge, or variation, of the arrears.

 

99.    Item 56B provides that the court is able to make orders in respect of arrears outstanding at or after the date of commencement of new section 66W.

 

AMENDMENT 80

 

100.  This is a technical amendment to paragraph 67X(3)(a) of the Act, which replaces a monetary penalty with the corresponding penalty units formula provided in subsection 4AA(1) of the Crimes Act 1914 .  It also adds a Note to direct people to that section to ascertain the value of a penalty unit.

 

AMENDMENT 81

 

101.  This amendment repeals existing section 69MA of the Act, which allows the Federal Magistrates Service to hear residence matters only with the consent of the parties or where the parties are seeking consent orders.  This amendment gives the Federal Magistrates Service unrestricted jurisdiction to make orders regarding the residence of children.  As a consequence, the residence jurisdiction of the Federal Magistrates Service will be concurrent with that of the Family Court of Australia.

 

AMENDMENT 82

 

102.  Item 76 of Schedule 3 of the Bill inserts new section 94AAA of the Act to provide for appeals to the Family Court from the Federal Magistrates Service.  Section 94AAA of the Act, which was drafted before the passage of the Federal Magistrates Act 1999 , is not consistent with the approach taken in that Act to the differentiation between the rules of court to be used in the Family Court and the Federal Magistrates Service.

 

103.  This amendment replaces section 94AAA with new subsections 94(2A) to (2F), to update the appeals provisions following the passage of the Federal Magistrates Act 1999 .

 

AMENDMENT 83

 

104.  This amendment corrects a drafting error.

 

AMENDMENT 84

 

105.  Order 23, rule 5(5) of the Family Court Rules provides that a child shall not be called as a witness or remain in court without leave.  Order 23, rule 5(6) only allows a child (other than a child who is, or is seeking to become, a party to the proceedings) to swear an affidavit for the purposes of a proceeding with the leave of the court.  These rules have a sound policy basis.

 

106.  In Renshaw and Reschke (1997) 22 Fam LR 354, a husband applied to call his 16 year old son as a witness.  Counsel for the husband argued that Order 23, rule 5(5) was beyond the rule-making power contained in section 123 of the Act.  The Full Court did not have to decide the issue but commented there was some force to the argument.

 

107.  This amendment inserts new section 100B to overcome the doubts expressed by the court in Renshaw and Reschke , and to deal with the issue of the swearing of affidavits.  It does so using three new subsections.  Subsection 100B(1) deals with the issue of a child swearing an affidavit.  It follows the approach of Order 23, rule 5(6).  However, rather than requiring the leave of the court, an order of the court must be obtained.  There is no practical difference, in terms of the procedure that must be followed by a party to proceedings, between seeking the leave of the court and obtaining an order of the court.  To ensure consistency, therefore, between the subsections of new section 100B, the requirement to obtain a court order has been applied to both.

 

108.  New subsection 100B(2) provides for the court, where it considers that course is appropriate, to make an order allowing a child to be called as a witness, or to be present, during proceedings in the court.

 

109.  The issue of when it might be appropriate for a child to give evidence or be present in family law proceedings was considered in early cases.  In the case of In the Marriage of Borzak (1979) 5 Fam LR 571 at 575, Wood SJ said ‘the prohibition against calling a child as a witness is designed to protect the child from giving evidence for or against either of his parents’.  Matters that might be taken into account in exercising the discretion include: the nature and degree of cogency of the evidence that the child might provide; the availability of such evidence from alternative sources; the maturity and background of the child; and the relationship of the child to persons affected by those proceedings.

 

110.  New subsection 100B(3) makes it clear that the provision applies to all persons under the age of 18 years.

 

AMENDMENTS 85, 86, 87 and 88

 

111.  The 1986 Hague Abduction Convention Regulations giving effect to the Hague Abduction Convention provide for the return of the child to the applicant.  The Regulations were amended in 1995 to provide that return was to be ‘... to the country in which he or she habitually resided immediately before his or her removal or retention’.  However, the Full Court of the Family Court, in Laing v The Central Authority (1999) FLC ¶92-849 held, by majority, that each case had to be considered on its own facts and this could mean return to a Central Authority or an individual.

 

112.  Paragraph 110 of the Explanatory Report to the  Hague Abduction Convention, states -

The Convention did not accept a proposal to the effect that the return of the child should always be to the State of its habitual residence before its removal.  Admittedly, one of the underlying reasons for requiring the return of the child was the desire to prevent the ‘natural’ jurisdiction of the courts of the State of the child's residence being evaded with impunity, by force.  However, including such a provision in the Convention would have made its application so inflexible as to be useless.  In fact, we must not forget that it is the right of children not to be removed from a particular environment, which sometimes is a basically family one, which the fight against international child abduction seeks to protect.  Now, when the applicant no longer lives in what was the State of the child's habitual residence prior to its removal, the return of the child to that State might cause practical problems which would be difficult to resolve.  The Convention's silence on the matter must therefore be understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter's present place of residence.

 

113.  These amendments bring the provisions into line with the interpretation of the Convention expressed in the Explanatory Report.  This will enable the making of regulations to provide for the return of the child under the Convention.

 

AMENDMENT 89

 

114.  This is a technical amendment to subsection 112AH(8) of the Act, which replaces a monetary penalty with the corresponding penalty units formula provided in subsection 4AA(1) of the Crimes Act 1914 .  It also adds a Note to direct people to that section to ascertain the value of a penalty unit.

 

AMENDMENT 90

 

115.  This is a drafting amendment to make a technical correction to the proposed subsection 117C(2A) of the Act.

 

Federal Magistrates Act 1999

 

AMENDMENT 91

 

116.  Existing subsection 19(1) of the Federal Magistrates Act 1999 precludes proceedings being instituted in the Federal Magistrates Service where there is an associated matter pending in the Family Court.  However, by subsection 19(2), the restriction does not apply to enforcement proceedings or proceedings for failing to comply with a court order.

 

117.  This amendment mirrors the changes made to subsection 33A(2) of the Act  by Amendment 75.

 

118.  The general enforcement provisions of the Family Law Act, Part XIII, are not specified in subsection 19(2).  The second part of this amendment corrects that omission. 

 

AMENDMENTS 92 and 93

 

119.  These amendments make the same correction to the Notes at the end of existing subsections 65(3) and 78(1) of the Act as are being made by Amendment 77.

 

Veterans’ Entitlements Act 1986

 

AMENDMENT 94

 

120.  Division 10 of Part IIIB of the Veterans’ Entitlements Act 1986 makes provision for the spreading of capitalised maintenance income received by the veteran so that it is taken into account over the whole of the period in respect of which it is received.  Capitalised maintenance is defined by reference to a ‘maintenance agreement’ under the Act. This amendment inserts new subparagraph 51(3)(a)(ia) to include provision for the financial agreements contained in Schedule 2 of the Bill.