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Family Law Amendment Bill 2000

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1998-1999-2000

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

FAMILY LAW AMENDMENT BILL 2000

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 



TABLE OF CONTENTS

 

Page

 

Outline of Amendments                                                                1

 

Financial Impact Statement                                                          1

 

Regulation Impact Statement                                                        2

 

Notes on Amendments                                                                   3

 

 

 



AMENDMENTS OF THE FAMILY LAW AMENDMENT BILL 2000

 

OUTLINE OF AMENDMENTS

 

 

The Government amendments to the Family Law Amendment Bill 2000 (the Bill) respond to concerns about the need for greater flexibility in relation to the operation of the three stage enforcement regime dealing with orders relating to children.  The amendments also make changes to more clearly reflect the policy intention of a number of the amendments made by the Bill.  In addition there are a number of minor and technical amendments.  The objectives of the Bill are set out in the Explanatory Memorandum to the Bill introduced into the Senate on 3 October.

 

These amendments will:

 

·         Provide the court dealing with an application alleging contravention of an order relating to children at stage 2 of the three stage process, with an option to adjourn the proceedings to allow for either party to apply for a further parenting order.  Before the court grants such an adjournment it must consider a range of matters.  An application for a further parenting order may be made to either the Family Court or the Federal Magistrates Court.  A court dealing with such an application must do so as soon as practicable.

 

·         Clarify that the onus of proof for establishing whether a reasonable excuse exists for an alleged contravention lies with the respondent.  The Bill provides that a person against whom a contravention of an order affecting children is alleged may be excused that contravention if there is a reasonable excuse. The Bill is silent as to who has to prove that there is a reasonable excuse.  The amendments will make it clear that the person claiming to have the reasonable excuse bears the onus.

 

·         Provide the court with an additional enforcement option being that an  order may be made that a financial agreement or parts of it be enforced as if it were an order of the court.  This will allow for the provisions of Order 33 of the Family Court Rules to apply to the enforcement of agreements, which will allow for financial agreements to be enforced in the usual way that other orders are enforced, for example, by seizure and sale of personal property. 

 

·         Amend the provisions relating to the power of the court to make rules relating to the hearing of dissolution proceedings which involve orders relating to children, without the parties being present.  The amendment makes it clear that the court can only make such rules in relation to applications that have been made by both parties rather than by one party.

 

·         The Bill also makes a number of minor and technical amendments to correct numbering errors and to make the effect of some amendments clearer.

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments do not have any financial impact.

 

REGULATION IMPACT STATEMENT

 

The Explanatory Memorandum for the Bill indicates that there is not expected to be any impact on business from the amendments made by Schedule 1 or Schedule 3 to the Bill.  The amendments made to Schedule 1 and 3 do not have a significant impact on the effect of those provisions. The amendments made to Schedule 2 by this Bill do not have a significant impact on the effect of those provisions.  



NOTES ON AMENDMENTS

 

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

 

AMENDMENT 1

 

1.         This amendment inserts a reference into table item 13A that the court may adjourn proceedings to enable an application for a further parenting order to be made.

 

AMENDMENT 2

 

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

 

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

 

AMENDMENT 3

 

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

 

AMENDMENTS 4 AND 5

 

5.    These amendments relate to stage 2 of the enforcement regime for orders affecting children.  The amendments make it clear that the onus of establishing a reasonable excuse for an alleged contravention lies with the respondent.

 

AMENDMENT 6

 

6.    This amendment provides that at stage 2 of the three stage compliance regime for orders affecting children, the court dealing with proceedings relating to the alleged contravention may adjourn proceedings to allow either or both parties to apply for a further parenting order.  Any order so made may discharge, vary or suspend the primary order.  The reason for adding this procedure is because the contravention may have come about because the parenting order was not the right order.  In these circumstances it is better to put the right order in place.

 

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

 

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

 

AMENDMENTS 7 AND 8

 

9.    These amendments relate to stage 3 of the enforcement regime for orders affecting children and make the same changes as do amendments 4 and 5 to stage 2 of the regime. 

 

AMENDMENT 9

 

10.  Amendment 9 corrects a reference to Part 7 of the Child Support (Assessment) Act 1989

 

AMENDMENT 10

 

11.  This amendment preserves Part XIIIA (Sanctions for failure to comply with orders and contempt of court) for any order made under that Part prior to the commencement of the new Division 13A.  This is to remove any doubt as to the ongoing validity of those orders. 

 

AMENDMENT TO SCHEDULE 2 - FINANCIAL AGREEMENTS

 

AMENDMENTS 11 and 12

 

12.  These amendments combine to add an additional paragraph to the new section 90KA.  That new section deals with the powers of the court to determine the validity, enforceability and effect of financial agreements and agreements that terminate financial agreements.  The additional subparagraph provides an equivalent provision to that already in existence in relation to maintenance agreements under paragraph 87(11)(c) of the Act.  The amendments provide that the court will be empowered to order that a financial agreement or parts of it may be enforced as if it were an order of the court.  This will allow for example for the provisions of Order 33 of the Family Court Rules to apply to the enforcement of agreements, which will allow for agreements to be enforced in the usual way that other orders are enforced, for example by seizure and sale of personal property. 

 

AMENDMENT 13

 

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

 

SCHEDULE 3 - OTHER AMENDMENTS

 

AMENDMENTS 14 AND 15

 

14.  These amendments correct references to the heading of the new Division 13A of Part VII that are made in the Child Support (Assessment) Act 1989 .

 

AMENDMENT 16

 

15.  This amendment is a technical amendment to make it clear that the changes made by the Bill to paragraph 68C(1) are meant to be inserted after the first mentioned ‘by’.

 

AMENDMENT 17

16.       The Bill adds a new subsection (2A) to section 98A of the Act.  Section 98A allows for dissolutions to be dealt with in chambers without the parties being present, where at least one party applies for that to occur and the other party does not object.  It was the intention that the new subsection (2A) only apply to subsection 98A(2) which deals with applications which were lodged jointly by the parties.  As currently drafted the provision may also apply to subsection 98A(1) which deals with applications by one party only.  This amendment makes it clear that the changes made by this new subsection apply only to applications made jointly by both parties.  

 

AMENDMENT 18

 

17.  This amendment corrects a numbering error to make it clear that the new Part XIIIAA inserted into the Family Law Act by the Bill is inserted after section 109B rather than section 109A.  Section 109B was added to the Family Law Act by the Federal Magistrates (Consequential Amendments) Act 1999 .