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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 2000

 

 

 

 

 

 

 

 

 

 

FURTHER REVISED EXPLANATORY MEMORANDUM

(taking into account amendments made by the Senate)

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams  AM QC MP)

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY

THE HOUSE OF REPRESENTATIVES AND THE SENATE

TO THE BILL AS INTRODUCED



 

 

TABLE OF CONTENTS

 

                                                                                                                                          Page

 

General Outline                                                                                                                    1

 

Financial Impact Statement                                                                                                 3

 

Regulation Impact on Business                                                                                            4

 

Regulation Impact Statement                                                                                              6

 

Consultation Statement                                                                                                        8

 

Notes on Clauses                                                                                                                10

Schedule 1 - Sanctions for failure to comply with orders and other obligations              11

 

Schedule 2 - Financial agreements                                                                                    26

 

Schedule 3 - Other amendments                                                                                       33

 

 

 



FAMILY LAW AMENDMENT BILL 2000

 

GENERAL OUTLINE

The 1992 Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (‘the Act’) concluded that the Act was an effective vehicle for the administration of family law matters, but that generally the Family Court was not using the powers granted to it to the extent possible nor was the Court making the best use of the flexibility of the Act, particularly as to penalties for the enforcement of court orders.  The Report identified a large number of areas for which legislative amendment could improve the equity and fairness of the law.

The Government is committed to family law reform to provide for greater financial equity and certainty after relationship breakdown along the lines identified by the Joint Select Committee.  The Government is also committed to improving compliance with parenting orders.

This Bill gives effect to a number of the Government’s election promises on families and family law as the initial step in the process to reform the Act to achieve that better equitable and fairness balance.

Availability of arbitration

The Bill will amend the Act to provide a workable scheme for both court referred and private arbitration as a cheaper, quicker and more accessible dispute resolution procedure than court litigation for the resolution of property disputes.  To ensure finality of resolution, provision is made for confinement of reviews of arbitral awards to questions of law.

Stronger enforcement of parenting orders

The Bill will also address an area of very significant concern for many parents and of general public disquiet - the enforcement of parenting orders.  The Joint Select Committee’s concern on this aspect led it to recommend a more detailed study of enforcement cases and the causes of the discontent with such cases.  That detailed study was undertaken by the Family Law Council, which reported in June 1998.  This Bill will basically adopt the 3 tiered approach to the enforcement of parenting orders recommended by the Council. 

The Bill will provide for -

·                 stage 1 - preventative measures, to improve communication between separated parents and educating parents about their respective responsibilities in relation to their children;

·                 stage 2 - remedial measures, to enable the parents to resolve issues of conflict about parenting; and

·                 stage 3 - sanctions, to ensure that, as a last resort, a court takes other action in relation to a parent who deliberately disregards a court order.

Stage 1 of the new three tier regime aims to assist people in their responsibilities in relation to their children by the provision of information and programs so that they have a greater understanding of their changed parental responsibilities. Stage 1 makes provision for standard clauses in parenting orders setting out the obligations the order creates and the consequences of failing to observe its terms.  In addition the provisions also require that parties be given information about the availability of programs which will assist them in understanding their changed parental responsibilities.

 

Stage 2 of the new compliance regime directs people to a post-separation parenting program that aims to address the real reason for non-compliance.  The provisions 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. Under the regime the parties are required to attend the provider of a program to enable the making of 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.

 

The court will have the 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. The court will also have an option to adjourn the contravention proceedings to allow for either party to seek a further parenting order.  Before the court grants such an adjournment it must consider a range of factors.

 

Stage 3 of the compliance regime provides that where there has been a serious contravention of a parenting order, the court should take action.  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.  The actions 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.

 

The Bill also makes provision 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.  The Bill also makes it clear that the new regime will apply to all contraventions that occur after the Bill commences that have not been dealt with under the current provisions.

 

Further, the Bill makes it clear 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 .

 

To improve the practical operation of the new Federal Magistrates Service the Bill empowers the Family Court and the Federal Magistrates Service to vary or discharge each other’s community service orders.

Binding financial agreements

Currently, under the Act, people can make “pre-nuptial” and “post-nuptial” settlements about their property.  In recent years the use of these has been limited because they are not binding and the court is able to exercise its discretion over any property with which these settlements deal.  This was one of the major problems identified by the Joint Select Committee and in a number of other reviews of the existing law about family law property. 

The Bill will make provision for financial agreements dealing with all or any of the parties’ property to be made before or during marriage or on marriage breakdown, setting out how such property is to be divided.  People will be encouraged, but not required, to make financial agreements.  For these agreements to be binding, each party will be required to obtain independent legal advice as to the legal effect of the agreement before concluding their agreement. 

Because parties will have obtained prior advice, the court will only be able to set aside an agreement in certain limited circumstances, for example if it were obtained by fraud, including failure to disclose material assets, duress or undue influence that would make it unfair to give effect to the agreement.  The grounds for setting aside include all common law and equitable grounds, which includes, for example, that a party engaged in unconscionable conduct in obtaining the agreement.  These grounds are modelled upon those set out in existing paragraph 87(8)(c).  A court will also be able to set an agreement aside where there is a material change in circumstances relating to the care, welfare and development of a child that would make it unfair to give effect to the agreement.

The Bill provides for the determination by the court of issues of the validity, enforceability and effect of binding financial agreements.  Existing subsection 87(11) makes provision for proceedings on the validity, enforceability and effect of an approved maintenance agreement to be determined according to the principles of law and equity, and similar provision will 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.

The Bill provides protection for 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.

Other miscellaneous amendments

Finally, the Bill will make a number of other amendments to the Act designed to:

·                 assist the orderly functioning of the court, to facilitate transfers of proceedings between courts;

·                 ensure that the location and recovery provisions of the Act apply to international child abduction cases;

·                 limit the application of the separate representative provisions in international child abduction cases;

·                 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

·                 provide the court with a broader range of powers to make Rules of Court in enforcing orders about property and money. 

 

In addition, the Bill will:

·                 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 ; and

·                 effect various technical and drafting changes.

FINANCIAL IMPACT STATEMENT

There may be increased Government expenditure as a result of increased use of community service orders for breach of parenting orders.

Community services orders have been available as a punitive sanction in all States and Territories, except New South Wales, since 1990.  Agreements entered into at that time provided for the Commonwealth to pay to the States and Territories a fee in respect of each person who participated in a community services order program by virtue of an order under the Act.  At that time, budgetary allocation provided funds for this purpose.  However, as the funds were not used, because community service orders were not made, the funds were withdrawn.

New funding arrangements will need to be put in place to reimburse the States and Territories for the use of their community service order programs.

The volume of contested property matters in the Family Court should be reduced, with the use of binding financial agreements and private arbitration to resolve disputes about property distribution.  This should result in some savings in the Family Court’s operational costs, however there is insufficient data available to enable any estimates of possible savings to be made.

REGULATION IMPACT ON BUSINESS

The impact on business arises from the amendments in Schedule 2, which deal with binding financial agreements.

The impact on business will be low.

People will be able to make financial agreements about their property, either before, during or after marriage.  For the agreements to be binding each party will be required to independent legal advice as to the consequences of the agreement.

The workload of legal advisers will increase, as they respond to requests for independent advice from people who wish to enter binding financial agreements about their property.  However, it is not possible to estimate the extent of the increased workload of legal advisers.

Parties will incur costs in reaching the agreement, as they would generally have to pay for the services of a legal adviser.  However, this will be offset by the fact that, in most cases, people will not incur the considerable expenses associated with litigation about property settlements.



REGULATION IMPACT STATEMENT

A Regulation Impact Statement is provided for Schedule 2, which deals with binding financial agreements.

Problem Identification

Part VIII of the Act deals with property, spousal maintenance and maintenance agreements and has remained basically unaltered since commencement, in 1976.  Since then, the family unit and its social context have changed significantly.  Importantly, the increased workforce participation by women before and during marriage has meant that marriage is becoming increasingly recognised as an economic partnership as well as a social relationship.  As a result of these changes, the Act has ‘fallen behind’ in recognising prevailing community attitudes towards marriage.

Specification of the desired objective

The objectives of the amendments are to encourage people to agree about the distribution of their matrimonial property and thus give them greater control over their own affairs, in the event of marital breakdown.

Identification of options

The three options for consideration are:

•        Option 1 :

maintain the status quo;

•        Option 2 :

introduce reforms to provide for the making of financial agreements between the parties, but not require that the parties obtain independent legal advice in order for the agreements to be binding; and

•        Option 3 :

introduce reforms to provide for the making of financial agreements between parties, but for the agreements to be binding each party will be required to obtain independent legal advice as to the consequences of the agreement.

Option 1 -- maintain the status quo

This would involve no change to the current arrangements.

Option 2 - introduce reforms to provide for the making of financial agreements between the parties, but not require that the parties obtain independent legal advice in order for the agreements to be binding

Under this option, parties would be encouraged to make financial agreements, either before or during the marriage or after separation.  These financial agreements would enable the parties to make whatever arrangements they wished about their property.  Parties would not be required to obtain independent legal advice before entering into such agreements, and the agreements would be binding.

Option 3 - introduce reforms to provide for the making of financial agreements between parties, but for the agreements to be binding each party will be required to obtain independent legal advice as to the consequences of the agreement

Under this option, parties would be encouraged to make financial agreements, either before or during the marriage or after separation.  These financial agreements would enable the parties to make whatever arrangements they wished about their property.  In order for the agreements to be binding, parties would be required to obtain independent legal advice before entering into such agreements

Assessment of Impacts (Costs And Benefits) of Each Option

Impact group identification

The groups likely to be affected by the reforms include:

•           legal advisers;

•           married and separating couples; and

•           the Family Court.

Option 1 - maintain the status quo

Legal advisers

This option would have no effect on legal advisers.

Married and separating couples

Under the current arrangements, people can make “pre-nuptial” and “post-nuptial” settlements about their property, but in recent years the use of these has been limited because they are not binding.  The court is still able to exercise its discretion over any property with which these settlements deal.  This has been one of the major problems that has been identified in a number of reviews of the existing law about property. 

Under this option, parties would not be able to take control of their financial affairs and make binding financial arrangements about their property.

The Family Court

This option would have no effect on the Family Court.

Option 2 - introduce reforms to provide for the making of financial agreements between the parties, but not require that the parties obtain independent legal advice in order for the agreements to be binding

Legal advisers

This option may have some effect on legal advisers if parties who have made a binding financial agreement, without prior legal advice, then wish to try and break that agreement.  However, it is not possible to estimate the extent, if any, of the increased workload of legal advisers.

Separating couples

This option would encourage people to make financial agreements, would enable parties to take control of their financial affairs and allow them to make whatever arrangements they wished about their property.  Parties would not need to incur considerable expense for costly legal proceedings and the current delay in finalising financial matters between the parties would be minimised.  Nor would parties necessarily incur any expense in reaching the agreement, as they would not be required to obtain legal advice prior to entering the agreement.

However, there is a significant risk that if people are not required to have separate, independent advice, prior to entering the agreement, they may not be aware of the consequences of the agreement.

The Family Court

The volume of contested property matters in the Family Court should be reduced, if agreements become the standard way of finalising property arrangements between the parties.  In this event, the current delays in finalising property matters in the Family Court should be reduced.  There may also be some savings in the Family Court’s operational costs, however there is insufficient data available to enable any estimates of possible savings to be made.

Option 3 - introduce reforms to provide for the making of financial agreements between parties, but for the agreements to be binding each party will be required to obtain independent legal advice as to the consequences of the agreement

Legal advisers

Under this option, the workload of legal advisers would be increased, as they respond to requests for independent advice from people who wish to enter binding financial agreements about their property.  However, it is not possible to estimate the extent of the increased workload of legal advisers.

Separating couples

As with option 2, this option would encourage people to make financial agreements, would enable parties to take control of their financial affairs and allow them to make whatever arrangements they wished about their property.  Parties would not need to incur considerable expense for costly legal proceedings and the current delay in finalising financial matters between the parties would be minimised.

Both parties would be required, prior to entering the agreement, to have separate, independent legal advice, the provision of which is certified on the agreement.  Both parties to the agreement will retain an original of the agreement, which will be able to be used as evidence of the agreement in the case of a dispute as to the existence, or content, of the agreement.

Parties would incur costs in reaching the agreement, as they would generally have to pay for the services of a legal adviser.

However, this would be offset by the fact that people will be fully aware of the legal effect of any agreement they are thinking of entering into, and not unknowingly enter an agreement that is not in their best interests.  Such costs would be offset by the fact that people will not incur the considerable expenses associated with litigation about property settlements.

The Family Court

As with option 2, the volume of contested property matters in the Family Court should be reduced, if agreements become the standard way of finalising property arrangements between the parties.  In this event, the current delays in finalising property matters in the Family Court should be reduced.  There may also be some savings in the Family Court’s operational costs, however there is insufficient data available to enable any estimates of possible savings to be made.

Consultation

The proposal for the introduction of binding financial agreements was developed in consultation with the Department of Prime Minister & Cabinet, the Department of Finance and Administration, the Treasury, the Department of Family and Community Services, the Department of Employment, Workplace Relations and Small Business and the Department of Agriculture, Fisheries and Forestry - Australia.

Conclusion and Recommended Option

Option 3 is the preferred option.

Option 3 encourages people to take control of their financial affairs by enabling them to make binding financial agreements about their property.  It also ensures that people are not able to make binding financial agreements that are not in their best interests, by requiring that independent legal advice is obtained before the agreement is entered into.

Any potential costs to parties arising from this option are likely to be outweighed by the benefits associated with ensuring that parties are aware of the legal effects of the agreement proposed and that it is in their best interests and the savings associated with no proceeding to litigate a dispute about property.

Implementation and Review

Amendments to the legislation would be required before the preferred option could be implemented.

It is proposed that the operation of the option finally implemented will be reviewed after an initial period (3 years) to determine what, if any, improvements to the arrangements are necessary or desirable.

CONSULTATION STATEMENT

The Family Court of Australia and the legal profession have been consulted on the draft Bill.

Broader public consultation was not undertaken because of the significant consultation on the issues covered in the Bill during the consultation and public hearings of the Joint Select Committee in 1991-92.



NOTES ON CLAUSES

Clause 1 - Short title

1.           This clause provides for the Act to be cited as the Family Law Amendment Act 2000.

Clause 2 - Commencement

2.                        Subclause 2(1) provides that generally the Act commences 28 days after it receives the Royal Assent.

 

3.           Subclause 2(1A) provides 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.

4.           Subclause 2(2) provides that Item 41 of Schedule 3 is taken to have commenced immediately after the commencement of section 26 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 .

5.           Item 41 of Schedule 3 corrects an error resulting from the commencement in 1988 of amendments to subsection 46(1), made by the Family Law Amendment Act 1987 (the “1987 Act”) and the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 (the “1988 Act”).  Subsection 46(1) provides for the transfer of proceedings to the Family Court from a court of summary jurisdiction in certain cases.  Unfortunately, an error in the timing of the Proclamations of provisions affecting section 46 resulted in subsection 46(1) becoming grammatically incorrect and not providing for the transfer of proceedings to the Family Court or to a Supreme Court in certain cases, as was clearly intended.

6.           For this reason, Item 41 is taken to have commenced as provided for in subclause 2(2).  The Bill includes a savings provision preserving the efficacy of any acts that may have been taken by parties to proceedings, based on the incorrect state of the sub-section, and decisions of courts exercising jurisdiction under subsection 46(1) affected by the error.

Clause 3 - Schedules

7.           This clause provides that each Act as specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule.



SCHEDULE 1 - Consequences of FAILURE TO COMPLY WITH ORDERS AND OTHER OBLIGATIONS

Family Law Act 1975

8.           Schedule 1 will:

•        insert into Part VII a new Division 13A - Consequences of failure to comply with orders, and other obligations, that affect children;

•        significantly amend Part XIIIA - Consequences of failure to comply with orders, and other obligations, that do not affect children;

•        insert Part XIIIB - Contempt of court; and

•        make other consequential amendments.

Item 1 - Paragraph 37A(1)(k)

9.           Existing paragraph 37A(1)(k) provides that Rules of Court may be made delegating to the Registrars the power to make orders for the enforcement of maintenance orders.  Item 1 repeals paragraph 37A(1)(k), as a consequence of item 9 that will insert section 109A to provide for a comprehensive power in the court to make Rules of Court relating to enforcement.

Item 2 - Section 60C (table item 6)

10.         Item 2 repeals existing table item 6 and substitutes a new table item 6 that is in similar terms but will also include a reference to the measures to promote the exercise of parental responsibility - stage 1 of the parenting regime.

Item 3 - Section 60C (after table item 13)

11.         Item 3 inserts a new reference in the table outlining the contents of Division 13A of Part VII, which makes provision for the second and third stages of the parenting regime.

Item 4 - After section 63D

12.         Item 4 inserts section 63DA, that 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. 

13.         In addition paragraph 63DA(1)(c) provides that the adviser is to identify programs that are available to assist a person to comply with the plan.

14.                    New subsection 63DA(2) enables the court to produce a document that sets out the availability of programs to assist people experiencing difficulties in complying with their parenting agreement.

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

15.         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.

Item 5 - After section 65A

16.         Item 5 inserts new section 65AA that sets out a statement of the policy in the 3 tier approach to be taken to promote the exercise of parental responsibility.  The details of the 3 tier approach are provided for by Subdivisions B and C of new Division 13A of Part VII, which is inserted by item 7.

Item 5A - At the end of Section 65D

 

17.         Item 5A provides that where an application for a parenting order is made after an adjournment of proceedings relating to a contravention of an order relating to children then the court to which the application is made must deal with the application as soon as practicable.  Paragraph (b) gives the court dealing with the application for a parenting order the power to dismiss the contravention proceedings where the court believes that to be appropriate. 

 

18.         The note to the item indicates that a person seeking a new parenting order following an adjournment of the contravention proceedings, may seek that order in either the Family Court or the Federal Magistrates Court.  Under section 33B of the Family Law Act 1975 (Family Law Act) either party may seek to have proceedings transferred to the Federal Magistrates Court.  There is a similar provision in section 39 of the Federal Magistrates Act 1999 providing for a transfer from that court to the Family Court.

Item 6 - After section 65D

19.         Item 6 inserts new section 65DA, which will provide for stage 1 of the parenting compliance regime.  Subsection 65DA(1) provides that the new section applies when the court makes a parenting order.

20.         Subsection 65DA(2) requires the court to include standard clauses in an order stating the obligations created by it and the consequences of contravening the order. 

 

21.         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 and use of remedial orders for the location and recovery of a child if the parenting order is contravened. 

22.         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.

23.         Subsection 65DA(5) allows the court to request a legal practitioner representing a party in proceedings to assist in the explanation of the matters referred to in subsections (2) and (3).

24.         Subsection 65DA(6) clarifies that where the court makes a request under subsection (5) to a legal practitioner, the legal practitioner is required to comply with the request.

25.         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 made26. 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 readily understood by the parties.

Item 6A - Paragraphs 65Q(1)(c) and (d)

27.         This is a technical consequential amendment, which 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.

Item 6B - Paragraphs 65U(1)(b) and (c)

28.         This is a technical consequential amendment, which 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.

Item 6C - Paragraphs 65V(1)(b) and (c)

29.         This is a technical consequential amendment, which 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.

Item 7 - After Division 13 of Part VII

30.         Item 7 inserts into Part VII new Division 13A - Consequences of failure to comply with orders, and other obligations that affect children.  The new Division results from a very detailed consideration, including broad community consultation, by the Family Law Council on alternative options for achieving substantially increased compliance with parenting orders, particularly contact orders. 

31.         Under the current law, in many cases, contact order compliance is seen by both parents as being optional.  Many contact parents make no attempt to undertake the ordered contact that is so vital to the proper well being and development of their child.  These parents take too lightly their parental responsibilities for their children.

32.         Of similar disquiet is the large number of residence parents who manoeuvre, with apparent impunity from any retribution, to remove the non-residence parent from the child’s life by preventing contact with the child.  They will do this even though the court has heard of their concerns during the proceedings on the making of the parenting but has still ordered contact because such contact is in the best interests of the child.

33.         Division 13A makes provision to ensure that non-compliance with parenting orders has serious consequences for any parent who does not comply with a parenting order.

Subdivision A - Preliminary

Section 70NB - Definitions

34.         Section 70NB defines a number of terms for the purposes of the new Division.  Of particular importance are the new definitions of ‘ appropriate post-separation parenting program’, ‘order under this Act affecting children’ and ‘post-separation parenting program’.  The first definition clarifies that the term relates to a program available within a reasonable distance from a person's place of residence or place of work. The definition of ‘order under this Act affecting children’ identifies the range of provisions of the Act that enable the court to make various orders affecting children.  ‘Post-separation parenting program’ defines the post-separation parenting programs that the court will be able to order a person to attend and the nature of those programs.

Section 70NBA - Application of Division

35.         This amendment adds a new application provision to the new Division 13A of Part VII that deals with sanctions for the breach of parenting orders.  The application provision is intended to make it clear that the new three stage enforcement regime for orders affecting children will apply to all contraventions of orders affecting children whether committed before or after the new Division commences.  The new Division will not apply, however, to contraventions that have already been dealt with by a court under the provisions in Part XIIIA. 

Section 70NC - Meaning of contravened an order

36.         Section 70NC defines the meaning of contravened an order, with the emphasis being on the intent of the parent in failing to comply with a parenting order, or that of another person who prevents a parent from complying with, or assists a parent to contravene, a parenting order.

Section 70ND - Requirements taken to be included in certain orders

37.         Section 70ND reinforces the application of the statements of general obligations for compliance with the terms of the orders provided in existing sections 65M, 65N and 65P in respect of residence orders, contact orders and specific issues orders respectively.

Section 70NE - Meaning of reasonable excuse for contravening an order

38.         Section 70NE incorporates, with only necessary drafting changes, existing subsections 112AC(3), (4) and (5) into Division 13A, as a consequence of the establishment of a separate sanctions regime for children’s matters and their removal from existing Part XIIIA.

39.         Subsection 70NE(1A) provides another factor to be considered on the meaning of ‘reasonable excuse for contravening an order’.  The 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 is 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).

40.         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.

Section 70NEA - Standard of proof of reasonable excuse

41.         Section 70NEA, 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.

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

Section 70NF - Application of Subdivision

42.         Subsection 70NF(1) provides that Stage 2 of the parenting compliance regime applies where a person contravenes a parenting order without reasonable excuse and:

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

•        it is a second or subsequent contravention but the court considers it is more appropriate to deal with the person under stage 2 of the parenting compliance regime.   The provision makes it clear that the onus of proving that there is a reasonable excuse lies with the respondent.

 

43.         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 and the terms of the parenting order but, by way of example, could include the kidnapping of a child or harassment despite repeated warnings.  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.

Section 70NG - Powers of court

44.         Section 70NG states the powers of the court under stage 2 of the parenting compliance regime.  In circumstances where stage 2 applies, subsection 70NG(1) provides that the court may order the contravening party and, if appropriate, another party to the enforcement proceedings, to attend a specified appropriate 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 an appropriate post-separation parenting program, make an order to compensate for any contact lost as a result of the contravention.

45.         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. 

46.         Also at this stage of the compliance regime for orders affecting children, the court dealing with proceedings relating to the alleged contravention may adjourn proceedings to allow either or both parties to apply for a further parenting order.  Any order so made may discharge, vary or suspend the primary order.  The reason for adding this procedure is because the contravention may have come about because the parenting order was not the right order.  In these circumstances it is better to put the right order in place.

 

47.         Before the court makes a decision to adjourn proceedings the court must consider a range of matters set out in subsection 1A.  Those matters include whether the orders were made by consent; whether the parties were legally represented when the order was made; and how long it has been since the original order was made before the contravention proceedings were instituted.  The longer that the original orders were in place then the less likely it is that an adjournment would be granted.  

 

48.         Paragraph (1A)(d) provides that the court must consider any other matter that it thinks is relevant to the making of a decision to adjourn.  Such matters would cover a range of issues but would include whether there have been any allegations that the contravention of the order was caused due to concerns about domestic violence or that there are allegations of abuse involving children. 

49.         Subsection 70NG(3) provides for the notification by the court to the program provider of the details of the court order.

 

Section 70NH - Duties of provider of program

 

50.         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 subsection 70NH(1), notify the court of that assessment.

 

51.         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, 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.

 

Section 70NI - Evidence

 

52.         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.

 

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

 

53.         Section 70NIA provides that where a person who has been ordered 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.

 

Section 70NIB - List of programs

 

54.         This section provides that the Attorney-General is to compile, and publish in such a manner as the Attorney-General determines, before the start of each calendar year, a list of the post-separation parenting programs that will be available.  The section also provides the Attorney-General with the capacity to amend a list during a calendar year and require the Attorney-General to publish such amended list. 

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

Section 70NJ -Powers of court

55.         This section sets out the powers of a court under stage 3 of the parenting compliance regime.

56.         Subsection 70NJ(1) sets out the circumstances under which the court must make an order under Stage 3 of the parenting compliance regime.  The court must make such an order where a person contravenes a parenting order without reasonable excuse and:

 

•        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

 

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

 

57.         Subsection 70NJ(2) sets out the circumstances in which stage 3 of the parenting compliance regime will not apply.  The subsection allows the court to determine that, although a person 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.

 

58.         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).

 

59.         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.

60.         Subsection 70NJ(3) sets out the range of sanctions that may be imposed on a person, namely:

·                 a community service order;

·                 an order requiring the person to enter into a bond;

·                 an order varying the order contravened;

·                 a fine; or

·                 a sentence of imprisonment.

61.         Subsection 70NJ(4) provides that where a court varies or discharges a community service order it may give any direction as to the effect of the variation or discharge as it thinks appropriate.

62.         Subsection 70NJ(5) sets out matters that must be taken into account when making an order to vary the existing parenting order that has been contravened.  In such cases, subsection 70NJ(5) specifically incorporates the paramountcy of the best interests of the child and this is the only provision in this Division where that paramountcy principle operates.  Subsection 70NJ(5) also specifies the other matters relating to the operation of the earlier segments of the three tiered regime that the court must take into account to the extent that each or any of those considerations are present in the particular case.

63.         Subsection 70NJ(6) provides that a sanction of imprisonment may only be imposed for the non payment of child maintenance where the contravention was intentional or fraudulent. Under the present law, imprisonment for non payment of maintenance is not available.  The Joint Select Committee in 1992 recommended that imprisonment should be an option and this amendment will give effect to recommendation 67 of its report

64.         Subsection 70NJ(6A) 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 .

65.         Subsection 70NJ(7) provides that, where the court imposes a punitive sanction on a person, the court will have the capacity to delay the commencement of the undertaking of that sanction until the expiry of a specified period or at the occurrence of a specified event.

66.         Subsection 70NJ(8) clarifies that at the time it makes an order imposing a sanction, the court may also make any other orders it considers necessary to ensure future compliance with the parenting order that was contravened.

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

67.         Section 70NK is based on existing section 112AG of Part XIIIA, with some minor consequential drafting changes.  It also relaxes the restriction of the alternative sentencing options to a community services order only.  There has been minimal use of the existing provisions.  It is hoped that community service orders will be used more frequently as part of the new parenting compliance regime.

68.         Subsection 70NK(1) provides that the section applies if there is a system of community service orders available in a particular jurisdiction and there is an agreement with that State or Territory that the Commonwealth can use the system for the purposes of family law sanctions under Division 13A of Part VII.

69.         Subsection 70NK(2) provides that the maximum duration of a community service order that can be imposed is the maximum period provided by the State or Territory in which the order is made.  Subsection 70NK(2) also provides that a community service order has a maximum life of 2 years.

 

70.         Subsection 70NK(2A) defines community service order for the purposes of the section.  The definition contains most of the alternative sentencing options 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 a failure to comply with parenting orders.

71.         Subsection 70NK(3) provides that the provisions of the laws of the State or Territory in which the order is to be made apply in relation to the order, subject to any modifications specified in the regulations.

72.         Subsection 70NK(4) provides that a court must explain the purpose and effect of any proposed community service order and the consequences that will flow from failing to comply with the order and, if the proposed order allows for revocation and variation, that the proposed order allows this.

73.         Subsection 70NK(5) sets out the definitions of a number of terms used in the section.

Section 70NL - Variation and discharge of community service orders

74.         Section 70NL replicates existing section 112AK, with some minor consequential drafting changes.  Paragraph 70NL(a) gives the Family Court and the Federal Magistrates Service the capacity to vary or discharge each other’s community service orders.  This 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.

Section 70NM - Bonds

75.         Section 70NM replicates existing section 112AF, with some minor consequential drafting changes.  It also changes the term “recognizances” to “bonds”, in accordance with a recommendation by the Family Law Council in its report Child Contact Orders: Enforcement and Penalties , as the term “bond” is more readily understood in the community.

Section 70NN - Procedure for enforcing community service orders or bonds

76.         Existing section 112AH sets out the procedure for enforcing all the alternative sentencing options that are listed in existing subsection 112AG(3).  Section 70NN replicates existing section 112AH, but it only applies to community service orders and bonds, as the other alternative sentencing options will not be available.

Section 70NO - Sentences of imprisonment

77.         Section 70NO replicates existing section 112AE, with some minor consequential drafting changes.

78.         Section 70NO also includes subsection 70NO(8) to provide that where a person serves a term of imprisonment for failure to pay child maintenance such term of imprisonment does not reduce the child maintenance liability of the maintenance debtor.

79.         Section 70NO includes, in subsection 70NO(9), a saving provision to preserve any arrangements with States and Territories made under existing section 112AN.

Section 70NP - Relationship between Subdivision and other laws

80.         Section 70NP replicates existing section 112AM, with some minor consequential drafting changes.

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

81.         Section 70NQ replicates existing section 112AN, with some minor consequential drafting changes.

82.         Subsection 70NQ(2) also contains a new definition of officer to clarify that the term includes the holder of a judicial office.

Section 70NR - Subdivision does not limit operation of section 105

83.         Section 70NR replicates existing section 112AO, with some minor consequential drafting changes.

Item 8 - Section 107

84.         Existing section 107 prohibits a person being imprisoned for failure to pay an order for money under a matrimonial cause or in proceedings under Part VII relating to children.

85.         Item 8, which replaces existing section 107, continues that prohibition in respect of a matrimonial cause but not in respect of sanctions for failure to comply with an order under Division 13A of Part VII or under Part XIIIA.

Item 9 - After section 109

86.         Item 9 inserts section 109A that provides that Rules of Court can be made to deal with the enforcement of money and property orders made under the Family Law Act, the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989.

87.         Subsection 109A(2) provides for the types of matters that can be covered by the Rules of Court.

88.         Subsection 109A(3) specifies the types of enforcement actions that can be covered by the Rules of Court.

89.         Subsection 109A(4) provides that regardless of how long an amount has been unpaid, enforcement action will be able to be taken in respect of either the whole or part of the amount.

90.         Subsection 109A(5) defines property for the purposes of this section.

Item 10 - Heading to Part XIIIA

91.         Item 10 is self explanatory.  It is a consequence of confining the operation of Part XIIIA to sanctions for failing to comply with court orders other than orders in respect of children.

Item 11 - Section 112AA

92.         Item 11 inserts a new definition of applicable Rules of Court as a consequence of the establishment of the Federal Magistrates Court.

Item 12 - Section 112AA (definition of applied provisions )

93.         Item 12 corrects a reference to a paragraph, as a consequence of the re-ordering of the paragraphs in subsection 112AD(2).

Item 13 - Section 112AA (definition of contact order )

94.         Item 13 repeals the definition, as a consequence of sanctions for failing to comply with court orders in respect of children now being contained in Division 13A of Part VII.

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

95.         Item 14 repeals the definition, as a consequence of sanctions for failing to comply with court orders in respect of children now contained in Division 13A of Part VII.

Item 15 - Section 112AA

96.         Item 15 inserts a new definition of maintenance order to clarify that references in Part XIIIA to maintenance orders do not include sanctions for failing to comply with court orders in respect of children, provision for which is now contained in Division 13A of Part VII.

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

97.         Item 16 repeals the current definition and substitutes a new definition, as a consequence of sanctions for failing to comply with court orders in respect of children now being contained in Division 13A of Part VII.

Item 17 - Subsection 112AB(2)

98.         Item 17 repeals the subsection, as a consequence of sanctions for failing to comply with court orders in respect of children now being contained in Division 13A of Part VII.

Item 18 - Subsection 112AC(1)

99.         Item 18 makes a consequential amendment to references to certain subsections flowing from the repeal of those subsections by item 19.

Item 19 - Subsections 112AC(3), (4) and (5)

100.       Item 19 repeals the subsections, as a consequence of sanctions for failing to comply with court orders in respect of children now contained in Division 13A of Part VII.

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

101.       Item 20 repeals existing subsections 112AD(1), (1A), (2) and (2A) and substitutes new subsections, as a consequence of sanctions for failing to comply with court orders in respect of children now contained in Division 13A of Part VII.

102.       Subsection 112AD(1) redrafts the current discretion in the court to impose a sanction for failing to comply with a court order and provides that the court may impose a sanction where the court is satisfied that there has been a failure to comply with a court order without reasonable excuse.

103.       Subsection 112AD(1A) clarifies that a penalty may be imposed for a failure to comply with a maintenance order even if the maintenance has been paid after the application for the sanction was made but before the sanction hearing takes place.

104.       Subsection 112AD(2) establishes the range of sanctions that may be imposed on a person.  All of these sanctions are currently available in existing Part XIIIA.

105.       Subsection 112AD(2A) provides that a sanction of imprisonment may only be imposed for the non payment of maintenance where the contravention was intentional or fraudulent.  As was explained in relation to subsection 70NJ(5), this provision results from acceptance of a recommendation of the Joint Select Committee report of 1992.

Item 21 - Subsections 112AD(3) and (4)

106.       Item 21 omits references to subsection (1A), as a consequence of sanctions for failing to comply with court orders in respect of children now contained in Division 13A of Part VII.

Item 22 - Subsection 112AD(5)

107.       Item 22 repeals subsection 112AD(5), as a consequence of sanctions for failing to comply with court orders in respect of children now contained in Division 13A of Part VII.

Item 23 - Subsections 112AE(1), (2) and (3)

108.       Item 23 corrects a reference in each of the subsections, as a consequence of the re-ordering of the paragraphs in subsection 112AD(2).

Item 24 - Subsections 112AE(5) and (6)

109.       Existing subsection 112AE(5) provides for the release of a person on a recognizance, either immediately or after having served part of a specified term of imprisonment.  Item 21 amends the subsection to remove the capacity to release a person on a bond before the term of imprisonment commences.

110.       Item 24 replaces, in existing subsection 112AE(6), “recognizance” with  “bond”.

Item 25 - At the end of section 112AE

111.       Item 25 inserts a new subsection 112AE(8) to provide that where a person serves a term of imprisonment for failure to pay maintenance, other than child maintenance, such term of imprisonment does not reduce the maintenance liability of the maintenance debtor.

112.       The maintenance that might be applicable in these matters is spousal maintenance or maintenance for a child over the age of 18 years where that child is undertaking education or where that child has a mental or physical disability.

Item 26 - Section 112AF

113.       Item 26 replicates existing section 112AF, with minor drafting changes, as a consequence of the change from “recognizance” to “bond”.

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

114.       Item 27 corrects a reference in each of the subsections, as a consequence of the re-ordering of the paragraphs in subsection 112AD(2).

Item 28 - Subsection 112AH(1)

115.       Item 28 corrects a reference, as a consequence of the re-ordering of the paragraphs in subsection 112AD(2).

Item 29 - Subsections 112AH (5) and (6)

116.       Item 29 changes “recognizances” to “bonds”, wherever occurring.

Item 30 - Subsection 112AM(5)

117.       Item 30 repeals subsection 112AM(5), as a consequence of sanctions for failing to comply with court orders in respect of children now contained in Division 13A of Part VII.

Item 31 - Saving

118.       Item 31 is a saving provision and ensures that any order imposing a sanction under the existing provisions of Part XIIIA continues to operate according to its terms, despite the amendments contained in this Bill.

Item 32 - Heading to Division 3 of Part XIIIA

119.       Item 32 repeals the existing heading to Division 3 - Contempt of Part XIIIA and substitutes a new heading to Part XIIIB - Contempt of court.

Item 33 - Subsection 112AP(1)

120.       Item 33 makes a drafting change to existing subsection 112AP(1), consequential on Item 34.

Item 34 - After subsection 112AP(1)

121.       Existing section 112AP provides for contempt of court.  Item 34 inserts a new subsection 112AP(1A) that provides that where a person is to be prosecuted for contempt for non-payment of a maintenance order, and prior to the hearing of the matter the person complies with the order, then the prosecution for contempt cannot continue.

Item 35 - At the end of section 112AP

122.       Item 35 adds new subsections 112AP(8) and (9).

123.       Subsection 112AP(8) provides that, to avoid any doubt, where a person is imprisoned as a result of a contempt arising out of a failure to pay maintenance, the imprisonment does not negate the liability to pay the maintenance or reduce it in any way.

124.       Subsection 112AP(9) defines “order under this Act” so that the provisions in Part XIIIB apply to sanctions made for breaches of orders relating both to children and to other orders under the Act.

Item 36 - Paragraph 123(1)(p)

125.       Item 36 repeals existing paragraph 123(1)(p), which provides for Rules of Court to be made about enforcement and execution of decrees.  Item 9 in Schedule 1 inserts section 109A - Rules of Court that will provide for this, and it is not necessary therefore to include reference to such provision in the general rule making powers section of the Act.

Item 37 - Paragraph 123(1)(u)

126.       Item 37 changes a specific reference to an amount of a fine to a reference to penalty units equivalent to that amount, in keeping with modern drafting practice.



SCHEDULE 2 - FINANCIAL AGREEMENTS

Family Law Act 1975

Item 1 - Subsection 4(1)

127.       Item 1 inserts a definition of financial agreement , as provided for in sections 90B, 90C and 90D.  Item 1 also clarifies that the term does not apply to an ante-nuptial or post-nuptial settlement under section 85A of Part VIII of the Act.

Item 2 - Subsection 4(1) (after paragraph (ea) of the definition of matrimonial cause )

128.       Item 2 inserts paragraph (eaa) into the definition of matrimonial cause to provide that a matrimonial cause includes proceedings between the parties with respect to a financial agreement.  This will ensure that the court has jurisdiction to hear disputes about financial agreements.

Item 3 - Subsection 4(1) (at the end of paragraphs (a), (b), (c), (ca), (d), (e) and (ea) of the definition of matrimonial cause )

129.       Item 3 corrects a minor drafting error, by adding “or” to the end of each of the paragraphs.

Item 4 - After section 71

130.       Item 4 inserts section 71A in existing Part VIII, to provide that the Part does not apply to financial matters, which are defined in section 4, or financial resources to which a financial agreement that is binding on the parties to the agreement, made under Part VIIIA, applies.

Item 5 - At the end of subsection 75(2)

131.       Existing subsection 75(2) sets out the matters that can be taken into account when making a spousal maintenance order.  Under subsection 79(4), such matters may also be taken into account in making a property order.

132.       Item 5 adds paragraph 75(2)(p), to clarify that in making such orders, in respect of property or financial resources not covered by a binding financial agreement between the parties, the court may take into account the terms of any binding financial agreement.

Item 6 - Paragraph 79A(1)(a)

133.       Existing paragraph 79A(1)(a) sets out a number of circumstances in which a property order may be set aside.  Item 6 clarifies that  “suppression of evidence” includes the failure to disclose relevant information.

Item 6 - Paragraph 79A(1)(a)

134.       Item 6A of Schedule 2 adds subsection 85A(3).  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.

Item 7 - Before section 86

135.       Item 7 inserts section 86A in existing Part VIII, to provide that a maintenance agreement made, under section 86, after the new provisions regarding financial agreements commence will not have any effect and will not be enforceable.  The purpose of this is to ensure that any agreements that people wish to make about their property and financial resources will be made under the new provisions about financial agreements, which are potentially binding, rather than under the existing provisions for maintenance agreements.

Item 8 -  Before subsection 86(1)

136.       Item 8 inserts subsection 86(1A), to provide that a maintenance agreement made, under subsection 86, will not be able to be registered after the commencement of the new regime dealing with financial agreements.  This will not preclude the registration, under section 86, of any agreement made under that section prior to the commencement of Part VIIIA.  The effect of this amendment is the same as that for section 86A.

Item 9 - After subsection 87(1)

137.       Existing subsection 87(1) provides that a maintenance agreement may make provision to the effect that the agreement operates in substitution for any rights of the parties under existing Part VIII of the Act.  Existing subsection 87(2) provides that the court must approve such an agreement to make it enforceable.

138.       Item 9 inserts subsection 87(1A) to provide that, after the commencement of the subsection, it will not be possible to make such maintenance agreements.  This is because parties will be able to enter into binding financial agreements, under Part VIIIA, in respect of any of their property or financial resources.  The court will still be able to approve, under section 87(2), a maintenance agreement made prior to the commencement of Part VIIIA.

Item 10 - After Part VIII

139.       Item 10 inserts new Part VIIIA - Financial agreements.  The Part provides for financial agreements, dealing with some or all of the property, maintenance and financial resources of the parties, to be made and will provide for the mechanism to make such agreements binding.

Section 90A - Definitions

140.       Section 90A is self-explanatory, providing definitions of “ dealt with ” and “ marriage ” for the purposes of Part VIIIA.

Section 90B - Financial agreements before marriage

141.       Subsection 90B(1) provides that people may make a written agreement, at the time they are contemplating marriage, with respect to any of the matters outlined in subsection 90B(2). Paragraph 90B(1)(aa) reinforces 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.  This should not be interpreted so as to limit the operation of subsection 90B(4), which permits the making of a subsequent financial agreement, and the termination of an existing financial agreement, within the same agreement.  Similar provision has been made in respect of agreements under sections 90C and 90D below.

142.       Subsection 90B(2) provides that people will be able to make a financial agreement about how any property or financial resources owned by either or both of them is to be dealt with on marriage breakdown.  People are able to make a financial agreement about the maintenance of either of them, either during the marriage, after the dissolution of the marriage, or both.  Paragraph 90B(2)(a) clarifies 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.  Similar provision has been made in respect of agreements under sections 90C and 90D below.

 

143.       Subsection 90B(3) provides that a financial agreement may also deal with matters other than those outlined in subsection 90B(2).  These other matters must be incidental, or ancillary, to the matters specified in the subsections. Similar provision has been made in respect of agreements under sections 90C and 90D below.

144.       As mentioned above, subsection 90B(4) provides that a financial agreement made under subsection 90B(1) may terminate an existing financial agreement.

Section 90C - Financial agreements during marriage

145.       Section 90C provides for the making of financial agreements during marriage, in the same terms and about the same matters as financial agreements before marriage.  The terms of the section mirror the relevant provisions of section 90B.

146.       In addition, subsection 90C(4) provides that as well as terminating a financial agreement made under subsection 90C(1), a financial agreement made under subsection 90C(1) may also terminate a financial agreement made before marriage, under subsection 90B(1).

Section 90D - Financial agreements after dissolution of marriage

147.       Section 90D provides for the making of financial agreements after a decree nisi dissolving a marriage is made, in the same terms and about the same matters as financial agreements made before or during marriage. The terms of the section mirror the relevant provisions of section 90B.

148.       In addition, subsection 90D(4) provides that as well as terminating a financial agreement made under subsection 90D(1), a financial agreement made under subsection 90D(1) may also terminate a financial agreement made before marriage, under subsection 90B(1), or a financial agreement made during marriage, under subsection 90C(1).

Section 90E - Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

149.       Subsection 90E provides, in similar terms to existing section 66R in respect of maintenance of children and section 87A in respect of maintenance of a party, that if a provision in a financial agreement deals with the maintenance of a party or a child or children, it will be void unless the provision specifies the person who is to be maintained and the amount or value of the maintenance to be provided. 

Section 90F - Certain provisions in agreements

150.       The purpose of section 90F is to ensure that people can not agree away their obligation to maintain the other party, with the effect of increasing the burden on the social security system. 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. The court will be permitted 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.

151.       Subsection 90F(2) clarifies that continuing to own property or financial resources will constitute “dealing” with that property or financial resources, for the purposes of binding financial agreements.

Section 90G - When financial agreements are binding

152.       Subsection 90G(1) provides that a financial agreement is binding on the parties to the agreement only if:

·                 the agreement is signed by both parties; and

·                 compulsory independent legal advice is obtained by each party to the agreement;

·                 the agreement contains a statement to the effect that each of the parties to the agreement has been provided with independent legal advice as to the effect of the agreement on their rights, whether at the time the advice was provided it was to the advantage of that party to make the agreement, whether or not at the time it was prudent for the party to make the agreement and whether or not at the time the provisions of the agreement were fair and reasonable;

·                 those who have provided the required advice have signed a certification to that effect; and

·                 the agreement has not been terminated or has not been set aside by a court; and

·                 after the agreement is signed, the original is given to one party and a copy is given to the other.

153.       All of these criteria will have to be met in order for a financial agreement to be binding.  If an agreement is binding, a court will not be able to deal with the matters with which the agreement deals.  If an agreement is not binding, a court will be able to deal with the matters with which the agreement deals.  A court will be able to deal with any property or financial resources of the parties that have not been dealt with by a binding financial agreement between them.

154.       Subsection 90G(2) provides that a court may make such orders for the enforcement of a binding financial agreement as it thinks necessary.

Section 90H - Effect of death of party to financial agreement

155.       Section 90H provides that a binding financial agreement will continue to operate despite the death of a party to the agreement.  It provides that the agreement will be binding on the legal personal representative of the deceased party, in similar terms to existing section 66U that provides for the circumstances in which a child maintenance order is binding on the legal personal representative of the deceased person.

Section 90J - Termination of financial agreement

156.       Subsection 90J(1) will provide that the parties to a financial agreement may terminate the agreement by including a provision terminating the existing agreement in a subsequent financial agreement, as provided for in subsections 90B(4), 90C(4) or 90D(4).  Alternatively, the parties may make a written termination agreement that has the effect of terminating an existing agreement, without making another financial agreement.

157.       Subsection 90J(2) provides that a termination agreement will be binding on the parties where it satisfies the same criteria, set out in paragraph 148 above, as are provided for making a financial agreement.

158.       Subsection 90J(3) ensures 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 subsection 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 subsection 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.

Section 90K - Circumstances in which court may set aside a financial agreement or termination agreement

159.       Section 90K provides for the circumstances in which a court may set aside a financial agreement or termination agreement.

160.       Subsection 90K(1) provides that a court will be able to set aside a financial agreement if the court is satisfied that:

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

·                 the agreement is void, voidable or unenforceable including whether the agreement is obtained by the unconscionable conduct of one of the parties.  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.  The inclusion of unconscionability as a separate ground is simply to make it clear that this ground is included within the grounds for setting aside an agreement.  Unconscionability will retain its ordinary meaning within the law of contract.  The provision is modelled upon the provisions of section 87(8)(c) of the Act and the Government expects it to be interpreted in a similar way (see for example the decision of the Full Court of the Family Court in Blackman v Blackman   (1998) FLA 92-791) ; or

·                 circumstances have arisen since the agreement was entered into that make it impracticable for the agreement, or part of it, to be carried out.

161.       In addition, a court will be able to set aside a financial agreement if the court is satisfied that a material change in circumstances relating to the care, welfare and development of a child of the marriage has occurred since the agreement was entered into, such that a party to the agreement would suffer hardship if the court does not set aside the agreement.  This 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.

162.       Subsection 90K(2) will provide a definition of when a person has caring responsibility for a child.

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

163.       Section 90KA provides 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.

Section 90L - Financial and other agreements etc. not liable to duty

164.       Section 90L provides, in similar terms to existing section 90, that agreements, deeds or any other instruments executed by a person in accordance with an order made under Part VIIIA are not subject to any duty or charge under a law of a State or a Territory or any law of the Commonwealth that applies in relation to a Territory.

Item 11  After subsection 105(2)

165.       This amendment makes it clear that the court’s ability to use its powers under the new section 90KA to enforce an agreement is not affected by the fact that financial agreements are not registered in any court.



SCHEDULE 3 - OTHER AMENDMENTS

A New Tax System (Family Assistance) Act 1999

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

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

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

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

166.       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

 

Item 1E - Section 5 (Definition of maintenance agreement)

 

167.       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

Item 1 - At the end of subsection 84(7)

168        Existing section 84 provides for the making of child support agreements in respect of the maintenance or support of a child under the Child Support (Assessment) Act 1989 .  Existing subsection 84(7) provides that a child support agreement can also be both a parenting plan or a maintenance agreement under the Family Law Act 1975 .

169.       Item 1 inserts paragraph 84(7)(c) that provides that a child support agreement can also be a financial agreement made under subsections 90C(1) or 90D(1) of the Family Law Act 1975 .

Item 2 - Paragraph 95(3)(b)

170.       This item removes a reference to Part XIIIA of the Family Law Act 1975 and inserts references to Division 13A of Part VII and Part XIIIB of the Family Law Act 1975 as a consequence of the amendments made by Schedule 1.

Item 3 - Subsection 100(2)

171.       Item 3 removes a reference to Part XIIIA of the Family Law Act 1975 and inserts references to Division 13A of Part VII and Part XIIIB of the Family Law Act 1975 as a consequence of the amendments made by Schedule 1.

Item 4 - After subsection 102(3)

172.       Existing section 102 provides for appeals from decisions made under the Child Support (Assessment) Act 1989. Item 4 of Schedule 3 of the Bill inserts 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 Family Law Act 1975 .  The additional subsections also reflect 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.

173.       Subsection 102(5) enables the court in dismissing an appeal to give its reasons for decision in short form where the court is of the opinion that the appeal does not raise any question of general principle.

174.       Subsection 102(6) provides that, in addition to a Full Court, a Judge of the Appeal Division of the Family Court, or any other single Judge if an Appeal Division Judge is not available, may deal with a range of procedural matters arising out of an appeal. These include the joining or removal of a party to the proceeding, the making of a consent order disposing of the appeal and any matter affecting the conduct of the appeal.

175.       Subsection 102(8) enables a single judge to determine procedural applications made in respect of an appeal under this section.

176.       Subsections 102(7) and (9) allow the court to make decisions under subsection 102(6) and (8) without an oral hearing in circumstances which will be set out in the standard Rules of Court. 

177.       Subsection 102(10) provides that no appeal lies from a decision under subsection 102(6) or (8).  This will mean that it will not be possible to appeal an interlocutory decision of a single Judge to the Full Court.

Item 4A - Paragraph 152(b)

Item 4B - Section 152

 

178.       These amendments include 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

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

179        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.

Item 5 - After subsection 107(2)

180.       Item 5 of Schedule 3 of the Bill inserts 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.  The additional subsections also reflect 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

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

181        Item 6 repeals the definition, as there will be no approval of arbitrators.  Instead, in order to perform an arbitration under the Act, a person will have to meet prescribed qualifications and experience criteria.

Item 7 - Subsection 4(1)

182.       Item 7 inserts a definition of arbitrator , in terms described above in item 6.  The regulations will provide for the Law Council of Australia to maintain a list of people who meet the criteria to perform arbitration under the Act.  Parties will be able to select an arbitrator from the list.

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

183.       Item 8 amends the definition of family and child mediation to clarify that such mediation must be conducted in accordance with the regulations.

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

184.       Existing paragraph (a) provides that a family and child mediator includes a person approved as a mediator under the regulations.  As there is no longer to be an approval process for individual mediators, as opposed to mediation organisations, this definition is not necessary.

185.       Item 9 repeals existing paragraph (a) of the definition and substitutes a new paragraph (a), which provides that the term ‘family and child mediator’ includes court personnel undertaking family and child mediation.

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

186.       Item 10 omits a reference to an arbitrator specified by the regulations, consequent upon items 6 and 7.

Item 11 - Paragraph 14E(c)

187.       Item 11 omits from the definition of primary dispute resolution methods, the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 12 - Subsection 19D(1)

188.       Item 12 omits the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 13 - Subsection 19D(2)

189.       Existing subsection 19D(2) provides that the court may make an order for arbitration with or without the consent of the parties.  Item 13 repeals existing subsection 19D(2) and substitutes a new subsection 19D(2), which will provide that a court may only make an order for arbitration with the consent of all the parties.

Item 14 - Subsection 19D(4)

190.       Item 14 omits the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 14A - Subsection 19D(5)

Item 14B - Subsection 19E(2)

 

191.       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 were 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 Family Law Act 1975 for establishing the registration process in respect of the enforcement of overseas custody and maintenance orders.

Item 15 - After section 19E

192.       Item 15 inserts section 19EA and section 19EB.

193.       Subsection 19EA(1) provides that at any time before making an arbitral award, the arbitrator may refer a question of law arising in the arbitration to a single Judge of the Family Court or the Family Court of a State for determination of that question.

194.       Subsection 19EA(2) provides that the arbitrator may make the referral on his or her own initiative or at the request of one or more of the parties to the arbitration.

195.       Subsection 19EA(3) provides that the arbitrator must not make an award until the question of law has been determined or the judge has found that no question of law arises.

196.       Section 19EB provides, in the same terms as section 19EA, for the referral by an arbitrator of a question of law to the Federal Magistrates Court.

Item 16 - Subsection 19F(1)

197.       Existing subsection 19F(1) provides for review, by a Full Court of the Family Court, of an award made in private arbitration only on a question of law.  Item 16 will extend this review to court-referred arbitration under existing section 19D and provide that such a review be undertaken by a single judge of a Family Court.  This will mean that the same review regime will apply to all arbitrations.

Item 17 - At the end of subsection 19F(1)

198.       Item 17 inserts a note explaining that there may be Rules of Court providing for the procedure for review of an arbitral award.

Item 18 - Subsection 19F(2)

199.       Item 18 removes the reference to the Full Court, consequent upon item 16.

Item 19 - Paragraph 19F(2)(b)

200.       Item 19 replaces the reference to “it” (meaning the Court) with a reference to “he or she” (meaning a judge), consequent upon item 16.

Item 20 - Application of amendments

201.       Item 20 provides that the amendments made by items 16, 18 and 19 apply in relation to applications for review made after the commencement of this item even if the arbitral award was made and registered before that time.

Item 21 - After section 19F

202.       Item 21 inserts section 19FA.  Section 19FA is in the same terms as the revised section 19F and will provide that the Federal Magistrates Court may also hear and determine reviews of arbitral awards on questions of law.

Item 22 - Section 19G

203.       Item 22 repeals existing section 19G, consequent upon the amendments made to section 19F by items 16, 18 and 19.

204.       Item 22 inserts a new section 19G, which will provide for the circumstances in which a Family Court or a Family Court of a State may set aside an arbitral award. These amendments reflect those made to section 90K about the setting aside of financial agreements.  These are based on existing subsection 87(8), which provides for the setting aside of court approved maintenance agreements. 

205.       In addition, section 19G provides for the setting aside of an arbitral award or agreement if 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.

206.       Item 22 inserts new section 19GA, in the same terms as section 19G.

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

207.       Item 23 inserts new section 19H.  Subsection 19H(1) provides that the arbitrator conducting an arbitration may charge the parties fees for conducting the arbitration.  Subsection 19H(2) provides that the arbitrator must provide written information about the fees before the commencement of the arbitration.

208.       Item 23 also inserts a note to explain that there may be Rules of Court or regulations relating to the costs of the arbitration and how they are taxed.

Item 24 - Application of amendment

209.       Item 24 provides that the amendment made by item 23 applies in relation to arbitrations that begin after the commencement of that item.

Item 25 - Section 19L

210.       Item 25 omits the reference to “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 26 - Section 19M

211.       Item 26 makes an amendment to existing section 19M, consequent upon items 6 and 7.

Item 27 - Section 19P

212.       Item 27 makes an amendment to existing section 19P, consequent upon item 9.

Item 28 - Subsection 19Q(3)

213.       Item 28 omits the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 29 - Subsection 22(2AC)

214.       Item 29 omits the reference to the number of judges who may be assigned to the Appeal Division and provides that the membership of that Division may be set by regulation.

Item 30 - At the end of subsection 26B(1)

215.       Existing subsection 26B(1) provides that the judges have the power to make Rules of Court delegating certain functions to Judicial Registrars.  Item 30 will enable the judges to make Rules of Court delegating to Judicial Registrars the power to make an order setting aside a registered arbitral award.

Item 30A - Subsection 26B(1A)

216.       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.

 

217.       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.  This item allows 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.

Item 31 - At the end of section 26B

218.       Item 31 inserts a note at the end of section 26B to give cross reference to the other sections that contain provision for rule making powers.

Item 31A - Subsection 33A(2)

219.       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.

 

220.       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.

 

221.       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.

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

222.       Item 32 corrects a drafting error by adding “or” to each of the listed limitations on the power to delegate functions to Registrars, in paragraphs 37A(2)(a) and (b), to clarify that the limitations operate independently.

Item 33 - At the end of subsection 37A(2)

223.       Item 33 adds paragraph 37A(2)(e), providing an additional limitation on the power to delegate functions to Registrars, which will preclude them making an order setting aside an registered arbitral award.

Item 34 - At the end of section 37A

224.       Item 34 inserts a note at the end of section 37A to give cross reference to the other sections that contain provision for rule making powers.

Item 35 - After paragraph 38N(1)(da)

225.       Existing subsection 38N(1) provides for the officers of the Court.  Item 35 inserts paragraph 38N(1)(db), which provides that the Director of Mediation is an officer of the Court.

Item 36 - Subsection 44(3)

226.       Existing subsection 44(3) provides for time restrictions on the institution of maintenance and property proceedings and provides that the court has a power to give leave for proceedings to be instituted after the expiration of the time restriction.  Item 36 enables both parties to consent to proceedings being instituted outside time, and in such circumstances the leave of the court will not be required.

Item 37 - At the end of subsection 44(3)

227.       Item 37 inserts a new sentence in subsection 44(3) to make it clear that a court may at any time grant leave to institute proceedings out of time, even if the proceedings have already commenced.

Item 38 - After subsection 44(3)

228.       Item 38 inserts subsection 44(3AA) to provide that, if proceedings are instituted with the consent of both parties, the court may dismiss the proceedings if it is satisfied that the consent was obtained by fraud or duress and that allowing the proceedings to continue would result in a miscarriage of justice.

Item 38A - After subsection 44(3A)

 

229.       Existing section 44 of the Act sets out the various times within which applications can be made to the court.  This amendment 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.

 

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

Item 39 - At the end of section 45

231.       Existing subsection 45(2) provides for the circumstances in which a court may transfer proceedings under the Act to another court having jurisdiction under the Act.

232.       Item 39 inserts subsections 45(3) and (4).  Subsection 45(3) will provide that such a transfer may be made on the application of any party to the proceedings.  Subsection 45(4) will provide that such a transfer may be made by the court on its own initiative if the transfer is from a Family Court of a State to a prescribed court of summary jurisdiction or vice versa.

Item 40 - Validation of past transfers

233.       Item 40 will, to avoid doubt, specifically validate any past transfers made under subsection 45(2).

Item 40A - Subsection 45A(8)

 

234.       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. 

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

Item 41 - Paragraph 46(1)(b)

236.       Item 41 corrects an error resulting from the commencement of amendments to subsection 46(1).

237.       Subsection 46(1) of the Act is intended to provide for the transfer of proceedings from a court of summary jurisdiction in certain cases.

238.       Amendments to the subsection were made by two different Acts in 1987 and 1988:

•        section 20 of the Family Law Amendment Act 1987   (the “1987 Act”) - which commenced operation by Proclamation on 1 April 1988; and

•        sections 26 and 44 of and the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988   (the “1988 Act”) - which commenced by Proclamation on 1 July 1988.

239.       The combined effect of these amendments should have been to provide that subsection 46(1) would state:

          Where proceedings are instituted in a court of summary jurisdiction in relation to property of a value exceeding $20,000 and the respondent, in answer to the application by which the proceedings are instituted, seeks an order different from that sought in the application:

·          the court shall, before proceeding to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to the Family Court or to the Supreme Court of a State or Territory; and

·          unless the parties consent to the court hearing and determining the proceedings—the court shall transfer the proceedings to the Family Court or to the Supreme Court of a State or Territory.

240.       For subsection 46(1) to operate effectively the amendments provided in the 1988 Act should have commenced operation before those contained in the 1987 Act.  Unfortunately, the actual order of the Proclamations commencing the various amendments produced an absurd result that has only recently come to attention.   The current sub-section is grammatically incorrect.  More importantly, it does not provide for the transfer of proceedings to the Family Court or to a Supreme Court in certain cases, as was clearly intended.

242.       Item 41 corrects this error and ensures that subsection 46(1) provides as it was intended to for the transfer of proceedings from courts of summary jurisdiction.

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

243        Existing subsection 60D(1) defines member of Court personnel to include various officers of the Court and includes an “approved arbitrator”.  Item 42 repeals that reference, consequent upon items 6 and 7.

Item 43 - At the end of paragraph 63E(2)(b)

244.       Existing subsection 63E(2) provides for the consideration of an application for registration of a parenting plan.  Existing paragraph 63E(2)(b) provides that an application for registration of a parenting plan must be accompanied by a statement to the effect that either the party has been provided with independent legal advice or that the plan was developed after consultation with a family and child counsellor.

245.       The National Alternative Dispute Resolution Advisory Committee, which was established amongst other things to advise the government on issues relating to primary dispute resolution under the Act, considered the issue of who should be able to provide assistance in the development of parenting plans and recommended that family and child mediators should have the same status as family and child counsellors in this regard.

246.       Item 43 inserts new subparagraph 63E(2)(b)(iii), which provides that an application can also be accompanied by a statement to the effect that the plan was developed after consultation with a family and child mediator.

Item 44 - After subsection 63E(2)

247.       Item 44 inserts subsection (2A) to clarify that a reference to the parenting plan that is developed does not include a reference to a child maintenance provision of the plan.  This is because, since 1 October 1989, it has not possible to make a child maintenance agreement under the Act if a child support assessment or agreement can be made under the child support legislation.

Item 45 - After paragraph 65C(1)(b)

248.       Existing section 65C provides for the people who may apply for a parenting order.  Item 45 inserts new paragraph 65C(1)(ba) to specifically include a grandparent of the child.

Item 46 - After paragraph 66A(d)

249.       Existing section 66A sets out the matters covered by Division 7 of Part VII of the Act.

250.       Item 46 inserts paragraph 66A(da), to include in the list of matters covered by Division 7 varying the maintenance of certain children.

Item 47 - At the end of section 66E

251.       Existing section 66E provides that a child maintenance order cannot be made if an application for administrative assessment of child support can be made under the child support legislation.

252.       Item 47 adds subsection 66E(3) to provide that the prohibition against making a child maintenance order does not extend to international child maintenance arrangements, under sections 110 and 111A.

Item 48 - After paragraph 66F(1)(b)

253.       Existing section 65F provides for the people who may apply for a child maintenance order.  Item 48 inserts new paragraph 66F(1)(ba) to specifically include a grandparent of the child.

Item 49 - At the end of subsection 66L(1)

254.       Existing subsection 66L(1) makes provision for the court to make orders for maintenance of a child who has turned 18 years of age to enable the child to complete their education or if the child is mentally or physically disabled. 

255.       Item 49 adds to that subsection to allow the application for such a maintenance order to be made after the child has turned 17 and for the order to take effect where the child has turned 18.  This provision will ensure that there is no gap in the payment of maintenance for such a child between when they turn 18 and the granting of any court order.

Item 50 - Paragraph 66S(1)(b)

256.       Existing subsection 66S(1) provides for the circumstances in which an application may be made to vary an existing child maintenance order.  Existing paragraph (b) provides for a person who could apply for a child maintenance order to apply for a variation of such an order.

257.       Item 50 amends paragraph (b) to provide that an application for a variation of such an order may be made jointly by any persons who could apply for a child maintenance order.

Item 51 - After subsection 66S(1)

258.       Item 51 inserts subsection 66S(1A) that will allow all of the parties to a child maintenance order to vary such an order by consent, without the need to apply to the court for such a variation.

Item 52 - Subsection 66S(2)

259.       Item 52 amends subsection 66S(2) consequent upon the amendment to paragraph  66S(1)(b) made by item 50.

Item 53 - Paragraph 66S(2)(c)

260.       Item 53 amends paragraph 66S(2)(c), consequent upon the insertion of subsection 66S(1A) made by item 51.

Item 54 - At the end of Subdivision E of Division 7 of Part VII

261.       Item 54 inserts new Subdivision EA of Division 7 of Part VII to provide for the variation of maintenance of certain children.

262.       Subsection 66SA(1) sets out the circumstances under which parents can agree to vary an existing child maintenance order or child maintenance agreement.

263.       Subsection 66SA(2) provides that people may vary or revoke an earlier agreement or order by registering in a court a new written agreement.

264        Subsection 66SA(3) provides that if the earlier child maintenance agreement is varied, it continues to operate despite the death of a party to the agreement unless the agreement specifically provides that it should cease to operate in these circumstances.

265.       Subsection 66SA(4) provides that, unless the agreement or order otherwise provides, if an original agreement is varied it will continue to operate despite the death of the payer, the payee or a person entitled to receive the payment and will operate in favour of the legal personal representative of the deceased.

266        Subsection 66SA(5) provides that where the agreement or order is for periodic payment of maintenance, such an agreement or order will cease on the death of the party entitled to receive the periodic payments.

267.       Subsection 66SA(6) clarifies that section 66SA will apply despite the normal operation of Division 4 of Part VII, which deals with parenting plans.

Item 55 - After section 66V

268.       Existing section 66L provides for the circumstances in which a court may make a child maintenance order in relation to a child who is 18 or over.  Existing subsection 66L(1) provides that such an order must not be made unless the court is satisfied that maintenance is necessary to enable the child to complete their education or because the child has a mental of physical disability.

269.       Item 55 inserts section 66VA that provides for what will happen if a child does not continue to meet the criteria for maintenance under subsection 66L(1).

270.       Subsection 66VA(2) provides that a person who is in receipt of such maintenance must inform the payer of the change in circumstances as soon as practicable.

271.       Subsection 66VA(3) provides that if there is any overpayment of maintenance, because the child no longer meets the criteria, the amount overpaid may be recovered by proceedings in a court having jurisdiction under the Act.

Item 56 - Application of amendment

272.       Item 56 provides that item 55 only applies to child maintenance orders made after the commencement of item 55.

Item 56A - Section 66W

 

273.       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 continued 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.

 

274.       Items 56A and 56B overcome the concern expressed in that case.  Item 56A replaces existing section 66W.  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.  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.

 

Item 56B - Application of amendment

 

275.       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.

Item 57 - After paragraph 67K(c)

276.       Existing section 65K provides for the people who may apply for a location order.  Item 57 inserts new paragraph 66K(ca) to specifically include a grandparent of the child.

Item 58 - Subsection 67M(2)

277.       Existing section 67M provides for the making of a location order, other than a Commonwealth information order.  Item 58 extends the application of this section to enable a location order to be made in the international enforcement of orders or the making of an order for the return of an abducted child, under new Part XIIIAA.

Item 59 - Subsection 67N(2)

278.       Existing section 67N provides for the making of a Commonwealth information order.  Item 59 extends the application of this section to enable a Commonwealth information order to be made in the international enforcement of orders or the making of an abduction return order, under new Part XIIIAA.

Item 60 - Paragraph 67Q(g)

279.       Existing section 67Q defines recovery order for the purposes of the Act.  Paragraph 67Q(g) provides that a recovery order may authorise the arrest without warrant of a person who, on a second or subsequent occasion, removes a child in contravention of an order.

280.       Item 60 amends paragraph 67Q(g) to provide that the recovery order may both authorise the arrest without warrant or direct a person to arrest without warrant.

Item 61 - Paragraph 67Q(g)

281.       Item 61 ensures that paragraph 67Q(g) is grammatically correct, consequent upon the amendment at item 60.

Item 62 - Section 67Q (note)

282.       Existing section 67Q contains a note in relation to the arrest of a person.  Item 62 will repeal the existing note and will replace it with two new notes.  Note 1 deals with the use of reasonable force in the arrest of a person, as a consequence of item 96.  Note 2 clarifies that where a recovery order has been made as a consequence of an infringement of a parenting order and a subsequent infringement of the parenting order occurs during the life of the recovery order, the recovery order can be used again in respect of any subsequent infringements of the parenting order.

Item 63 - After paragraph 67T(c)

283.       Existing section 67T provides for the people who may apply for a recovery order.  Item 63 inserts new paragraph 67T(ca) to specifically include a grandparent of the child.

Item 64- At the end of section 67W

284.       Existing section 67W provides for Rules of Court to deal with how long a recovery order remains in force.  Item 64 adds subsection 67W(3) to avoid doubt that a recovery order can be used as many times as is necessary during its duration.

Item 64A - Paragraph 67X(3)(a)

285.       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 .

Item 64B - At the end of subsection 67X(3)

286.       This amendment adds a Note to direct people to the relevant section to ascertain the value of a penalty unit.

Item 65 - At the end of subsection 67ZA(1)

287.       Existing 67ZA provides for the members of court personnel who are obliged to report suspicions of child abuse to the appropriate State and Territory authorities.  Item 65 adds paragraph 67ZA(1)(d) to provide that an arbitrator employed by the court is similarly obliged.

Item 66 - Paragraph 68C(1)(b)

288.       Existing section 68C provides for the powers of arrest without warrant.  Existing subsection 68C(1)(b) provides for the circumstances in which a police officer may arrest a person, without warrant, pursuant to the breach of an injunction designed to protect another person.  These circumstances include that the person has breached the injunction by causing or threatening to cause bodily harm to the protected person.

289.       Item 66 adds to the circumstances by including “stalking” of another person and will restructure the existing paragraph to make it easier to read.

Item 67 - At the end of subsection 68C(1)

290.       Item 67 adds a note at the end of the subsection referring to section 122AA, which will deal with the use of reasonable force in making an arrest.

Item 68 - After subsection 68L(2)

291.       Existing section 68L provides the court with power to make an order for the appointment of a separate representative for a child in proceedings in which the child’s best interest are the paramount or a relevant consideration.

292.       Item 68 inserts subsection 68L(2A) to provide that in proceedings for the return of a child, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, the court may only make an order for separate representation of the child where it considers that there are exceptional circumstances justifying the making of the order.  The court must specify in the order those exceptional circumstances.

293.       Under the Hague Convention on the Civil Aspects of International Child Abduction, generally a country is required to send a child abducted to its jurisdiction back to the country of habitual residence of the child prior to the abduction.  This means that there should be no determination whether or not the child is to be returned to the former country.  There should be no need, therefore, to inquire into the reasons for the abduction or into the best interests of the child in such cases.

 

294.       In De L v Director General, New South Wales Department of Community Services (1996) FLC ¶92-706, the High Court held that where a child expresses an objection to return under the Hague Convention on the Civil Aspects of International Child Abduction that child should ordinarily be separately represented in the proceedings.  Subsection 68L(2A) overturns the effect of this decision and restrict the availability of separate representation in these proceedings to exceptional cases.

Item 68A - Section 69MA

295.       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.

Item 69 - After section 69V

296.       Existing section 69V provides that if the parentage of a child is in issue in proceedings under the Act, the court may make an order requiring any person to give evidence in relation to the parentage of the child.  On the basis of this evidence the court can make a decision about the parentage of the child for the purposes of the proceedings.  However, such a finding will not determine the issue of parentage for the purposes of any other Commonwealth law.

297.       Item 69 inserts section 69VA that will enable the court, in deciding the issue of parentage of a child, to declare that parentage for the purposes of all laws of the Commonwealth.

Item 70 - Section 70F (definition of overseas child order )

298.       Subdivision C of Division 13 of Part VII provides for the registration of overseas orders relating to children to enable their enforcement in Australia.  Existing section 70F provides a number of definitions for the purposes of the Subdivision.  Item 70 inserts a new definition of overseas child order , relating to residence and contact arrangements between a child under the age of 18 years of age and a parent or parents.

Item 71 - After subsection 70M(1)

299.       Subsection 70M(1) provides for residence, contact or specific issues orders made in Australia, in relation to a child under the age of 18, to be transmitted to a prescribed overseas jurisdiction for the purposes of enforcement in that jurisdiction.

300.       Item 71 inserts subsection 70M(1A) that will provide that section 70M will also apply in relation to any order made under the Hague Convention on the Civil Aspects of International Child Abduction in respect of a child under the age of 18 in a Convention country.

Item 72 - Subsection 70M(2)

301.       Item 72 inserts the words “or convention country”, consequent upon item 68.

Item 73 - At the end of section 70N

302.       Existing section 70N provides for regulations to make provision for and in relation to the sending to a prescribed overseas jurisdiction of copies of residence, contact or specific issues orders made in Australia in respect of a child under the age of 18.

303.       Item 73 inserts new subsection 70N(2) that provides that section 70N will also apply in relation to any order made under the Hague Convention on the Civil Aspects of International Child Abduction in respect of a child under the age of 18 in a convention country.

Item 74 - Sections 84 and 85

304.       Item 74 repeals these sections, as they are effectively being moved into Part XIII.

Item 75 - Transitional

305.       Item 75 provides that anything done under section 84 will be taken to have been done under section 106A.  Item 75 also provides that anything done under section 85 will be taken to have been done under section 106B.  This will remove any doubt that actions taken under former sections 84 and 85, prior to the commencement of new sections 106A and 106B, remain operative.

Item 76 - After subsection 94(2)

306.       Item 76 of Schedule 11 of the Federal Magistrates (Consequential Amendments) Act 1999 inserted section 94AAA into the Act to provide for appeals to the Family Court from the Federal Magistrates Service.  Section 94(2) 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.

 

307.       This amendment inserts subsections 94(2A) to (2F), to update the appeal provisions to provide consistency with appeals from the Federal Magistrates Service.

 

Item 76A - Subsection 94AA(2A)

 

308.       This amendment corrects a drafting error in the Act.

Item 77 - Subsection 94AA(4)

309.       Existing section 94AA provides that leave to appeal to the Full Court is required in certain circumstances.  Existing subsection 94AA(4) provides for definitions of child welfare matter and prescribed decree for the purposes of section 94AA. 

310.       Item 77 repeals subsection 94AA(4) as the definition of child welfare matter is no longer required and the definition of prescribed decree is provided for in the Federal Magistrates Act 1999 .

Item 78 - Subsection 98A(2)

311.       Existing subsection 98A(2) provides that the Rules of Court may deal with proceedings for the dissolution of a marriage in the absence of the parties, or their legal representatives, where the proceedings have been instituted jointly by the parties.  A current requirement for such a hearing is that there must not be any children of the marriage under 18 years of age.

312.       Item 78 amends subsection 98A(2) to remove the requirement regarding the existence of children under 18 years of age and enable proceedings to be heard in the absence of the parties, or their legal representatives.  Item 79 - After subsection 98A(2)

313.       Item 79 inserts subsection 98A(2A) which will prevent a court from determining proceedings for the dissolution of a marriage in the absence of parties, or their legal representatives, if the court is not satisfied that proper arrangements in all the circumstances have been made for any children of the marriage under the age of 18 years.  This amendment only applies to applications made jointly.

314.       Item 79 also inserts subsection 98A(2B) that provides that proceedings under subsections 98A(1) or (2) may be heard in chambers.

Item 79A - After section 100A

           

315.       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.  Those rules have a sound policy basis.

 

316.       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.

 

317.       Section 100B overcomes the doubts expressed by the court in Renshaw and Reschke , and deals 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.

 

318.       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.

 

319.       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.

 

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

Item 80 - After section 105

321.       Item 80 inserts section 106.  Section 106 removes any doubt that the court has the power to enforce maintenance orders regardless of whether they are more than 12 months in arrears.  This will overturn the current common law in this regard.

322.       Item 80 also inserts section 106A and section 106B.  Sections 106A and 106B are being relocated, without amendment, from Part VIII into Part XIII, as noted in respect of item 74 above.

Item 81 - After section 109B

323.       Item 81 inserts a new heading Part XIIIAA - International conventions, international agreements and international enforcement.

Item 82 - After section 110

324.       Item 82 inserts section 110A that will provide for the making of regulations relating to the registration and enforcement in Australia of overseas maintenance agreements or overseas assessments of maintenance liabilities.

325.       Item 82 also inserts section 110B that will provide for the making of regulations relating to the transmission to prescribed overseas jurisdictions of documents about maintenance agreements or assessments made in Australia under this Act.

Item 83 - Saving

326.       Item 83 is self-explanatory, and is consequent upon the amendments made by item 82.

Item 84 - Section 111

327.       Existing section 111 provides that regulations may make such provision as is necessary to enable the performance of Australia’s obligations under the Convention on the Recovery Abroad of Maintenance (UNCRAM).  In recent litigation under the Hague Convention on the Civil Aspects of International Child Abduction, the use of the narrow form “necessary” led to arguments that strict compliance with the terms of the Convention was necessary rather than allowing the Government to implement the Convention in the most appropriate and cost effective way.

328.       Item 84 inserts “or convenient”, after the word “necessary”, to put it beyond doubt that the Government can regulate to implement UNCRAM as it sees fit.

Item 85 - Section 111A

329.       For similar reasons as outlined for item 84, item 85 inserts “or convenient”, after the word “necessary”, to put it beyond doubt that the Government can regulate to implement the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations as it sees fit.

Item 86 - Subsection 111B(1)

330.       For similar reasons as outlined for item 84, item 86 inserts “or convenient”, after the word “necessary”, to put it beyond doubt that the Government can regulate to implement the Hague Convention on the Civil Aspects of International Child Abduction as it sees fit.

Item 87 - After subsection 111B(1)

331.       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.

 

332.       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.

 

333.       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.

334.       Item 87 inserts subsection 111B(1A) to enable regulations to be made about the onus of establishing whether a child should be returned under the Convention, establishing a rebuttable presumption in favour of returning the child and allowing the Central Authority to apply for a contact order if it is decided that the child is not to be returned under the Convention.

335.       The item also inserts subsection 111B(1B) to enable regulations to be made to provide that a child’s objection to returning under the Convention is not to be taken into account unless the objection is a strong one.  As noted above in respect of item 65, under the Hague Convention on the Civil Aspects of International Child Abduction, generally a country is required to return the abducted child for the purposes of the Convention. This means that there is generally no determination whether or not the child is to be returned to the former country.  There is generally no need, therefore, to inquire into the reasons for the abduction or into the wishes of the child in such cases.

336.       Item 87 also inserts subsection 111B(1C) to provide that a Central Authority may arrange to place a child who has been returned to Australia under the Convention with an appropriate person or institution to secure that child’s welfare until the court makes an order for the child’s care, welfare and development.  This provision ensures that the central concept of the Convention, that is that issues regarding the arrangements between the child and the parent are dealt with by a court in the country of habitual residence, is preserved.

337.       Item 87 also inserts subsection 111B(1D) to provide for placing the child despite any undertakings given prior to the child’s return to Australia.  This means, for example, that if an overseas court has ordered the return of the child on the basis that one or both of the parents have made undertakings in relation to the child, the Australian Central Authority is not bound to make decisions in accordance with those undertakings.  The Australian Central Authority will have regard to the best interests of the child to ensure the security of the child, pending court proceedings.

338.       Item 87 also inserts subsection 111B(1E) to provide for regulations to give effect to Article 21 (rights of access) of the Convention.

Item 88 - Subsection 111B(4)

339.       Existing subsection 111B(4) provides for a number of implications as to rights of custody under the Hague Convention on the Civil Aspects of International Child Abduction arising from Australian law or court orders on residence and contact.  Item 88 repeals existing subsection 111B(4) and will substitute new subsection 111B(4), in order to clarify these implications.

Item 89 - After subsection 111B(5)

340.       Item 89 inserts subsection 111B(5A) that clarifies that subsections 111B(2), (3), (4) and (5), do not limit the general requirements to comply with the Hague arrangements outlined in subsection 111B(1).

Item 90 - Subsections 111C(1) and (3)

341.       For similar reasons as outlined for item 84, this item will insert “or convenient”, after the word “necessary”, to put it beyond doubt that the Government can regulate to implement the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption as it sees fit.

Item 91 - After subsection 111C(7)

342.       Item 91 inserts subsection 111C(7A) to provide that Rules of Court may be made in relation to the making of adoption orders.

Item 92 - After section 111C

343.       Item 92 inserts new section 111D.  Section 111D provides for the making of regulations, in respect of sections 110, 111, 111A, 111B or 111C, about the rules of evidence to apply in proceedings under those sections.

344.       Subsection 111D(2) clarifies that the provisions of any regulations have effect despite any inconsistency with the Evidence Act 1995 or any other law about evidence.

Item 93 - Section 112

345.       Existing section 112 provides for arrangements to be made with State and Territory governments in relation to the performance by a State or Territory officer of a function under the Act.  This provision is being relocated, in total, to Part XV, as provided for by item 109.  Item 93 repeals existing section 112.

Item 93A - Paragraph 112AH(8)(a)

346.       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 .

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

347.       This amendment adds a Note to direct people to the relevant provision to ascertain the value of a penalty unit.

Item 94 - Paragraph 114AA(1)(b)

348.       Existing subsection 114AA(1) provides for the powers of arrest without warrant.  Existing subsection 114AA(1)(b) provides for the circumstances in which a police officer may arrest a person, without warrant, pursuant to the breach of an injunction designed to protect another person.  These circumstances include that the person has breached the injunction by causing or threatening to cause bodily harm to the protected person.

349.       Item 94 adds to the circumstances by including “stalking” of another person and restructures the existing paragraph to make it easier to read.

Item 95 - At the end of subsection 114AA(1)

350.       Item 95 adds a note at the end of the subsection referring to the new section 122AA, which deals with the use of reasonable force in making an arrest.

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

351.       Item 96 repeals the existing definition and substitutes a new definition of relevant period , to clarify that a person arrested under the section has to be brought before the court before the close of business on the next working day after the arrest.

Item 97 - Subsection 117(1)

352.       Item 97 makes a correction to a reference, consequent upon item 98.

Item 98 - After section 117

353.       Item 98 inserts section 117AA.

354.       Subsection 117AA(1) provides that in proceedings under the regulations made for the purposes of sections 110, 111, 111A, 111B or 111C, the court can only make an order as to costs in favour of a party who has been substantially successful in the proceedings and against the person, or body appointed under the regulations, that is a party to the proceedings.  This ensures that costs orders are only made in favour of a party where the opposing party has asserted an argument that is not reasonable given the terms of the Act or regulations.

355.       Subsection 117AA(2) makes similar provision for a costs order for a part of the proceedings.

356.       Subsection 117AA(3) makes provision for a costs order to be made against a party who wrongfully removed a child or prevented the exercise of rights of access to a child, under the Hague Convention on the Civil Aspects of International Child Abduction.  Such costs will be limited to the necessary expenses incurred by the person who made the application for the return of, or the exercise of the rights of access to, the child.

Item 99 - After subsection 117C(2)

357.       Item 99 inserts subsection 117C(2A) that provides that if a party files an application of offer of settlement and that offer is accepted by the other party before it is withdrawn, that acceptance brings the proceedings to an end.

Item 100 - Subsections 121(1) and (2)

358.       Item 100 extends the definition of publication to include all forms of electronic means, in order to cover current forms of dissemination of information. 

Item 101 - Paragraphs 121(3)(b) and (c)

359.       Item 101 extends the definition of publication to include all forms of electronic means, in order to cover current forms of dissemination of information.  

Item 102 - Subsection 121(8)

360.       Existing subsection 121(8) provides that proceedings for an offence under section 121 shall not be commenced except by, or with the written consent of, the Attorney-General.  This function has been delegated to the Director of Public Prosecutions, under subsection 6(4) of the Director of Public Prosecutions Act 1983 .

361.       Item 102 provides, on the face of the Act, that the Director of Public Prosecutions has the responsibility to prosecute, or give consent to the prosecution of, breaches of section 121 of the Act.

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

362.       Item 103 corrects a drafting error by adding “or” to each of the listed exceptions in paragraphs 121(9)(a) to (d).

Item 104 - After paragraph 121(9)(d)

363.       Item 104 inserts paragraph 121(9)(da).  Paragraph 121(9)(da) will provide that section 121 does not apply to the display of notices in the premises of a court that lists proceedings identified by reference to the names of the parties that are to be dealt with by the court.

Item 105 - After subparagraph 121(9)(f)(i)

364.       Existing paragraph 121(9)(f) provides for an exception to section 121 for the publication or dissemination of an account of proceedings to a professional in the course of their professional practice and to a student in connection with their studies.

365.       Item 105 inserts subparagraph 121(9)(f)(ia) that provides an additional exception for an individual who is a party to any proceedings under the Act in connection with those proceedings.  There is an increasing number of people who represent themselves in family law proceedings and this will enable such self-represented litigants to obtain information to assist them in the conduct of their proceedings.

Item 106 - At the end of subsection 121(10)

366.       Existing subsection 121(10) provides that specific Rules of Court may be made in relation to the listing of proceedings.  Item 106 inserts a note at the end of subsection 121(10), to provide a cross reference to the other provisions about rule making powers.

Item 107 - Subsection 121(11)

367.       Existing subsection 121(11) provides that, for the purposes of section 121, “court” includes an officer of a court and a tribunal.

368.       Item 107 repeals existing subsection 121(11) and inserts new subsection 121(11) that provides a definition of “court” in similar terms to the existing definition, with the exception that the definition of “court” will not apply for the purposes of subsections (2B) and (2C).  This means that a decision to restrict publication, which would otherwise be permitted under subsection (2A), must be made by a court and not by an officer of a court.

369.       Subsection 121(11) also defines electronic means broadly, to encompass existing and future means of transmitting information.

Item 108 - After section 122

370.       There has been some confusion as to the level of force that may be used in arresting persons under the Act.  Item 108 inserts section 122AA, which provides that a person may use reasonable force to make an arrest, with or without warrant, or to prevent a person escaping.

Item 109 - After section 122A

371.       Item 109 inserts section 122B, in the same terms as existing section 112, which provides for arrangements to be made with State and Territory governments in relation to the performance by a State or Territory officer of a function under the Act.  Item 90 repeals the existing provision as the provision is being relocated, in total, to Part XV.

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

372.       Item 110 omits the references to “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 111 - Subparagraph 123(1)(sf)(ii)

373.       Item 111 amends subparagraph 123(1)(sf)(ii), consequent upon item 22.

Item 112 - At the end of section 123

374.       Item 112 adds a note to the end of section 123, cross referencing to other rule making power provisions.

Item 113 - Paragraph 125(1)(ba)

375.       Item 113 omits the references to “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 114 - After paragraph 125(1)(ba)

376.       Item 114 inserts subparagraphs 121(1)(bb) and (bc), providing for the prescribing of requirements for arbitrators and procedural matters, which will also be able to be dealt with under the Rules of Court.

Item 115 - Paragraph 125(1)(c)

377.       Paragraph 125(1)(c) provides that regulations may be made prescribing court fees to be payable in respect of proceedings under the Act or of an arbitration.

378.       Item 115 removes the ability to prescribe fees in respect of arbitration, consequent upon item 23.

Item 116 - At the end of section of section 125

379.       Item 116 inserts new subsection 125(3) to clarify that if there is any inconsistency between regulations, made by the Executive, and Rules of Court, made by the Court, the regulations will prevail.

Federal Magistrates Act 1999

 

Item 117 - Subsection 19(2)

 

380.       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.

 

381.       This amendment mirrors the changes made to subsection 33A(2) of the Act by item 31A.

 

382.       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. 

 

Item 118 - Subsection 65(3)(note)

Item 119 - Subsection 78(1)(note)

 

383.       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 item 40A.

 

Veterans’ Entitlements Act 1986

 

Item 120 - After subparagraph 51(3)(a)(i)

 

384.       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.