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Civil Law and Justice Legislation Amendment Bill 2018

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2016-2017-2018

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Civil Law and Justice Legislation Amendment Bill 2017

 

 

(1)     Schedule  6 , item  1 , page 14 (before line 7) , before the definition of conveyance in subsection  4(1) , insert:

bankrupt : see subsection (6).

[bankruptcy]

(2)     Schedule  6 , page 14 (after line 20) , after item  3 , insert:

3A  At the end of section 4

Add:

             (6)  A reference in this Act to a person, being a party to a marriage or a party to a de facto relationship, who is bankrupt includes a reference to a person:

                     (a)  who has been discharged from bankruptcy; and

                     (b)  whose property remains vested in the bankruptcy trustee under the Bankruptcy Act 1966 .

Note:          This Act might refer to “bankrupt” or a “bankrupt party”.

3B  Application of amendments

Subsection 4(6) of the Family Law Act 1975 , as inserted by this Part, applies in relation to proceedings instituted before, on or after the commencement of this Part.

[bankruptcy]

(3)     Schedule  6 , items  19 and 20 , page 18 (lines 5 to 12) , to be opposed.

[family consultants]

(4)     Schedule  6 , item  35 , page 20 (line 21) , omit paragraph  122A ( 1 )( h ).

[making arrests]

(5)     Schedule 6, item 35, page 20 (line 24), at the end of paragraph 122A(1)(i), add “and who is in the Australian Border Force (within the meaning of that Act)”.

[making arrests]

(6)     Schedule  6 , item  44 , page 24 (lines 9 to 12) , omit the item, substitute:

44  Section 65Y

Repeal the section, substitute:

65Y   Obligations if certain parenting orders have been made: taking or sending a child outside Australia

             (1)  A person commits an offence if:

                     (a)  a parenting order to which this Subdivision applies is in force in relation to a child; and

                     (b)  the person takes or sends the child from Australia to a place outside Australia; and

                     (c)  the child is not taken or sent from Australia to a place outside Australia:

                              (i)  with the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made; or

                             (ii)  in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the parenting order; and

                     (d)  the person:

                              (i)  is or was a party to the proceedings in which the parenting order was made; or

                             (ii)  is acting on behalf of, or at the request of, a person who is or was a party to the proceedings in which the parenting order was made.

Note:          The ancillary offence provisions of the Criminal Code , including section 11.1 (attempts), apply in relation to the offence created by this section.

Penalty:  Imprisonment for 3 years.

Exception

             (2)  Subsection (1) does not apply if:

                     (a)  the person (whether or not the person is or was the party to the proceedings) takes or sends the child from Australia to a place outside Australia because the person believes the conduct is necessary to prevent family violence; and

                     (b)  the conduct is reasonable in the circumstances as the person perceives them.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

[consent or compliance with court order; fleeing family violence]

(7)     Schedule  6 , item  45 , page 24 (line 17) , before “ A person ”, insert “ (1) ”.

[fleeing family violence]

(8)     Schedule  6 , item  45 , page 25 (lines 1 to 4) , omit paragraph  65YA ( c ), substitute:

                     (c)  the person retains the child outside Australia otherwise than in accordance with a consent or order of a kind mentioned in paragraph (b) (whether or not the person took or sent the child as mentioned in that paragraph); and

[consent or compliance with court order]

(9)     Schedule  6 , item  45 , page 25 (after line 13) , at the end of section  65YA , add:

Exception

             (2)  Subsection (1) does not apply if:

                     (a)  the person (whether or not the person was the party to the proceedings) retains the child as mentioned in paragraph (1)(c) because the person believes the conduct is necessary to prevent family violence; and

                     (b)  the conduct is reasonable in the circumstances as the person perceives them.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

[fleeing family violence]

(10)   Schedule  6 , item  46 , page 25 (lines 14 to 18) , omit the item, substitute:

46  Section 65Z

Repeal the section, substitute:

65Z   Obligations if proceedings for the making of certain parenting orders are pending: taking or sending a child outside Australia

             (1)  A person commits an offence if:

                     (a)  proceedings (the Part VII proceedings ) are pending for the making of a parenting order to which this Subdivision applies in relation to a child; and

                     (b)  the person takes or sends the child from Australia to a place outside Australia; and

                     (c)  the child is not taken or sent from Australia to a place outside Australia:

                              (i)  with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or

                             (ii)  in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings; and

                     (d)  the person is:

                              (i)  a party to the Part VII proceedings; or

                             (ii)  acting on behalf of, or at the request of, a person who is a party to the Part VII proceedings.

Note:          The ancillary offence provisions of the Criminal Code , including section 11.1 (attempts), apply in relation to the offence created by this section.

Penalty:  Imprisonment for 3 years.

Exception

             (2)  Subsection (1) does not apply if:

                     (a)  the person (whether or not the person is the party to the Part VII proceedings) takes or sends the child from Australia to a place outside Australia because the person believes the conduct is necessary to prevent family violence; and

                     (b)  the conduct is reasonable in the circumstances as the person perceives them.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

[consent or compliance with court order; fleeing family violence]

(11)   Schedule  6 , item  47 , page 25 (line 24) , before “ A person ”, insert “ (1) ”.

[fleeing family violence]

(12)   Schedule  6 , item  47 , page 26 (lines 4 to 7) , omit paragraph  65ZAA ( c ), substitute:

                     (c)  the person retains the child outside Australia otherwise than in accordance with a consent or order of a kind mentioned in paragraph (b) (whether or not the person took or sent the child as mentioned in that paragraph); and

[consent or compliance with court order]

(13)   Schedule  6 , item  47 , page 26 (after line 14) , at the end of section  65ZAA , add:

Exception

             (2)  Subsection (1) does not apply if:

                     (a)  the person (whether or not the person is the party to the Part VII proceedings) retains the child as mentioned in paragraph (1)(c) because the person believes the conduct is necessary to prevent family violence; and

                     (b)  the conduct is reasonable in the circumstances as the person perceives them.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

[fleeing family violence]

(14)   Schedule  6 , page 26 (after line 14) , after item  47 , insert:

47A  Subsections 65ZA(1) to (3)

Repeal the subsections, substitute:

             (1)  A person (the first person ) commits an offence if:

                     (a)  a parenting order to which this Subdivision applies is in force in relation to a child; and

                     (b)  the first person is a captain, owner or charterer of an aircraft or vessel; and

                     (c)  another person (the carer ) in whose favour the parenting order was made has served on the first person a statutory declaration that:

                              (i)  relates to the parenting order; and

                             (ii)  complies with subsection (4); and

                     (d)  the statutory declaration was made by the carer not earlier than 7 days before the date of service; and

                     (e)  the first person permits the child to leave a place in Australia in the aircraft or vessel; and

                      (f)  the destination of the aircraft or vessel is outside Australia; and

                     (g)  the child does not leave:

                              (i)  in the company, or with the consent in writing (authenticated as prescribed), of the carer; or

                             (ii)  in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the parenting order.

Penalty:  60 penalty units.

             (2)  Subsection (1) does not apply if the first person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

47B  Subsections 65ZB(1) to (3)

Repeal the subsections, substitute:

             (1)  A person (the first person ) commits an offence if:

                     (a)  proceedings (the Part VII proceedings ) are pending for the making of a parenting order to which this Subdivision applies in relation to a child; and

                     (b)  the first person is a captain, owner or charterer of an aircraft or vessel; and

                     (c)  a party (the carer ) to the Part VII proceedings has served on the captain, owner or charterer a statutory declaration that:

                              (i)  relates to the Part VII proceedings; and

                             (ii)  complies with subsection (4); and

                     (d)  the statutory declaration was made by the carer not earlier than 7 days before the date of service; and

                     (e)  the first person permits the child to leave a place in Australia in the aircraft or vessel; and

                      (f)  the destination of the aircraft or vessel is outside Australia; and

                     (g)  the child does not leave:

                              (i)  in the company, or with the consent in writing (authenticated as prescribed), of the carer; or

                             (ii)  in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.

Penalty:  60 penalty units.

             (2)  Subsection (1) does not apply if the first person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

47C  Subsection 65ZC(3)

Omit “65ZA(2) or 65ZB(2)”, substitute “65ZA(1) or 65ZB(1)”.

[consent or compliance with court order]

(15)   Schedule  6 , item  52 , page 27 (lines 7 and 8) , omit “ sections 65Y, 65Z and ”, substitute “ section ”.

[consent or compliance with court order]

(16)   Schedule  6 , page 27 (after line 8) , after item  52 , insert:

52A  Saving of regulations

Regulations made for the purposes of paragraphs 65Y(2)(a), 65Z(2)(a), 65ZA(3)(a) and 65ZB(3)(a) of the Family Law Act 1975 that are in force immediately before the commencement of this item are taken, after that commencement, to have been made for the purposes of subparagraphs 65Y(1)(c)(i), 65Z(1)(c)(i), 65ZA(1)(g)(i) and 65ZB(1)(g)(i) of that Act as amended by this Division.

[saving of regulations]

(17)   Schedule  8 , page 38 (after line 17) , after item  4 , insert:

4A  Subsection 15T(7) (heading)

Repeal the heading, substitute:

Repeal and disallowance of Act or instrument

[expiry and lapsing of legislation]