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Family Law Amendment Bill 2000

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1998-99

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

FAMILY LAW AMENDMENT BILL 1999

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 

 



 

TABLE OF CONTENTS

 

                                                                                                                                          Page

 

General Outline                                                                                                                 1

 

Financial Impact Statement                                                                                             2

 

Regulation Impact on Business                                                                                      2

 

Regulation Impact Statement                                                                                          4

 

Consultation Statement                                                                                                    7

 

Notes on Clauses                                                                                                               8

 

Schedule 1 - Sanctions for failure to comply with orders and other                        9

obligations

 

Schedule 2 - Financial agreements                                                                              20

 

Schedule 3 - Other amendments                                                                                  25

 

 



FAMILY LAW AMENDMENT BILL 1999

 

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 adopt the 3 tiered approach to the enforcement of parenting orders recommended by the Council. 

The Bill will provide for -

•       preventative measures, to improve communication between separated parents and educating parents about their respective responsibilities in relation to their children;

•       remedial measures, to enable the parents to resolve issues of conflict about parenting; and

•       punitive measures, to ensure that, as a last resort, a parent is punished for deliberate disregard of a court order.

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 financial advice as to the financial effect of the agreement or independent legal advice as to the legal effect of the agreement before concluding their agreement, or both.  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 was obtained by fraud, duress or undue influence or where there was a significant change in circumstances that would make it unfair to give effect to the agreement.

Other miscellaneous amendments

Finally, the Bill will make a large number of other amendments to the Act designed to assist the orderly functioning of the court, to facilitate transfers of proceedings between courts, to make some minor changes regarding child maintenance orders, to ensure that the location and recovery provisions of the Act apply to international child abduction cases, to limit the application of the separate representative provisions in international child abduction cases and to provide the court with a broader range of powers to make Rules of Court for enforcing orders about property and money.

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 deals 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 obtain either, or both, independent financial advice as to the financial effect of the agreement or independent legal advice as to the legal effect of the agreement.

The workload of financial and 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 financial and legal advisers.

Parties will incur costs in reaching the agreement, as they would generally have to pay for the services of a financial or legal adviser.  However, this will be offset by the fact that 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 financial or 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 financial  advice as to the financial effect of the agreement or independent legal advice as to the legal effect 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 financial or 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 financial or 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 financial  advice as the financial effect of the agreement or independent legal advice as to the legal effect 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 financial or 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:

•        financial and legal advisers;

•        married and separating couples; and

•        the Family Court.

Option 1 - maintain the status quo

Financial and legal advisers

This option would have no effect on financial and 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 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 financial or legal advice in order for the agreements to be binding

Financial and legal advisers

This option would have no effect on financial advisers.  It 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 financial or 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 legal or financial effect 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 financial  advice as to the financial effect of the agreement or independent legal advice as to the legal effect of the agreement

Financial and legal advisers

Under this option, the workload of financial and 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 financial and 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 advice, either financial or legal, 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 financial or legal adviser.

However, this would be offset by the fact that people will be fully aware of the financial and 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 advice is obtaining 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 not 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 (No. 1) 1999.

Clause 2 - Commencement

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

3.           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 .

4.           Item 41 of Schedule 3 will correct an error resulting from the commencement in 1988 of amendments to subsection 46(1), which provides for the transfer proceedings to the Family Court from a court of summary jurisdiction in certain cases, 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”).  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.

5.           For this reason, Item 41 is taken to have commenced as provided for in subclause 2(2).  The Bill will include 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

6.           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 -  SANCTIONS FOR FAILURE TO COMPLY WITH ORDERS AND OTHER OBLIGATIONS

Family Law Act 1975

7.           Schedule 1 will:

•        insert, into Part VII, Division 13A - Sanctions for failure to comply with orders, and other obligations, that affect children;

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

•        insert Part XIIIB - Contempt of court; and

•        make other consequential amendments.

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

8.           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 will repeal 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)

9.           Item 2 will repeal existing table item 6 and substitute 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 parenting compliance regime.

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

10.         Item 3 will insert a new reference in the table outlining the contents of Division 13A of Part VII, which will make provision for the stages 2 and 3 of the parenting compliance regime.

Item 4 - After section 63D

11.         Item 4 will insert section 63DA that will require any professional person assisting people to make a parenting plan, under existing section 63, to explain the obligations that the parenting plan makes on those people, the consequences the may follow for them on a failure to comply with the terms of the parenting plan and the assistance that is available to help people who experience difficulties in complying with a parenting plan.

Item 5 - After section 65A

12.         Item 5 will insert section 65AA that will set 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 section 65DA, which will be inserted by item 6, and Subdivisions B and C of Division 13A of Part VII, which will be inserted by item 7.

Item 6 - After section 65D

13.         Item 6 will insert new section 65DA that will provide for stage 1 of the parenting compliance regime.

14.         Subsection 65DA(1) will make it clear that the court, when making a parenting order, has a duty to explain the order to people to whom it is directed.  Paragraph 65DA(1)(a) will allow the court to request the legal practitioner representing a party in the proceedings to make the explanation to that party.  Paragraph 65DA(1)(b) will require the court to explain the obligations and consequences to any unrepresented party to the proceedings.

15.         Subsection 65DA(2) will impose on a legal practitioner requested by the court to explain the obligations and consequences to a party a duty to make that explanation.  If the legal practitioner fails to fulfil the duty imposed, disciplinary action could be taken in respect of the breach of duty.

16.         Subsection 65DA(3) will set out the matters that the court must explain to the parties.  These will be the obligations that the parenting order creates, the availability of programs to help people understand their responsibilities under parenting orders, the consequences that may follow if the person contravenes the order and the availability and use of location and recovery orders to ensure that parenting orders are complied with.  Unlike a similar requirement in existing subsection 68R(2) in relation to the making of an order for contact that is inconsistent with a family violence order, subsection 65DA(3) will provide for a personal obligation on the presiding officer of the court or the requested legal practitioner that can not be delegated by the court to court personnel, or by the legal practitioner to any other legal practitioner.

17.         In addition, the subsection will specify that the court or the legal practitioner, when giving the explanation, must use language that is able to be understood by the person to whom the explanation is being given.

Item 7 - After Division 13 of Part VII

18.         Item 7 will insert Division 13A - Sanctions for 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.

19.         Under the current law, in many cases, contact order compliance is seen by some as being optional.  When the court makes an order about the parenting of a child, it must be observed.

20.         However, Family Court orders are different to other court orders in two important respects.  First, they must balance the emotional distress that often accompanies relationship breakdown and second the opportunity for the breach of a parenting order providing for contact comes about on each occasion of contact.

21.         Division 13A will make 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 70NA - Objects of Division

22.         This section is self explanatory.

Section 70NB - Definitions

23.         Section 70NB will define a number of terms for the purposes of Division 13A.  Of particular importance will be the definitions of ‘participate’ and ‘post-separation parenting program’.

Section 70NC - Meaning of contravened an order

24.         Section 70NC will define the meaning of contravened an order, with the emphasis being on the wilfulness on the part of the parent in failing to comply with a parenting order, or that of another person who assists a parent in failing to comply with a parenting order.

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

25.         Section 70ND will reinforce 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

26.         Section 70NE will incorporate, 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.

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

Section 70NF - Application of Subdivision

27.         Section 70NF will set out the circumstances in which the subdivision applies, to make it clear that it applies to orders made before or after the commencement of Division 13A, whether or not the contravention occurred before or after such commencement.  After the commencement of section 70NF, the court will be required to apply the provisions of this subdivision in every matter where an application for enforcement of a parenting order is sought.

28.         Section 70NF will also make it clear that the section will apply to any contravention of a maintenance order, irrespective of when such contravention may have occurred.  This approach is consistent with the principles on maintenance liability contained in existing section 66C.

Section 70NG - Powers of court

29.         Subsection 70NG(1) will provide that, where an application for a sanction has been brought against a parent for not complying with a parenting order and the court has found that there was not a reasonable excuse for the non-compliance, the court may direct the person to participate in a specified post-separation parenting program, provided that the program is available within a reasonable distance from the person’s place of residence or work.  As a guide, within the metropolitan area of a city or large regional centre it would not be unreasonable to require attendance if public transport could be used to get to the venue or if the person had private vehicle access.  In smaller communities it would not be unreasonable to attend if the person had private vehicle access and the one way journey did not exceed 1 hour.  However, what is actually reasonable will depend on the facts and circumstances of the individual case.

30.         Subsection 70NG(1) will also provide that the court may also, either as an alternative to making an order to participate in a post-separation parenting program or as well as such an order, make a further parenting order that compensates for contact foregone as a result of the contravention of an existing parenting order.

31.         Subsection 70NG(2) will clarify that the court is not to order a person to take part in a post-separation parenting program unless the program is available within a reasonable distance from the person’s place of residence or work.

32.         Subsection 70NG(3) will provide that the court, at the time of making the order for participation in a post-separation parenting program, must ensure that the relevant provider of the program is notified of the making of the order.  The subsection will also provide for the making of Rules of Court to facilitate the provision of the information to the program provider, including the details of the person ordered to participate in the program.

33.         Subsection 70NG(4) will provide 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 subsection will also provide the Attorney-General with the capacity to amend a list during a calendar year and require the Attorney-General to publish such amended list.

Section 70NH - Notification to court

34.         Subsection 70NH(1) will place a duty on the post-separation parenting program provider to inform the court if the person ordered to attend a post-separation parenting program is assessed as being unsuitable to take part in the program.

35.         Subsection 70NH(2) will also place a duty on the provider to inform the court if the person does not attend or, if attending, does not participate in the program so as to derive benefit from it or is considered to be unsuitable to take any further part in the program.  The Rules of Court will provide the procedure for this notification.  It is expected that when the Rules of Court are being developed, a one-off failure to attend for a valid reason will not lead to the necessity to inform the court but that more frequent failures to attend or participate will be reported.

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

36.         Section 70NI will provide that, where the court has been notified by the post-separating parenting program provider that the person ordered to participate in a post-separation parenting program has not participated or is not participating or fully participating, the court may make further orders with respect to the person’s participation.  One possible order that the court might consider making is an order under section 70NJ.

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

Section 70NJ - Punitive powers of court

37.         Subsection 70NJ(1) will provide the framework for the imposition of mandatory punitive sanctions to be imposed on a person who persists in failing to comply with an order made under stage 2 of the parenting compliance regime without establishing, on the balance of probabilities, a reasonable excuse for failing to comply.

38.         Subsection 70NJ(2) will provide that the court may use its punitive sanctions powers, without having previously ordered a person to participate in a post-separation parenting program or having made an order for compensatory contact, where there are exceptional circumstances.  Subsection 70NJ(2) will provide that the exceptional circumstances will be that a post-separation parenting program was not reasonably available, that the court considers that it would not be appropriate for the person to participate in such a program or that the court considers that it would not be appropriate to make an order for compensatory contact.

39.         Subsection 70NJ(3) will establish the range of punitive sanctions that may be imposed on a person, including a compensatory contact order.  All of these sanctions are currently available in existing Part XIIIA but in that Part the court has a discretion as to whether to impose a sanction. Under subsection 70NJ(3), the court will not have any such discretion.  Subsection 70NJ(3) will also not allow for the suspension of a sanction that has been imposed, as is the case under existing Part XIIIA.

40.         Subsection 70NJ(4) will provide 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.

41.         Subsection 70NJ(5) will set out matters that must be taken into account if the proposed punitive sanction is to vary the existing parenting order that has been contravened.  In such cases, subsection 70NJ(5) will specifically incorporate the paramountcy of best interest of the child.  Subsection 70NJ(5) will also specify that all the relevant elements of the 3 tier regime must be taken into account.

42.         Subsection 70NJ(6) will provide that a sanction of imprisonment may be imposed for the non payment of maintenance where the contravention was wilful 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 that recommendation.

43.         Subsection 70NJ(7) will provide 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.

44.         Subsection 70NJ(8) will clarify that at the time of making a sanction order the court may also make other orders it considers necessary to ensure future compliance with the parenting order the breach of which gave rise to the application of the sanction regime.

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

45.         Section 70NK is based on existing section 112AG of Part XIIIA, with some minor consequential drafting changes and also 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 3 tier parenting compliance regime.

46.         Subsection 70NK(1) will provide 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.

47.         Subsection 70NK(2) will provide 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) will also provide that a community service order has a maximum life of 2 years.

48.         Subsection 70NK(3) will provide 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.

49.         Subsection 70NK(4) will provide 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.

50.         Subsection 70NK(5) will set out the definitions of a number of terms used in the section.

Section 70NL - Variation and discharge of community service orders

51.         Section 70NL will replicate existing section 112AK, with some minor consequential drafting changes.  There will be a further change in that provision to allow for variations and discharges to be ordered by the proposed Federal Magistrates Court when it is established.

Section 70NM - Bonds

52.         Section 70NM will replicate existing section 112AF, with some minor consequential drafting changes.  It will also change 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

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

Section 70NO - Sentences of imprisonment

54.         Section 70NO will replicate existing section 112AE, with some minor consequential drafting changes.

55.         Section 70NO will also include 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.

56.         Section 70NO will also include, 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

57.         Section 70NP will replicate existing section 112AM, with some minor consequential drafting changes.

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

58.         Section 70NQ will replicate existing section 112AN, with some minor consequential drafting changes.

59.         Subsection 70NQ(2) will also contain 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

60.         Section 70NR will replicate existing section 112AO, with some minor consequential drafting changes.

Item 8 - Section 107

61.         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.

62.         Item 8, which will replace existing section 107, will continue 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

63.         Item 9 will insert section 109A that will provide that Rules of Court can be made to deal with the enforcement of money and property orders made under the Act or the Child Support (Registration and Collection) Act 1988.

64.         Subsection 109A(2) will provide for the types of matters that can be covered by the Rules of Court.

65.         Subsection 109A(3) will specify the types of enforcement actions that can be covered by the Rules of Court.

66.         Subsection 109A(4) will provide 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.

67.         Subsection 109A(5) will define property for the purposes of this section.

Item 10 - Heading to Part XIIIA

68.         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

69.         Item 11 will insert 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 )

70.         Item 12 will correct 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 )

71.         Item 13 will repeal 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 )

72.         Item 14 will repeal 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 15 - Section 112AA

73.         Item 15 will insert 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 )

74.         Item 16 will repeal the current definition and will substitute 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)

75.         Item 17 will repeal 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)

76.         Item 18 will make 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)

77.         Item 19 will repeal the subsections, 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 20 - Subsections 112AD(1), (1A), (2) and (2A)

78.         Item 20 will repeal existing subsections 112AD(1), (1A), (2) and (2A) and substitute new subsections, 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.

79.         Subsection 112AD(1) will remove the current discretion in the court to impose a penalty for failing to comply with a court order and makes it mandatory for a sanction to be imposed where the court is satisfied that there has been a failure to comply with a court order.

80.         Subsection 112AD(1A) will clarify that a penalty must 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.

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

82.         Subsection 112AD(2A) provides that a sanction of imprisonment may be imposed for the non payment of maintenance where the contravention was wilful 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)

83.         Item 21 will omit references to subsection (1A), 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 22 - Subsection 112AD(5)

84.         Item 22 will repeal subsection 112AD(5), 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 23 - Subsections 112AE(1), (2) and (3)

85.         Item 23 will correct 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)

86.         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 will amend the subsection to remove the capacity to release a person on a bond before the term of imprisonment commences.

87.         Item 24 will also replace, in existing subsection 112AE(6), “recognizance” with  “bond”.

Item 25 - At the end of section 112AE

88.         Item 25 will insert 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.

89.         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

90.         Item 26 will replicate 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)

91.         Item 27 will correct 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)

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

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

93.         Item 29 will change “recognizances” to “bonds”, wherever occurring.

Item 30 - Subsection 112AM(5)

94.         Item 30 will repeal subsection 112AM(5), 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 31 - Saving

95.         Item 31 is a saving provision and will ensure 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

96.         Item 32 will repeal the existing heading to Division 3 - Contempt of Part XIIIA and substitute a new heading to Part XIIIB - Contempt of court.

Item 33 - Subsection 112AP(1)

97.         Item 33 will make a drafting change to existing subsection 112AP(1A), consequent on Item 34.

Item 34 - After subsection 112AP(1)

98.         Existing section 112AP provides for contempt of court.  Item 34 will insert a new subsection 112AP(1A) that will provide 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

99.         Item 35 will add new subsections 112AP(8) and (9).

100.       Subsection 112AP(8) will provide 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.

101.       Subsection 112AP(9) will define “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)

102.       Item 36 will repeal 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 will insert 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)

103.       Item 37 will change 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)

104.       Item 1 will insert a definition of financial agreement , as provided for in sections 90B, 90C and 90D.  Item 1 will also clarify 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 )

105.       Item 2 will insert 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 )

106.       Item 3 will correct a minor drafting error, by adding “or” to the end of each of the paragraphs.

Item 4 - After section 71

107.       Item 4 will insert section 71A in existing Part VIII, to provide that the Part does not apply to financial matters, which is defined in section 4, or the financial resources of the parties 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)

108.       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.

109.       Item 5 will add 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)

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

Item 7 - Before section 86

111.       Item 7 will insert section 86A in existing Part VIII, to provide that a maintenance agreement made, under existing 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)

112.       Item 8 will insert subsection 86(1A), to provide that a maintenance agreement made, under existing 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 purpose of this is the same as that for section 86A.

Item 9 - After subsection 87(1)

113.       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.

114.       Item 9 will insert 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

115.       Item 10 will insert new Part VIIIA - Financial agreements that will provide for financial agreements, about some or all property, maintenance and financial resources, to be made and will provide for the mechanism to make such agreements binding.

Section 90A - Definitions

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

Section 90B - Financial agreements before marriage

117.       Subsection 90B(1) will provide 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).

118.       Subsection 90B(2) will provide 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 will also be 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.

119.       Subsection 90B(3) will provide that a financial agreement may also deal with matters other than those outlined in subsection 90B(2).

120.       Subsection 90B(4) will provide that a financial agreement made under subsection 90B(1) may vary or terminate an existing financial agreement.

Section 90C - Financial agreements during marriage

121.       Section 90C will provide for the making of financial agreements during marriage, in the same terms and about the same matters as financial agreements before marriage.

122.       In addition, subsection 90C(4) will provide that as well as varying or terminating a financial agreement made under subsection 90C(1), a financial agreement made under subsection 90C(1) can also vary or terminate a financial agreement made before marriage, under subsection 90B(1).

Section 90D - Financial agreements after dissolution of marriage

123.       Section 90D will provide 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.

124.       In addition, subsection 90D(4) will provide that as well as varying or terminating a financial agreement made under subsection 90D(1), a financial agreement made under subsection 90D(1) can also vary or 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

125.       Subsection 90E will provide, 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

126.       Subsection 90F(1) will provide that if a provision in a financial agreement about maintenance would have the effect of making a person reliant on social security payments rather than on maintenance payments, the court will retain its jurisdiction under the Act to make a maintenance order.  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.

127.       Subsection 90F(2) will clarify 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

128.       Subsection 90G(1) will provide that a financial agreement is binding on the parties to the agreement if:

•        the agreement is signed by both parties; and

•        the agreement contains certification to the effect that each of the parties to the agreement has been provided with either, or both, legal advice as to the legal effect of the agreement or financial advice as to the financial effect of the agreement.  The legal advice must have been provided by a legal practitioner.  The financial advice must have been provided by a prescribed financial adviser.  The Regulations will prescribe the financial advisers who will be able to provide the necessary financial advice; and

•        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.

129.       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 has not been dealt with by a binding financial agreement between them.

130.       Subsection 90G(2) will provide 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

131.       Section 90H will provide that a binding financial agreement will continue to operate despite the death of a party to the agreement.  It will provide 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

132.       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 will be able to make a written termination agreement that has the effect of terminating an existing agreement, without making another financial agreement.

133.       A termination agreement will be binding on the parties in the same circumstances as provided for financial agreements, in subsection 90F(1).

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

134.       Section 90K will provide for the circumstances in which a court may set aside a financial agreement or termination agreement, and is in essentially similar terms to existing subsection 87(8) that provides for the revocation of an approval of a maintenance agreement made under section 87.

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

•        the agreement was obtained by fraud;

•        the agreement is void, voidable or unenforceable; or

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

136.       In addition, a court will be able to set aside a financial agreement if the court is satisfied that exceptional circumstances, relating to the care, welfare and development of a child of the marriage, have arisen 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.

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

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

138.       Section 90L will provide, 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.



SCHEDULE 3 - OTHER AMENDMENTS

Child Support (Assessment) Act 1989

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

139.      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 .

140.      Item 1 will insert paragraph 84(7)(c) that will provide 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)

141.      Item 2 will remove a reference to Part XIIIA of the Family Law Act 1975 and insert references to Division 13A of Part VII and Part XIIIB of the Family Law Act 1975 as a consequence of the amendments in Schedule 1.

Item 3 - Subsection 100(2)

142.      Item 3 will remove a reference to Part XIIIA of the Family Law Act 1975 and insert references to Division 13A of Part VII and Part XIIIB of the Family Law Act 1975 as a consequence of the amendments in Schedule 1.

Item 4 - After subsection 102(3)

143.      Existing section 102 provides for appeals from decisions made under the Child Support (Assessment) Act 1989.  Item 4 will insert subsections 102(3A) and 102(3B).  Subsection 102(3A) will provide 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.

144.      Subsection 102(3B) will provide that no appeal lies from a decision under subsection 102(3A).  This will mean that it will not be possible to appeal an interlocutory decision of a single Judge to the Full Court.

Child Support (Registration and Collection) Act 1988

Item 5 - After subsection 107(2)

145.      Item 5 will insert subsections 107(2A) and 107(2B), in the same terms as the amendments made, by item 4 of this Schedule, to the Child Support (Assessment) Act 1989 .

Family Law Act 1975

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

146.      Item 4 will repeal the definition, as there will be no approval of arbitrators.  Instead, in order to perform arbitrations under the Act, people will have to meet prescribed qualifications and experience criteria.

Item 7 - Subsection 4(1)

147.      Item 7 will insert 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 )

148.      Item 8 will amend 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 )

149.      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 of individual mediators, as opposed to mediation organisations, this definition is not necessary.

150.      Item 9 will repeal existing paragraph (a) of the definition and substitute a new paragraph (a), which provides that a family and child mediator includes court personnel undertaking family and child mediation.

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

151.      Item 10 will omit a reference to an arbitrator specified by the regulations, consequent upon items 6 and 7.

Item 11 - Paragraph 14E(c)

152.      Item 11 will omit 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)

153.      Item 12 will omit the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 13 - Subsection 19D(2)

154.      Existing subsection 19D(2) provides that the court may make an order for arbitration with or without the consent of the parties.  Item 13 will repeal existing subsection 19D(2) and substitute 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)

155.      Item 14 will omit the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 15 - After section 19E

156.      Item 15 will insert section 19EA Referral by arbitrator of questions of law to a Family Court and section 19EB Referral by arbitrator of questions of law to the Federal Magistrates Court.

157.      Subsection 19EA(1) will provide 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.

158.      Subsection 19EA(2) will provide 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.

159.      Subsection 19EA(3) will provide 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.

160.      Section 19EB will provide, 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)

161.      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)

162.      Item 17 will insert 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)

163.      Item 18 will remove the reference to the Full Court, consequent upon item 16.

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

164.      Item 19 will replace 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

165.      Item 20 will provide 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

166.      Item 21 will insert section 19FA Review by the Federal Magistrates Court.  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

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

168.      Item 22 will insert a new section 19G Setting aside awards - Family Courts, 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 are based on existing subsection 87(8), which provides for the setting aside of court approved maintenance agreements.  In addition, section 19G will also include where 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.

169.      Item 22 will also insert a section 19GA Setting aside awards - Federal Magistrates Court, in the same terms as section 19G.

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

170.      Item 23 will insert section 19H Fees for arbitration.  Subsection 19H(1) will provide that the arbitrator conducting an arbitration may charge the parties fees for conducting the arbitration.  Subsection 19H(2) will provide that the arbitrator must provide written information about the fees before the commencement of the arbitration.

171.      Item 23 will also insert 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

172.      Item 24 will provide that the amendment made by item 23 will apply in relation to arbitrations that begin after the commencement of that item.

Item 25 - Section 19L

173.      Item 25 will omit the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 26 - Section 19M

174.      Item 26 will make an amendment to existing section 19M, consequent upon items 6 and 7.

Item 27 - Section 19P

175.      Item 27 will  make an amendment to existing section 19P, consequent upon item 9.

Item 28 - Subsection 19Q(3)

176.      Item 28 will omit the reference “approved” in relation to arbitrators, consequent upon items 6 and 7.

Item 29 - Subsection 22(2AC)

177.      Item 29 will omit the reference to the number of judges who may be assigned to the Appeal Division and provide that the membership of that Division can be set by regulation.

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

178.      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 31 - At the end of section 26B

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

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

180.       Item 32 will correct 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)

181.      Item 33 will add 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

182.      Item 34 will insert 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)

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

Item 36 - Subsection 44(3)

184.      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 will enable 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)

185.      In a recent case, an appeal was disallowed on the basis that there had been no application to the court for leave to institute the proceedings outside time.  This  meant that applicant had to make another application seeking leave of the court to institute proceedings out of time and once this had been granted, recommence the substantive appeal.  This caused severe hardship, and additional financial burden, to the applicant.  To ensure that such a situation will not arise again, item 37 will insert a new sentence to provide that the court will be able to grant leave at any time, even if the proceedings have already commenced.

Item 38 - After subsection 44(3)

186.      Item 38 will insert 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 39 - At the end of section 45

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

188.      Item 39 will insert 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

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

Item 41 - Paragraph 46(1)(b)

190.       Item 41 will correct an error resulting from the commencement of amendments to subsection 46(1).

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

192.       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.

193.       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:

1.      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

2.      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.

194.       For the subsection 46(1) to operate effectively the amendments provided in the 1988 Act should have come into operation before those contained in the 1987 Act.  Unfortunately, the actual order of the Proclamations commencing the various amendments produced an absurd result which 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.

195.       There do not appear to have been any repercussions from the error.  Practitioners are unlikely to have been disadvantaged because, although the error appears in the official reprint and on Window on the Law, it does not appear to have been picked up by Family Law services.  For example, the CCH copy of the Family Law Act , the CCH Australian Family Law Court Handbook and Butterworths Australian Family Law Legislation contain the sub-section as it was after the April 1988 substitution brought about by the 1987 Act and ignore the July 1988 substitution contained in the 1988 Act.  Additionally, the substance of the provisions does not appear to have been the subject of any court proceedings requiring written judgment.

196.       Item 41 will correct this error and ensure 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)

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

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

198.       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.

199.       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 and family and child counsellors in this regard.

200.       Item 43 will insert 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)

201.       Item 44 will insert 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 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)

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

Item 46 - After paragraph 66A(d)

203.       Existing section 66A sets out the matters covered by Division 7 - Child maintenance orders of Part VII of the Act.

204.       Item 46 will insert 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

205.       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.

206.       Item 47 will add 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)

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

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

208.       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. 

209.       Item 49 will add 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 after 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)

210.       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.

211.       Item 50 will amend 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)

212.       Item 51 will insert 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)

213.       Item 52 amends subsection 66S(2) consequent upon the amendment to paragraph  66S(1)(b) made by item 47.

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

214.       Item 53 amends paragraph 66S(2)(c), consequent upon the insertion of subsection 66S(1A) made by item 48.

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

215.       Item 54 will insert new Subdivision EA of Division 7 of Part VII to provide for the variation of maintenance of certain children.

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

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

218.       Subsection 66SA(3) will provide 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.

219.       Subsection 66SA(4) will provide 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.

220.       Subsection 66SA(5) will provide 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.

221.       Subsection 66SA(6) will clarify 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

222.       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 a maintenance 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.

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

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

225.       Subsection 66VA(3) will provide 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

226.       Item 56 will provide that item 55 only applies to child maintenance orders made after the commencement of item 55.

Item 57 - After paragraph 67K(c)

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

Item 58 - Subsection 67M(2)

228.       Existing section 67M provides for the making of a location order, other than a Commonwealth information order.  Item 58 will extend 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)

229.       Existing section 67N provides for the making of a Commonwealth information order.  Item 59 will extend 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)

230.       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.

231.       Item 60 will amend 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)

232.       Item 61 will ensure that paragraph 67Q(g) is grammatically correct, consequent upon item 60.

Item 62 - Section 67Q (note)

233.       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 will deal with the use of reasonable force in the arrest of a person, as a consequence of item 96.  Note 2 will clarify 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)

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

Item 64- At the end of section 67W

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

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

236.       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 will add paragraph 67ZA(1)(d) to provide that an arbitrator employed by the court is similarly obliged.

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

237.       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.

238.       Item 66 will add 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)

239.       Item 67 will add 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)

240.       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.

241.       Item 68 will insert 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.

242.       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.

243.       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) will overturn the effect of this decision and restrict the availability of separate representation in these proceedings to exceptional cases.

Item 69 - After section 69V

244.       Existing section 69V provides for 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.

245.       Item 69 will insert 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 )

246.       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 will insert 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)

247.       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.

248.       Item 71 will insert 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)

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

Item 73 - At the end of section 70N

250.       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.

251.       Item 73 will insert new subsection 70N(2) that will provide 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

252.       Item 74 will repeal these sections, as they are effectively being moved into Part XIII.

Item 75 - Transitional

253.       Item 75 will provide that anything done under section 84 will be taken to have been done under section 106A.  Item 75 will also provide 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)

254.       Subsection 94(2) provides for the powers of a Full Court on appeal.  These are that the court can affirm, reverse or vary the decision the subject of the appeal and make such decree or decision as, in the opinion of the court, ought to have been made in the first instance.

255.       Item 76 will insert subsections 94(2A), (2B), (2C), (2D) and (2E).

256.      Subsection 94(2A) will provide that an appeal decision, if the Full Court is of the opinion that it does not raise any question of general principle, may be given in short form.  The Rules of Court may make provision for this short form.

257.      Subsection 94(2B) will provide 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.

258.      Subsection 94(2C) will provide that a Judge of the Appeal Division of the Family Court, or any other single Judge if an Appeal Division Judge is not available, may hear and determine applications to reinstate an appeal that was taken to have been abandoned.

259.      Subsection 94(2D) will provide 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 hear and determine applications to stay an order of the Full Court.

260.      Subsection 94(2E) will provide that no appeal lies from a decision under subsections 94(2B), 94(2C) or 94(2D).  This will mean that it will not be possible to appeal an interlocutory decision of a single Judge to the Full Court.

Item 77 - Subsection 94AA(4)

261.       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. 

262.       Item 77 will repeal 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 Bill 1999.

Item 78 - Subsection 98A(2)

263.       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.

264.       Item 78 will amend subsection 98A(2) to remove that 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)

265.       Item 79 will insert 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.

266.       Item 79 will also insert subsection 98A(2B) that will provide that proceedings under subsections 98A(1) or (2) may be heard in chambers.

Item 80 - After section 105

267.       Item 80 will insert section 106 Maintenance orders - more than 12 months in arrears.  Section 106 will remove 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.

268.       Item 80 will also insert section 106A Execution of instruments by order of the court and section 106B Transactions to defeat claims.  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 109A

269.       Item 81 will insert a new heading Part XIIIAA - International conventions, international agreements and international enforcement.

Item 82 - After section 110

270.       Item 82 will insert 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.

271.       Item 82 will also insert 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

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

Item 84 - Section 111

273.       Existing section 111 provides that regulations may make such provision as is necessary to enable the performance of the obligations of Australian 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.

274.       Item 84 will insert “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

275.       For similar reasons as outlined for item 84, item 85 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 Recognition and Enforcement of Decisions Relating to Maintenance Obligations as it sees fit.

Item 86 - Subsection 111B(1)

276.       For similar reasons as outlined for item 84, item 86 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 Civil Aspects of International Child Abduction as it sees fit.

Item 87 - After subsection 111B(1)

277.       Item 87 will insert subsection 111B(1A) to enable regulations to be made about the onus of establishing whether a child should be returned to the child’s country of habitual residence, 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 to the child’s country of habitual residence.

278.       Item 87 will also insert subsection 111B(1B) to enable regulations to be made to provide that a child’s objection to returning to their country of habitual residence 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 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 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.

279.       Item 87 will also insert 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 will ensure 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.

280.       Item 87 will also insert 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.

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

Item 88 - Subsection 111B(4)

282.       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 will repeal existing subsection 111B(4) and will substitute new subsection 111B(4), in order to clarify these implications.

Item 89 - After subsection 111B(5)

283.       Item 89 will insert subsection 111B(5A) that will clarify 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)

284.       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)

285.       Item 91 will insert 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

286.       Item 92 will insert new section 111D Regulations may provide for rules of evidence.  Section 111D will provide 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.

287.       Subsection 111D(2) will clarify 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

288.       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 - Miscellaneous, as provided for by item 109.  Item 93 will repeal existing section 112.

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

289.       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.

290.       Item 94 will add 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)

291.       Item 95 will add 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 )

292.       Item 96 will repeal the existing definition and substitute 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)

293.       Item 97 will make a correction to a reference, consequent upon item 98.

Item 98 - After section 117

294.       Item 98 will insert section 117AA Costs in proceedings relating to overseas enforcement and international Conventions.

295.       Subsection 117AA(1) will provide 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 will ensure 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.

296.       Subsection 117AA(2) will make similar provision for a costs order for a part of the proceedings.

297.       Subsection 117AA(3) will make 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)

298.       Item 99 will insert  subsection 117C(2A) that will provide 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)

299.       Item 100 will extend 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)

300.       Item 101 will extend 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)

301.       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 .

302.       Item 102 will provide, 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)

303.       Item 103  will correct 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)

304.       Item 104 will insert 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)

305.       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.

306.       Item 105 will insert subparagraph 121(9)(f)(ia) that will provide 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)

307.       Existing subsection 121(10) provides that specific Rules of Court may be made in relation to the listing of proceedings.  Item 106 will insert 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)

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

309.       Item 107 will repeal existing subsection 121(11) and insert new subsection 121(11) that will provide 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.

310.       Subsection 121(11) will also define electronic means broadly, to encompass existing and future means of transmitting information.

Item 108 - After section 122

311.       There has been some confusion as to the level of force that may be used in arresting persons under the Act.  Item 108 will insert section 122AA Use of reasonable force in arresting persons.  Section 122AA will provide 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

312.       Item 109 will insert section 122B Arrangements with States and Territories, 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 will repeal the existing provision as the provision is being relocated, in total, to Part XV - Miscellaneous.

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

313.      Item 110 will omit the references to “approved” in relation to arbitrators, consequent upon items 6 and 7.

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

314.       Item 111 will amend subparagraph 123(1)(sf)(ii), consequent upon item 22.

Item 112 - At the end of section 123

315.       Item 112 will add a note to the end of section 123, cross referencing to other rule making power provisions.

Item 113 - Paragraph 125(1)(ba)

316.       Item 113 will omit the references to “approved” in relation to arbitrators, consequent upon items 6 and 7.

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

317.       Item 114 will insert 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)

318.       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.

319.       Item 115 will remove the ability to prescribe fees in respect of arbitration, consequent upon item 23.

Item 116 - At the end of section of section 125

320.       Item 116 will insert 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.