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This is a Bill, not an Act. For current law, see the Acts databases.


FAMILY LAW AMENDMENT BILL 2005

2004-2005
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Family Law Amendment Bill 2005
No. , 2005
(Attorney-General)
A Bill for an Act to amend the Family Law Act
1975 and the Bankruptcy Act 1966, and for related
purposes
i Family Law Amendment Bill 2005 No. , 2005
Contents
1
Short title ......................................................................................1
2
Commencement .............................................................................1
3
Schedule(s)....................................................................................2
Schedule 1--Amendments
3
Part 1--Parenting compliance regime
3
Family Law Act 1975
3
Part 2--Costs and offers of settlement
5
Family Law Act 1975
5
Part 3--Suspension of sentences of imprisonment
7
Family Law Act 1975
7
Part 4--Enforcement (removal of information procedure)
8
Family Law Act 1975
8
Part 5--Private arbitration
9
Family Law Act 1975
9
Part 6--Change of venue
10
Family Law Act 1975
10
Part 7--Definition of disposition
11
Family Law Act 1975
11
Part 8--Appeals
12
Family Law Act 1975
12
Part 9--Transfer of matters from State courts of summary
jurisdiction to the Federal Magistrates Court
14
Family Law Act 1975
14
Part 10--Terminology relating to divorce and principal relief
17
Family Law Act 1975
17
Part 11--Leave to appeal
32
Family Law Act 1975
32
Family Law Amendment Bill 2005 No. , 2005 ii
Part 12--Power to dismiss appeal
34
Family Law Act 1975
34
Part 13--Appeals to High Court
35
Family Law Act 1975
35
Part 14--Recovery of amounts paid under maintenance orders
36
Family Law Act 1975
36
Part 15--Powers of judicial registrars
38
Family Law Act 1975
38
Part 16--Jurisdiction of Family Court of Western Australia
39
Bankruptcy Act 1966
39
Family Law Amendment Bill 2005 No. , 2005 1
A Bill for an Act to amend the Family Law Act
1
1975 and the Bankruptcy Act 1966, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Family Law Amendment Act 2005.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Family Law Amendment Bill 2005 No. , 2005
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1,
Parts 1 to 15
The 28th day after the day on which this
Act receives the Royal Assent.
3. Schedule 1,
Part 16
At the same time as Schedule 1 to the
Bankruptcy and Family Law Legislation
Amendment Act 2005 commences.
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Parenting compliance regime Part 1
Family Law Amendment Bill 2005 No. , 2005 3
1
Schedule 1--Amendments
2
Part 1--Parenting compliance regime
3
Family Law Act 1975
4
1 At the end of section 65F
5
Add:
6
(4) In this section:
7
proceedings for a parenting order includes:
8
(a) proceedings for the enforcement of a parenting order; and
9
(b) any other proceedings in which a contravention of a parenting
10
order is alleged.
11
2 Subsection 65LA(3)
12
Insert:
13
proceedings for a parenting order includes:
14
(a) proceedings for the enforcement of a parenting order; and
15
(b) any other proceedings in which a contravention of a parenting
16
order is alleged.
17
3 After Subdivision A of Division 13A of Part VII
18
Insert:
19
Subdivision AA--Court's powers where contravention without
20
reasonable excuse not established
21
70NEB Court's power to vary parenting order
22
(1) The court may make an order varying a parenting order if:
23
(a) proceedings in relation to the parenting order are brought
24
before a court having jurisdiction under this Act and it is
25
alleged in those proceedings that a person (the respondent)
26
committed a contravention of the primary order; and
27
(b) either:
28
Schedule 1 Amendments
Part 1 Parenting compliance regime
4 Family Law Amendment Bill 2005 No. , 2005
(i) the court is not satisfied that the respondent has
1
committed a contravention of the parenting order; or
2
(ii) the court is satisfied that the respondent has committed a
3
contravention of the parenting order but the respondent
4
proves that the respondent had a reasonable excuse for
5
the contravention.
6
(2) Subsection (1) applies whether the parenting order is made before or
7
after the commencement of this Subdivision.
8
4 Application
9
The amendments made by this Part apply to:
10
(a) contraventions, and alleged contraventions, of parenting
11
orders (whether occurring before, at or after the
12
commencement of this Part); and
13
(b) proceedings in which it is alleged that a person committed a
14
contravention of a parenting order (whether those proceedings
15
are commenced before, at or after the commencement of this
16
Part).
17
Amendments Schedule 1
Costs and offers of settlement Part 2
Family Law Amendment Bill 2005 No. , 2005 5
1
Part 2--Costs and offers of settlement
2
Family Law Act 1975
3
5 Paragraph 117(2A)(f)
4
Omit ", in accordance with section 117C or otherwise,".
5
6 Section 117C
6
Repeal the section, substitute:
7
117C Offers of settlement
8
(1) This section applies to proceedings under this Act other than the
9
following proceedings:
10
(a) proceedings under Part VI;
11
(b) proceedings under Division 6, 9 or 13 of Part VII;
12
(c) proceedings to enforce a decree or injunction made under
13
Division 6, 9 or 13 of Part VII.
14
(2) If:
15
(a) a party to proceedings to which this section applies makes an
16
offer to the other party to the proceedings to settle the
17
proceedings; and
18
(b) the offer is made in accordance with any applicable Rules of
19
Court;
20
the fact that the offer has been made, or the terms of the offer, must
21
not be disclosed to the court in which the proceedings are being
22
heard except for the purposes of the consideration by the court of
23
whether it should make an order as to costs under subsection 117(2)
24
and the terms of any such order.
25
(3) A judge of the court is not disqualified from sitting in the
26
proceedings only because the fact that an offer has been made is,
27
contrary to subsection (2), disclosed to the court.
28
7 Application
29
Schedule 1 Amendments
Part 2 Costs and offers of settlement
6 Family Law Amendment Bill 2005 No. , 2005
The amendments made by this Part apply to offers to settle proceedings
1
that are made on or after the commencement of this Part.
2
Amendments Schedule 1
Suspension of sentences of imprisonment Part 3
Family Law Amendment Bill 2005 No. , 2005 7
1
Part 3--Suspension of sentences of imprisonment
2
Family Law Act 1975
3
8 After subsection 70NO(4)
4
Insert:
5
(4A) A court that sentences a person to imprisonment under paragraph
6
70NJ(3)(e) may:
7
(a) suspend the sentence upon the terms and conditions
8
determined by the court; and
9
(b) terminate a suspension made under paragraph (a).
10
9 After subsection 112AE(4)
11
Insert:
12
(4A) A court that sentences a person to imprisonment under paragraph
13
112AD(2)(d) may:
14
(a) suspend the sentence upon the terms and conditions
15
determined by the court; and
16
(b) terminate a suspension made under paragraph (a).
17
Schedule 1 Amendments
Part 4 Enforcement (removal of information procedure)
8 Family Law Amendment Bill 2005 No. , 2005
1
Part 4--Enforcement (removal of information
2
procedure)
3
Family Law Act 1975
4
10 Subsections 70NN(2) to (7)
5
Repeal the subsections, substitute:
6
(2) If the court (whether or not constituted by the judge or magistrate
7
who made the community service order or required the bond to be
8
entered into in accordance with section 70NM) is satisfied that the
9
person has, without reasonable excuse, failed to comply with the
10
order or bond, the court may take action under subsection (8).
11
11 Subsection 70NN(10)
12
Repeal the subsection.
13
12 Subsections 112AH(2) to (7)
14
Repeal the subsections, substitute:
15
(2) If the court (whether or not constituted by the judge or magistrate
16
who imposed the sentence or made the order) is satisfied that the
17
person has, without reasonable excuse, failed to comply with:
18
(a) the sentence or order; or
19
(b) any requirements made in relation to the sentence or order by
20
or under the applied provisions;
21
the court may take action under subsection (8).
22
13 Subsection 112AH(10)
23
Repeal the subsection.
24
14 Application
25
The amendments made by this Part apply to failures to comply with
26
orders, bonds or sentences that occur on or after the commencement of
27
this Part.
28
Amendments Schedule 1
Private arbitration Part 5
Family Law Amendment Bill 2005 No. , 2005 9
1
Part 5--Private arbitration
2
Family Law Act 1975
3
15 Subsection 4(1)
4
Insert:
5
Part VIIIA proceedings means proceedings in relation to a
6
financial agreement.
7
16 Subsection 4(1)
8
Insert:
9
Part VIIIB proceedings means:
10
(a) proceedings in relation to a superannuation agreement (within
11
the meaning of Part VIIIB); or
12
(b) proceedings in relation to a payment split or payment flag
13
(within the meaning of that Part); or
14
(c) any other proceedings under that Part.
15
17 Subsection 4(1)
16
Insert:
17
section 106A proceedings means proceedings under section 106A.
18
18 Subsection 19E(3) (paragraph (a) of the definition of
19
dispute)
20
Repeal the paragraph, substitute:
21
(a) Part VIII proceedings, Part VIIIA proceedings, Part VIIIB
22
proceedings or section 106A proceedings; or
23
Schedule 1 Amendments
Part 6 Change of venue
10 Family Law Amendment Bill 2005 No. , 2005
1
Part 6--Change of venue
2
Family Law Act 1975
3
19 After section 27
4
Insert:
5
27A Change of venue
6
The Court or a Judge may, at any stage of a proceeding in the
7
Court, direct that the proceeding or a part of the proceeding be
8
conducted or continued at a place specified in the order, subject to
9
such conditions (if any) as the Court or Judge imposes.
10
Amendments Schedule 1
Definition of disposition Part 7
Family Law Amendment Bill 2005 No. , 2005 11
1
Part 7--Definition of disposition
2
Family Law Act 1975
3
20 Subsection 106B(5) (definition of disposition)
4
Repeal the definition, substitute:
5
disposition includes:
6
(a) a sale or gift; and
7
(b) the issue, grant, creation, transfer or cancellation of, or a
8
variation of the rights attaching to, an interest in a company or
9
a trust.
10
21 Subsection 106B(5)
11
Insert:
12
interest:
13
(a) in a company includes:
14
(i) a share in or debenture of the company; and
15
(ii) an option over a share in or debenture of the company
16
(whether the share or debenture is issued or not); and
17
(b) in a trust includes:
18
(i) a beneficial interest in the trust; and
19
(ii) the interest of a settlor in property subject to the trust;
20
and
21
(iii) a power of appointment under the trust; and
22
(iv) a power to rescind or vary a provision of, or to rescind or
23
vary the effect of the exercise of a power under, the trust;
24
and
25
(v) an interest that is conditional, contingent or deferred.
26
22 Application
27
The amendments made by this Part apply to dispositions that occur on or
28
after the commencement of this Part.
29
Schedule 1 Amendments
Part 8 Appeals
12 Family Law Amendment Bill 2005 No. , 2005
1
Part 8--Appeals
2
Family Law Act 1975
3
23 Subsection 94(2D)
4
After "Applications", insert "of a procedural nature, including
5
applications".
6
24 After paragraph 94(2D)(d)
7
Insert:
8
or (e) for an extension of time within which to file an application for
9
leave to appeal; or
10
(f) for security for costs in relation to an appeal; or
11
(g) to reinstate an appeal dismissed under a provision of the Rules
12
of Court; or
13
(h) to adjourn the hearing of an appeal; or
14
(i) to vacate the hearing date of an appeal; or
15
(j) to expedite the hearing of an appeal;
16
25 Subsection 94AAA(10)
17
After "Applications", insert "of a procedural nature, including
18
applications".
19
26 After paragraph 94AAA(10)(d)
20
Insert:
21
or (e) for an extension of time within which to file an application for
22
leave to appeal; or
23
(f) for security for costs in relation to an appeal; or
24
(g) to reinstate an appeal dismissed under a provision of the Rules
25
of Court; or
26
(h) to adjourn the hearing of an appeal; or
27
(i) to vacate the hearing date of an appeal; or
28
(j) to expedite the hearing of an appeal;
29
27 After section 94AAA
30
Amendments Schedule 1
Appeals Part 8
Family Law Amendment Bill 2005 No. , 2005 13
Insert:
1
94AAB Appeals, and applications for leave, without oral hearing
2
(1) Subject to subsection (2), an appeal under section 94 or 94AAA
3
may be dealt with without an oral hearing if all the parties to the
4
appeal consent to the appeal being dealt with in that way.
5
(2) Subsection (1) does not apply to an appeal if the court to which the
6
appeal is made otherwise orders.
7
(3) A consent given under subsection (1) may only be withdrawn with
8
the leave of the court.
9
Schedule 1 Amendments
Part 9 Transfer of matters from State courts of summary jurisdiction to the Federal
Magistrates Court
14 Family Law Amendment Bill 2005 No. , 2005
1
Part 9--Transfer of matters from State courts of
2
summary jurisdiction to the Federal
3
Magistrates Court
4
Family Law Act 1975
5
28 Paragraphs 46(1)(a) and (b)
6
Repeal the paragraphs, substitute:
7
(a) the court must, before proceeding to hear and determine the
8
proceedings, inform the parties that, unless each of them
9
consents to the court hearing and determining the proceedings,
10
the court is required to transfer the proceedings to:
11
(i) the Family Court; or
12
(ii) the Supreme Court of a State or Territory; or
13
(iii) the Federal Magistrates Court; and
14
(b) unless the parties consent to the court hearing and determining
15
the proceedings--the court must transfer the proceedings to:
16
(i) the Family Court; or
17
(ii) the Supreme Court of a State or Territory; or
18
(iii) the Federal Magistrates Court.
19
29 Subsection 46(1B)
20
Repeal the subsection, substitute:
21
(1B) Subject to subsection (1C), if:
22
(a) proceedings referred to in subsection (1) are instituted in a
23
court of summary jurisdiction; and
24
(b) the parties consent to the proceedings being heard and
25
determined by that court;
26
a party is not entitled subsequently to object to the proceedings
27
being so heard and determined.
28
(1C) If the court subsequently gives leave to a party to object to the
29
proceedings being so heard and determined, the court must transfer
30
the proceedings to:
31
(a) the Family Court; or
32
Amendments Schedule 1
Transfer of matters from State courts of summary jurisdiction to the Federal
Magistrates Court Part 9
Family Law Amendment Bill 2005 No. , 2005 15
(b) the Supreme Court of a State or Territory; or
1
(c) the Federal Magistrates Court.
2
30 Subsection 46(2A)
3
Repeal the subsection, substitute:
4
(2A) If:
5
(a) proceedings for a divorce order have been instituted in or
6
transferred to a court of summary jurisdiction; and
7
(b) the proceedings are defended;
8
the court is required to transfer the proceedings to:
9
(c) the Family Court; or
10
(d) the Supreme Court of a State or Territory; or
11
(e) the Federal Magistrates Court.
12
31 Subsection 46(3A)
13
Repeal the subsection, substitute:
14
(3A) If proceedings instituted under this Act, or continued under
15
section 9, are pending in a court of summary jurisdiction, each of
16
the following Courts:
17
(a) the Family Court;
18
(b) the Supreme Court of a State or Territory;
19
(c) the Federal Magistrates Court;
20
may, on the application of a party or of its own motion, order that
21
the proceedings be removed to that Court.
22
32 Subsections 69N(2) and (3)
23
Repeal the subsections, substitute:
24
(2) The court must, before going on to hear and determine the
25
proceedings, inform the parties that, unless each of them consents to
26
the court hearing and determining the proceedings, the court is
27
required to transfer the proceedings to:
28
(a) the Family Court; or
29
(b) a Family Court of a State; or
30
(c) the Supreme Court of the Northern Territory; or
31
(d) the Federal Magistrates Court.
32
Schedule 1 Amendments
Part 9 Transfer of matters from State courts of summary jurisdiction to the Federal
Magistrates Court
16 Family Law Amendment Bill 2005 No. , 2005
(3) If the parties do not consent to the court hearing and determining the
1
proceedings, the court must transfer the proceedings to:
2
(a) the Family Court; or
3
(b) a Family Court of a State; or
4
(c) the Supreme Court of the Northern Territory; or
5
(d) the Federal Magistrates Court.
6
33 Paragraph 69N(5)(b)
7
Repeal the paragraph, substitute:
8
(b) the court may, on its own initiative, transfer the proceedings
9
to:
10
(i) the Family Court; or
11
(ii) a Family Court of a State; or
12
(iii) the Supreme Court of the Northern Territory; or
13
(iv) the Federal Magistrates Court.
14
34 Subsection 69N(6)
15
Repeal the subsection, substitute:
16
(6) If the court subsequently gives leave to a party to object to the
17
proceedings being heard and determined by the court, the court must
18
transfer the proceedings to:
19
(a) the Family Court; or
20
(b) a Family Court of a State; or
21
(c) the Supreme Court of the Northern Territory; or
22
(d) the Federal Magistrates Court.
23
35 Application
24
The amendments made by this Part apply to proceedings initiated before
25
or after the commencement of this Part.
26
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 17
1
Part 10--Terminology relating to divorce and
2
principal relief
3
Family Law Act 1975
4
36 Subsection 4(1) (definition of decree)
5
Repeal the definition, substitute:
6
decree means decree, judgment or order and includes:
7
(a) an order dismissing an application; or
8
(b) a refusal to make a decree or order.
9
37 Subsection 4(1)
10
Insert:
11
divorce means the termination of a marriage otherwise than by the
12
death of a party to the marriage.
13
Note:
Annulment does not involve the termination of a marriage but simply
14
a declaration that a purported marriage is in fact void.
15
38 Subsection 4(1)
16
Insert:
17
divorce or validity of marriage proceedings means:
18
(a) proceedings between the parties to a marriage, or by the
19
parties to a marriage, for:
20
(i) a divorce order in relation to the marriage; or
21
(ii) a decree of nullity of marriage; or
22
(b) proceedings for a declaration as to the validity of:
23
(i) a marriage; or
24
(ii) a divorce; or
25
(iii) the annulment of a marriage;
26
by decree or otherwise.
27
39 Subsection 4(1) (paragraphs (d) and (e) of the definition of
28
marriage counselling)
29
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
18 Family Law Amendment Bill 2005 No. , 2005
Repeal the paragraphs, substitute:
1
(d) divorce or the annulment of a marriage; or
2
(e) adjusting to divorce or the annulment of a marriage;
3
40 Subsection 4(1) (paragraphs (a) and (b) of the definition of
4
matrimonial cause)
5
Repeal the paragraphs, substitute:
6
(a) proceedings between the parties to a marriage, or by the
7
parties to a marriage, for:
8
(i) a divorce order in relation to the marriage; or
9
(ii) a decree of nullity of marriage; or
10
(b) proceedings for a declaration as to the validity of:
11
(i) a marriage; or
12
(ii) a divorce; or
13
(iii) the annulment of a marriage;
14
by decree or otherwise; or
15
41 Subsection 4(1) (subparagraph (ca)(ii) of the definition of
16
matrimonial cause)
17
Omit "proceedings between those parties for principal relief", substitute
18
"divorce or validity of marriage proceedings between those parties".
19
42 Subsection 4(1) (subparagraph (ca)(iii) of the definition of
20
matrimonial cause)
21
Repeal the subparagraph, substitute:
22
(iii) in relation to the divorce of the parties to that marriage,
23
the annulment of that marriage or the legal separation of
24
the parties to that marriage, being a divorce, annulment
25
or legal separation effected in accordance with the law of
26
an overseas jurisdiction, where that divorce, annulment
27
or legal separation is recognised as valid in Australia
28
under section 104; or
29
43 Subsection 4(1) (definition of prescribed proceedings)
30
Repeal the definition, substitute:
31
prescribed proceedings means:
32
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 19
(a) divorce or validity of marriage proceedings; or
1
(b) proceedings in relation to concurrent, pending or completed
2
divorce or validity of marriage proceedings.
3
44 Subsection 4(2)
4
Repeal the subsection, substitute:
5
(2) A reference in this Act, the standard Rules of Court or the related
6
Federal Magistrates Rules to a party to a marriage includes a
7
reference to a person who was a party to a marriage that has been:
8
(a) terminated by divorce (in Australia or elsewhere); or
9
(b) annulled (in Australia or elsewhere); or
10
(c) terminated by the death of one party to the marriage.
11
45 Section 14B (paragraph (a) of the definition of Division 2
12
proceedings)
13
Repeal the paragraph, substitute:
14
(a) proceedings for a divorce order; or
15
46 Paragraph 33A(2)(a)
16
Repeal the paragraph, substitute:
17
(a) proceedings for a divorce order; or
18
47 Paragraph 37A(2)(a)
19
Repeal the paragraph, substitute:
20
(a) a divorce order in proceedings that are defended; or
21
48 Paragraph 37A(2)(c)
22
Repeal the paragraph, substitute:
23
(c) a declaration as to the validity of:
24
(i) a marriage; or
25
(ii) a divorce; or
26
(iii) the annulment of a marriage; or
27
49 Subsection 39(3)
28
Omit "a decree of dissolution of marriage", substitute "a divorce order".
29
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
20 Family Law Amendment Bill 2005 No. , 2005
50 Subsection 39(3)
1
Omit "the decree", substitute "the order".
2
51 Subsection 39(4)
3
Omit "a decree of dissolution of marriage", substitute "a divorce order".
4
52 Subsection 44(1A)
5
Repeal the subsection, substitute:
6
(1A) Proceedings under this Act for:
7
(a) a divorce order in relation to a marriage; or
8
(b) a decree of nullity of marriage;
9
may be instituted by either party to the marriage or jointly by both
10
parties to the marriage.
11
53 Subsection 44(1B)
12
Omit "dissolution of a marriage", substitute "a divorce order in relation
13
to a marriage".
14
54 Subsection 44(1C)
15
Omit "dissolution of a marriage", substitute "a divorce order in relation
16
to a marriage".
17
55 Paragraph 44(3)(a)
18
Repeal the paragraph, substitute:
19
(a) a divorce order has taken effect; or
20
56 Paragraph 44(3)(c)
21
Repeal the paragraph, substitute:
22
(c) in a case referred to in paragraph (a)--the date on which the
23
divorce order took effect; or
24
57 Paragraph 44(3A)(a)
25
Repeal the paragraph, substitute:
26
(a) a divorce order has taken effect or a decree of nullity of
27
marriage has been made; and
28
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 21
58 Subparagraph 44(3A)(c)(i)
1
Repeal the subparagraph, substitute:
2
(i) the date on which the divorce order took effect or the
3
date of the making of the decree of nullity, as the case
4
may be; or
5
59 Paragraph 44(3B)(a)
6
Repeal the paragraph, substitute:
7
(a) a divorce order has taken effect or a decree of nullity of
8
marriage has been made; and
9
60 Subparagraph 44(3B)(c)(i)
10
Repeal the subparagraph, substitute:
11
(i) the date on which the divorce order took effect or the
12
date of the making of the decree of nullity, as the case
13
may be; or
14
61 Section 44A
15
Omit "a decree of dissolution of marriage", substitute "a divorce order".
16
Note:
The heading to section 44A is altered by omitting "decree of dissolution of
17
marriage" and substituting "divorce order".
18
62 Paragraph 46(2A)(a)
19
Omit "a decree of dissolution of a marriage", substitute "a divorce
20
order".
21
63 Part VI (heading)
22
Repeal the heading, substitute:
23
Part VI--Divorce and nullity of marriage
24
64 Subsection 48(1)
25
Omit "a decree of dissolution of a marriage", substitute "a divorce order
26
in relation to a marriage".
27
Note:
The heading to section 48 is replaced by the heading "Divorce".
28
65 Subsection 48(2)
29
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
22 Family Law Amendment Bill 2005 No. , 2005
Omit "a decree of dissolution of the marriage", substitute "the divorce
1
order".
2
66 Subsection 48(2)
3
Omit "dissolution of marriage", substitute "the divorce order".
4
67 Subsection 48(3)
5
Omit "decree of dissolution of marriage", substitute "divorce order".
6
68 Subsection 50(1)
7
Omit "a decree of dissolution of marriage", substitute "a divorce order".
8
69 Section 52
9
Omit "a decree of dissolution of that marriage", substitute "a divorce
10
order in relation to that marriage".
11
Note:
The heading to section 52 is altered by omitting "decree of dissolution" and
12
substituting "divorce order".
13
70 Section 52
14
Omit "a decree of dissolution of the marriage", substitute "a divorce
15
order in relation to the marriage".
16
71 Section 54
17
Repeal the section.
18
72 Subsections 55(1) to (5)
19
Repeal the subsections, substitute:
20
(1) Subject to this section, a divorce order made under this Act takes
21
effect by force of this section:
22
(a) at the expiration of a period of 1 month from the making of
23
the order; or
24
(b) from the making of an order under section 55A;
25
whichever is the later.
26
(2) If a divorce order has been made in any proceedings, the court of
27
first instance (whether or not it made the order), or a court in which
28
an appeal has been instituted, may, either before or after it has
29
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 23
disposed of the proceedings or appeal, and whether or not a
1
previous order has been made under this subsection:
2
(a) make an order extending the period at the expiration of which
3
the divorce order will take effect, having regard to the
4
possibility of an appeal or further appeal; or
5
(b) make an order reducing the period at the expiration of which
6
the divorce order will take effect if it is satisfied that there are
7
special circumstances that justify its so doing.
8
(3) If an appeal is instituted (whether or not it is the first appeal) before
9
a divorce order has taken effect, then, notwithstanding any order in
10
force under subsection (2) at the time of the institution of the appeal
11
but subject to any such order made after the institution of the
12
appeal, the divorce order, unless reversed or rescinded, takes effect
13
by force of this section:
14
(a) at the expiration of a period of 1 month from the day on which
15
the appeal is determined or discontinued; or
16
(b) on the day on which the divorce order would have taken effect
17
under subsection (1) if no appeal had been instituted;
18
whichever is the later.
19
(4) A divorce order does not take effect by force of this section if either
20
of the parties to the marriage has died.
21
(5) In this section:
22
appeal, in relation to a divorce order, means:
23
(a) an appeal or application for leave to appeal against, or an
24
intervention or application for a re-hearing relating to:
25
(i) the divorce order; or
26
(ii) an order under section 55A in relation to the proceedings
27
in which the divorce order was made; or
28
(b) an application under section 57 or 58 for rescission of the
29
divorce order or an appeal or application for leave to appeal
30
arising out of such an application.
31
Note:
The heading to section 55 is altered by omitting "decree becomes absolute" and
32
substituting "divorce order takes effect".
33
73 Subsection 55A(1)
34
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
24 Family Law Amendment Bill 2005 No. , 2005
Omit "A decree nisi of dissolution of marriage does not become
1
absolute", substitute "A divorce order in relation to a marriage does not
2
take effect".
3
Note:
The heading to section 55A is altered by omitting "Decree absolute" and substituting
4
"Divorce order".
5
74 Subparagraph 55A(1)(b)(ii)
6
Omit "the decree nisi should become absolute", substitute "the divorce
7
order should take effect".
8
75 Subsection 55A(2)
9
Omit "a decree of dissolution of marriage", substitute "a divorce order in
10
relation to a marriage".
11
76 Subsection 55A(4)
12
Omit "the decree nisi of dissolution of marriage", substitute "the divorce
13
order".
14
77 Subsections 56(1) and (2)
15
Repeal the subsections, substitute:
16
(1) If a divorce order takes effect, the Registry Manager of the court by
17
which the order was made must prepare and file a memorandum of
18
the fact and of the date on which the divorce order took effect.
19
(2) If a divorce order has taken effect, any person is entitled, on
20
application to the Registry Manager of the court by which the
21
divorce order was made, to receive a certificate signed by the
22
Registrar of that court that the divorce order has taken effect.
23
Note:
The heading to section 56 is altered by omitting "decree absolute" and substituting
24
"divorce order".
25
78 Sections 57 to 59
26
Repeal the sections, substitute:
27
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 25
57 Rescission of divorce order where parties reconciled
1
Despite anything contained in this Part, if a divorce order has been
2
made in relation to a marriage, the court may, at any time before the
3
order takes effect, upon the application of the parties to the
4
marriage, rescind the divorce order on the ground that the parties
5
have become reconciled.
6
58 Rescission of divorce order on ground of miscarriage of justice
7
If a divorce order has been made in proceedings but has not taken
8
effect, the court by which the divorce order was made may, on the
9
application of a party to the proceedings, or on the intervention of
10
the Attorney-General, if it is satisfied that there has been a
11
miscarriage of justice by reason of fraud, perjury, suppression of
12
evidence or any other circumstance, rescind the divorce order and, if
13
it thinks fit, order that the proceedings be re-heard.
14
59 Re-marriage
15
If a divorce order under this Act in relation to a marriage has taken
16
effect, a party to the marriage may marry again.
17
79 Paragraph 60F(2)(a)
18
Repeal the paragraph, substitute:
19
(a) a marriage that has been terminated by divorce or annulled (in
20
Australia or elsewhere); or
21
80 Paragraph 69P(3)(d)
22
Omit "the dissolution of the marriage", substitute "the divorce of the
23
parties".
24
81 Subparagraph 69ZH(3)(b)(ii)
25
Omit "proceedings between those parties for principal relief", substitute
26
"divorce or validity of marriage proceedings between those parties".
27
82 Subparagraph 69ZH(3)(b)(iii)
28
Repeal the subparagraph, substitute:
29
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
26 Family Law Amendment Bill 2005 No. , 2005
(iii) in relation to the divorce of the parties to that marriage,
1
an annulment of that marriage or a legal separation of
2
the parties to that marriage, that is effected in accordance
3
with the law of an overseas jurisdiction and that is
4
recognised as valid in Australia under section 104.
5
83 Paragraph 75(2)(g)
6
Omit "the marriage has been dissolved", substitute "or divorced".
7
84 Paragraphs 79(1B)(a) and (b)
8
Repeal the paragraphs, substitute:
9
(a) parties to concurrent, pending or completed divorce or validity
10
of marriage proceedings; or
11
(ba) parties to a marriage who have divorced under the law of an
12
overseas country, where that divorce is recognised as valid in
13
Australia under section 104; or
14
(bb) parties to a marriage that has been annulled under the law of
15
an overseas country, where that annulment is recognised as
16
valid in Australia under section 104; or
17
85 Paragraphs 79(1C)(a) and (b)
18
Repeal the paragraphs, substitute:
19
(a) divorce or validity of marriage proceedings are instituted by
20
one or both of those parties; or
21
(ba) the parties to the marriage have divorced under the law of an
22
overseas country and the divorce is recognised as valid in
23
Australia under section 104; or
24
(bb) the marriage is annulled under the law of an overseas country
25
and the annulment is recognised as valid in Australia under
26
section 104; or
27
86 Paragraph 90(2)(a)
28
Omit "the dissolution or", substitute "the termination of the marriage to
29
which the maintenance agreement relates by divorce or the".
30
87 Paragraph 90(2)(b)
31
Omit "the dissolution or", substitute "the termination of the marriage to
32
which the maintenance agreement relates by divorce or the".
33
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 27
88 Paragraph 90(2)(d)
1
Omit "the dissolution or", substitute "the termination of the marriage to
2
which the maintenance agreement relates by divorce or the".
3
89 Paragraph 90(2)(e)
4
Omit "the dissolution or", substitute "the termination of the marriage to
5
which the maintenance agreement relates by divorce or the".
6
90 Paragraph 90B(2)(a)
7
Omit "the dissolution of the marriage", substitute "divorce".
8
91 Subparagraph 90B(2)(b)(ii)
9
Omit "the dissolution of the marriage", substitute "divorce".
10
92 Subparagraph 90B(2)(b)(iii)
11
Repeal the subparagraph, substitute:
12
(iii) both during the marriage and after divorce.
13
93 Subparagraph 90C(2)(b)(ii)
14
Omit "the dissolution of the marriage", substitute "divorce".
15
94 Subparagraph 90C(2)(b)(iii)
16
Repeal the subparagraph, substitute:
17
(iii) both during the marriage and after divorce.
18
95 Paragraph 90D(1)(a)
19
Omit "a decree nisi dissolving a marriage is made", substitute "a divorce
20
order is made in relation to a marriage (whether it has taken effect or
21
not)".
22
Note:
The heading to section 90D is altered by omitting "dissolution of marriage" and
23
substituting "divorce order is made".
24
96 Subparagraph 90MI(a)(i)
25
Omit "the decree absolute dissolving the marriage", substitute "the
26
divorce order that has terminated the marriage".
27
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
28 Family Law Amendment Bill 2005 No. , 2005
97 Subsection 90MK(2) (subparagraph (a)(i) of the definition
1
of service time)
2
Omit "the decree absolute dissolving the marriage", substitute "the
3
divorce order that has terminated the marriage".
4
98 Subsection 91(1A)
5
Omit "a decree nisi has been made in any proceedings and before it has
6
become absolute", substitute "a divorce order has been made in any
7
proceedings and before it has taken effect".
8
99 Subsection 92(1)
9
Omit "other than proceedings for principal relief", substitute "(other than
10
divorce or validity of marriage proceedings)".
11
100 Subsection 92(1A)
12
Omit "proceedings for principal relief", substitute "divorce or validity of
13
marriage proceedings".
14
101 Section 93
15
Omit "a decree of dissolution of marriage after the decree has become
16
absolute", substitute "a divorce order after the order has taken effect".
17
Note:
The heading to section 93 is altered by omitting "decree absolute" and substituting
18
"divorce order takes effect".
19
102 Paragraph 98(1)(a)
20
Omit "proceedings for principal relief", substitute "divorce or validity of
21
marriage proceedings".
22
103 Paragraph 98(1)(b)
23
Omit "other than proceedings for principal relief", substitute "other than
24
divorce or validity of marriage proceedings".
25
104 Subsection 98A(1)
26
Omit "dissolution of marriage", substitute "a divorce order in relation to
27
a marriage".
28
105 Subsection 98A(2)
29
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 29
Omit "dissolution of marriage", substitute "a divorce order in relation to
1
a marriage".
2
106 Subsection 98A(2A)
3
Omit "the dissolution of marriage", substitute "the divorce order in
4
relation to the marriage".
5
107 Subsection 98A(4)
6
Omit "dissolution of the marriage", substitute "the divorce order in
7
relation to the marriage".
8
108 Subsection 104(1) (definition of applicant)
9
Omit "the dissolution or", substitute "a divorce or the".
10
109 Subsection 104(1) (paragraph (a) of the definition of
11
applicant)
12
Omit "dissolution", substitute "divorce".
13
110 Subsection 104(1) (paragraph (b) of the definition of
14
applicant)
15
Omit "dissolution", substitute "divorce".
16
111 Subsection 104(1) (definition of relevant date)
17
Omit "the dissolution or", substitute "a divorce or the".
18
112 Subsection 104(1) (definition of relevant date)
19
Omit "dissolution,", substitute "divorce,".
20
113 Subsection 104(1) (definition of respondent)
21
Omit "the dissolution or", substitute "a divorce or the".
22
114 Subsection 104(1) (definition of respondent)
23
Omit "dissolution,", substitute "divorce,".
24
115 Subsection 104(3)
25
Omit "A dissolution or", substitute "A divorce or the".
26
Schedule 1 Amendments
Part 10 Terminology relating to divorce and principal relief
30 Family Law Amendment Bill 2005 No. , 2005
116 Paragraph 104(3)(f)
1
Omit "dissolution of marriage,", substitute "divorce, the".
2
117 Subsection 104(4)
3
Omit "A dissolution or", substitute "A divorce or the".
4
118 Subsection 104(5)
5
Omit "Any dissolution or", substitute "Any divorce or any".
6
119 Subsection 104(7)
7
Omit "a dissolution or", substitute "a divorce or an".
8
120 Paragraph 104(7)(a)
9
Omit "the dissolution" (wherever occurring), substitute "the divorce".
10
121 Paragraph 104(7)(b)
11
Omit "the dissolution", substitute "the divorce".
12
122 Subsection 104(8)
13
Omit "a dissolution or", substitute "a divorce or the".
14
123 Subsection 104(9)
15
Omit "a dissolution or", substitute "a divorce or the".
16
124 Subsection 104(9)
17
Omit "the dissolution", substitute "the divorce".
18
125 Subsection 104(10)
19
Omit "dissolutions", substitute "divorces".
20
126 Subsection 104A(2)
21
Omit "dissolution", substitute "divorce or the".
22
127 Subsection 104A(3)
23
Omit "dissolution", substitute "divorce or the".
24
128 Paragraph 123(1)(n)
25
Amendments Schedule 1
Terminology relating to divorce and principal relief Part 10
Family Law Amendment Bill 2005 No. , 2005 31
Omit "applications for dissolution of marriage", substitute "an
1
application for a divorce order in relation to a marriage".
2
129 Transitional arrangements in relation to decrees nisi
3
made before the commencement of this Part
4
(1)
A decree nisi of the dissolution of a marriage under this Act that:
5
(a) was made before the commencement of this Part; and
6
(b) had become final before the commencement of this Part;
7
has effect on and after the commencement of this Part as if it were a
8
divorce order that had taken effect on the day on which the decree nisi
9
became absolute.
10
(2)
A decree nisi of the dissolution of a marriage under this Act that:
11
(a) was made before the commencement of this Part; and
12
(b) had not become final before the commencement of this Part;
13
has effect on and after the commencement of this Part as if it were a
14
divorce order that had been made on the day on which the decree nisi was
15
made.
16
Schedule 1 Amendments
Part 11 Leave to appeal
32 Family Law Amendment Bill 2005 No. , 2005
1
Part 11--Leave to appeal
2
Family Law Act 1975
3
130 Subsections 94AA(1) to (2C)
4
Repeal the subsections, substitute:
5
(1) The following table sets out the circumstances in which leave to
6
appeal is required:
7
8
Requirements for leave to appeal
Item
Appeal from
Appeal to
Who determines the
application for leave
to appeal
1
a prescribed decree of
the Family Court
(constituted otherwise
than as a Full Court)
a Full Court of the
Family Court
a Full Court of the
Family Court
2
a prescribed decree of a
Family Court of a State
a Full Court of the
Family Court
a Full Court of the
Family Court
3
a prescribed decree of a
Supreme Court of a
State or Territory
constituted by a single
Judge
a Full Court of the
Family Court
a Full Court of the
Family Court
4
a prescribed decree of
the Federal Magistrates
Court
the Family Court
(a) a single Judge of
the Family Court
(who need not be a
member of the
Appeal Division);
or
(b) a Full Court of the
Family Court
(2) Despite subsection (1), an order by consent disposing of an
9
application under this section for leave to appeal under subsection
10
94(1) or (1AA) (including an order for costs) may be made by:
11
(a) a Full Court of the Family Court; or
12
Amendments Schedule 1
Leave to appeal Part 11
Family Law Amendment Bill 2005 No. , 2005 33
(b) a Judge of the Appeal Division; or
1
(c) another Judge if there is no Judge of the Appeal Division
2
available.
3
(2A) Despite subsection (1), an order by consent disposing of an
4
application under this section for leave to appeal under subsection
5
94AAA(1) (including an order for costs) may be made by:
6
(a) a Full Court of the Family Court; or
7
(b) a single Judge of the Family Court (who need not be a
8
member of the Appeal Division).
9
131 Application
10
The amendment made by this Part applies to applications for leave to
11
appeal made on or after the commencement of this Part.
12
Schedule 1 Amendments
Part 12 Power to dismiss appeal
34 Family Law Amendment Bill 2005 No. , 2005
1
Part 12--Power to dismiss appeal
2
Family Law Act 1975
3
132 After section 96
4
Insert:
5
96AA Power to dismiss appeal
6
If it appears to a court hearing an appeal under this Part that the
7
notice of the appeal does not disclose proper grounds of appeal
8
(whether generally, or in relation to a particular ground of appeal),
9
the court may order that the proceedings on the appeal be stayed or
10
dismissed (either generally or in relation to that ground).
11
133 Application
12
The amendment made by this Part applies to appeals that are initiated
13
before or after this Part commences.
14
Amendments Schedule 1
Appeals to High Court Part 13
Family Law Amendment Bill 2005 No. , 2005 35
1
Part 13--Appeals to High Court
2
Family Law Act 1975
3
134 Section 95
4
Repeal the section, substitute:
5
95 Appeals to High Court
6
Despite anything contained in any other Act, an appeal does not lie
7
to the High Court from a decree of a court exercising jurisdiction
8
under this Act, whether original or appellate, except by special leave
9
of the High Court.
10
135 Application
11
The amendment made by this Part applies to appeals in relation to
12
proceedings whether initiated before or after this Part commences.
13
Schedule 1 Amendments
Part 14 Recovery of amounts paid under maintenance orders
36 Family Law Amendment Bill 2005 No. , 2005
1
Part 14--Recovery of amounts paid under
2
maintenance orders
3
Family Law Act 1975
4
136 At the end of Division 7 of Part VII
5
Add:
6
Subdivision G--Recovery of amounts paid under maintenance
7
orders
8
66X Recovery of amounts paid, and property transferred or settled,
9
under maintenance orders
10
(1) This section applies if:
11
(a) a court has at any time purported to make an order (the
12
purported order) of a kind referred to in paragraph 66P(1)(a),
13
(b) or (c) requiring a person (the maintenance provider) to
14
pay an amount, or to transfer or settle property, by way of
15
maintenance for a child; and
16
(b) the maintenance provider has:
17
(i) paid another person an amount or amounts; or
18
(ii) transferred or settled property;
19
in compliance, or partial compliance, with the purported
20
order; and
21
(c) a court has determined that the maintenance provider is not a
22
parent or step-parent of the child.
23
(2) If the maintenance provider applies to a court having jurisdiction
24
under this Part for an order under this subsection, the court must
25
make such order as it considers just and equitable in the
26
circumstances to ensure that:
27
(a) if the purported order was of a kind referred to in paragraph
28
66P(1)(a) or (b)--the person to whom the amount or amounts
29
referred to in subparagraph (1)(b)(i) of this section were paid
30
repays to the maintenance provider an amount equal to that
31
amount or the sum of those amounts; or
32
Amendments Schedule 1
Recovery of amounts paid under maintenance orders Part 14
Family Law Amendment Bill 2005 No. , 2005 37
(b) if the purported order was of the kind referred to in paragraph
1
66P(1)(c)--the property referred to in subparagraph (1)(b)(ii)
2
of this section, or the value of that property, is returned to the
3
maintenance provider.
4
(3) If the purported order was of the kind referred to in paragraph
5
66P(1)(c) and the court that made the order did so:
6
(a) in part by way of providing maintenance for the child; and
7
(b) in part for some other purpose;
8
the reference in paragraph (2)(b) to the property, or the value of the
9
property, referred to in subparagraph (1)(b)(ii) is taken to be a
10
reference to that property, or the value of that property, only to the
11
extent to which that property was transferred or settled by way of
12
providing maintenance for the child.
13
(4) Without limiting paragraph (2)(b), the orders that the court may
14
make under that paragraph include the following:
15
(a) an order that a specified payment be made;
16
(b) an order that a specified transfer or settlement of property be
17
made;
18
(c) an order that any necessary instrument be executed, and that
19
such documents of title be produced and such other things be
20
done, as are necessary to enable an order to be carried out
21
effectively or to provide security for the due performance of
22
an order.
23
Schedule 1 Amendments
Part 15 Powers of judicial registrars
38 Family Law Amendment Bill 2005 No. , 2005
1
Part 15--Powers of judicial registrars
2
Family Law Act 1975
3
137 Paragraph 26B(1A)(e)
4
Omit "paragraph 70NG(1)(b)", substitute "subsection 70NEB(1) or
5
paragraph 70NG(1)(b) or (ba)".
6
Amendments Schedule 1
Jurisdiction of Family Court of Western Australia Part 16
Family Law Amendment Bill 2005 No. , 2005 39
1
Part 16--Jurisdiction of Family Court of Western
2
Australia
3
Bankruptcy Act 1966
4
138 After section 35A
5
Insert:
6
35B Family Court of Western Australia
7
(1) Sections 27, 35 and 35A apply to the Family Court of Western
8
Australia in a corresponding way to the way in which they apply to
9
the Family Court of Australia.
10
(2) Paragraph 35A(3)(f) has effect, in relation to a proceeding
11
transferred to the Family Court of Western Australia, as if:
12
(a) each reference in subparagraph 35A(3)(f)(ii) or (iii) to a
13
Family Court Judge were a reference to a judge of the Family
14
Court of Western Australia; and
15
(b) the reference in subparagraph 35A(3)(f)(iv) to a Registrar of
16
the Family Court were a reference to a registrar of the Family
17
Court of Western Australia.
18

 


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