FAMILY LAW AMENDMENT (PARENTING MANAGEMENT HEARINGS) BILL 2017

2016-2017

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Family Law Amendment (Parenting

Management Hearings) Bill 2017

No. , 2017

(Attorney-General)

A Bill for an Act to amend the Family Law Act

1975, and for related purposes

No. , 2017

Family Law Amendment (Parenting Management Hearings) Bill 2017

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 4

Schedule 1--Amendments

Part 1--Main amendments

Family Law Act 1975

Part 2--Consequential amendments

105

A New Tax System (Family Assistance) Act 1999

105

Australian Citizenship Act 2007

105

Australian Passports Act 2005

105

Federal Circuit Court of Australia Act 1999

106

Federal Court of Australia Act 1976

106

Migration Act 1958

107

My Health Records Act 2012

107

National Disability Insurance Scheme Act 2013

107

Public Interest Disclosure Act 2013

108

Social Security Act 1991

108

Social Security (Administration) Act 1999

108

Part 3--Application provisions

109

Schedule 2--Contingent amendments

111

Part 1--Amendments contingent on the Civil Law and Justice

Legislation Amendment Act 2017

111

Family Law Act 1975

111

Marriage Act 1961

116

Part 2--Amendments contingent on the Family Assistance and

Child Support Legislation Amendment (Protecting

Children) Act 2017

118

A New Tax System (Family Assistance) Act 1999

118

Child Support (Assessment) Act 1989

119

No. , 2017

Family Law Amendment (Parenting Management Hearings) Bill 2017

A Bill for an Act to amend the Family Law Act

1975, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Family Law Amendment (Parenting Management

Hearings) Act 2017.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

3. Schedule 2,

items 1 to 4

The later of:

(a) immediately after the commencement of

Part 1 of Schedule 6 to the Civil Law and

Justice Legislation Amendment Act 2017;

and

(b) immediately after the commencement of

the provisions covered by table item 2.

However, the provisions do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

4. Schedule 2,

items 5 to 15

The later of:

(a) immediately after the commencement of

Part 2 of Schedule 6 to the Civil Law and

Justice Legislation Amendment Act 2017;

and

(b) immediately after the commencement of

the provisions covered by table item 2.

However, the provisions do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

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Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

5. Schedule 2,

items 16 to 20

The later of:

(a) immediately after the commencement of

Schedule 9 to the Civil Law and Justice

Legislation Amendment Act 2017; and

(b) immediately after the commencement of

the provisions covered by table item 2.

However, the provisions do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

6. Schedule 2,

Part 2

The later of:

(a) immediately after the commencement of

Part 1 of Schedule 1 to the Family

Assistance and Child Support Legislation

Amendment (Protecting Children) Act

2017; and

(b) immediately after the commencement of

the provisions covered by table item 2.

However, the provisions do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

7. Schedule 2,

Part 3

The later of:

(a) immediately after the commencement of

Division 1 of Part 2 of Schedule 1 to the

Family Law Amendment (Family

Violence and Other Measures) Act 2017;

and

(b) immediately after the commencement of

the provisions covered by table item 2.

However, the provisions do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

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(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

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Schedule 1--Amendments

Part 1--Main amendments

Family Law Act 1975

1 Subsection 4(1) (before paragraph (a) of the definition of

child)

Insert:

(aa) in Part IIIAA, includes an adopted child; and

2 Subsection 4(1)

Insert:

child sexual abuse has the meaning given by

subsection 11NA(16).

contravened a parenting determination, in Division 13A of

Part VII, has the meaning given by section 70NACA.

Federal Court Chief Executive Officer means the Chief Executive

Officer and Principal Registrar of the Federal Court of Australia.

3 Subsection 4(1) (definition of interests)

Omit "Part", substitute "Parts IIIAA and".

4 Subsection 4(1)

Insert:

made in favour, in relation to a parenting determination, has the

meaning given by subsection 11JG(7).

paid work means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise).

Panel means the Parenting Management Hearings Panel

established by section 11T.

Panel member means a member of the Parenting Management

Hearings Panel, and includes the Principal Member.

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Panel rules means the rules made under section 11SB.

5 Subsection 4(1) (definition of parent)

Omit "Part", substitute "Parts IIIAA and".

6 Subsection 4(1) (definition of parental responsibility)

Omit "Part", substitute "Parts IIIAA and".

7 Subsection 4(1)

Insert:

parenting determination has the meaning given by section 11JG.

parenting management hearing means a hearing conducted by the

Panel in relation to an application for a parenting determination.

8 Subsection 4(1) (at the end of the definition of primary

order)

Add:

Note:

In Division 13A of Part VII, primary order has a meaning affected by

section 70NABA.

9 Subsection 4(1)

Insert:

Principal Member means the Principal Member of the Parenting

Management Hearings Panel.

Principal Member directions means directions given under

section 11VA.

reasonable excuse for contravening a parenting determination

includes the meanings given by section 70NAE.

10 After paragraph 4(1AB)(aa)

Insert:

(ab) sections 11JB and 11LG; and

11 At the end of subsection 10D(4)

Add:

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; or (g) if a lawyer independently represents a child's interests under

a direction under section 11LK--assisting the lawyer to do so

properly.

12 At the end of subsection 10E(1)

Add:

; or (e) in a parenting management hearing.

13 After subsection 10E(2)

Insert:

(2A) Despite paragraph (1)(e), the Panel may rely on:

(a) an admission by an adult that indicates that a child under 18

has been abused or is at risk of abuse; or

(b) a disclosure by a child under 18 that indicates that the child

has been abused or is at risk of abuse;

for the purposes of a parenting management hearing unless, in the

opinion of the Panel, sufficient information about the admission or

disclosure is available to the Panel from other sources.

14 After paragraph 10H(4)(e)

Insert:

(ea) if a lawyer independently represents a child's interests under

a direction under section 11LK--assisting the lawyer to do so

properly; or

15 Subsection 10H(6)

After "subsection", insert "11KB(2) or".

16 At the end of subsection 10J(1)

Add:

; or (e) in a parenting management hearing.

17 After subsection 10J(2)

Insert:

(2A) Despite paragraph (1)(e), the Panel may rely on:

(a) an admission by an adult that indicates that a child under 18

has been abused or is at risk of abuse; or

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(b) a disclosure by a child under 18 that indicates that the child

has been abused or is at risk of abuse;

for the purposes of a parenting management hearing unless, in the

opinion of the Panel, sufficient information about the admission or

disclosure is available to the Panel from other sources.

18 Subsection 10J(3)

After "subsection", insert "11KB(2) or".

19 Section 11A

Before "The", insert "(1)".

20 At the end of section 11A

Add:

(2) Family consultants also have the function of providing services in

relation to parenting management hearings, including:

(a) assisting and advising parties to parenting management

hearings; and

(b) assisting and advising the Panel in relation to parenting

management hearings; and

disputes that are the subject of the hearing; and

(d) reporting to the Panel or undertaking an investigation under

section 11MB; and

(e) advising the Panel about appropriate family counsellors,

family dispute resolution practitioners and courses, programs

and services to which the Panel can refer the parties to a

parenting management hearing.

21 After paragraph 11B(a)

Insert:

(b) engaged as a family consultant under section 11WD; or

22 After Part III

Insert:

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Part IIIAA--Parenting management hearings

Division 1--Introduction

11J Objects of this Part

(1) The object of this Part is to facilitate the resolution of matters

involving the parenting of a child in a way that:

(a) is fair, just, economical, informal and prompt; and

(b) has the best interests of the child as the paramount

consideration.

(2) Another object of this Part is to give effect to the Convention on

the Rights of the Child done at New York on 20 November 1989.

Note:

The Convention on the Rights of the Child is in Australian Treaty

Series 1991 No. 4 ([1991] ATS 4) and could in 2017 be viewed in the

Australian Treaties Library on the AustLII website

(http://www.austlii.edu.au).

(3) This Part achieves those objects by:

(a) providing for parenting management hearings; and

(b) creating the Parenting Management Hearings Panel to

conduct such hearings.

Note:

Division 13A of Part VII provides for the compliance regime for

dealing with contraventions, and alleged contraventions, of parenting

determinations.

11JA Application to Aboriginal or Torres Strait Islander children

In:

(a) applying this Part to the circumstances of an Aboriginal or

Torres Strait Islander child; or

(b) identifying a person or persons who have exercised, or who

may exercise, parental responsibility for such a child;

the Panel must have regard to any kinship obligations, and

child-rearing practices, of the child's Aboriginal or Torres Strait

Islander culture.

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11JB Determining child's best interests

Determining child's best interests

(1) In determining what is in the child's best interests for the purposes

of this Part, the Panel must consider the matters set out in

subsections (2) and (4).

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship

with both of the child's parents; and

(b) the need to protect the child from physical or psychological

harm from being subjected to, or exposed to, abuse, neglect

or family violence.

(3) In applying the considerations set out in subsection (2), the Panel is

to give greater weight to the consideration set out in

paragraph (2)(b).

Additional considerations

(4) Additional considerations are the following matters, to the extent

they are relevant to the particular parenting management hearing:

(a) any views expressed by the child and any factors (such as the

child's maturity or level of understanding) that the Panel

thinks are relevant to the weight it should give to the child's

views;

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other

relative of the child);

failed to take, the opportunity:

(i) to participate in making decisions about major

long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

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(d) the extent to which each of the child's parents has fulfilled,

or failed to fulfil, the parent's obligations to maintain the

child;

(e) the likely effect of any changes in the child's circumstances,

including the likely effect on the child of any separation

from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any

grandparent or other relative of the child), with whom

he or she has been living;

(f) the practical difficulty and expense of a child spending time

with and communicating with a parent and whether that

difficulty or expense will substantially affect the child's right

to maintain personal relations and direct contact with both

parents on a regular basis;

(g) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other

relative of the child);

to provide for the needs of the child, including emotional and

intellectual needs;

(h) the maturity, sex, lifestyle and background (including

lifestyle, culture and traditions) of the child and of either of

the child's parents, and any other characteristics of the child

that the Panel thinks are relevant;

(i) if the child is an Aboriginal child or a Torres Strait Islander

child:

(i) the child's right to enjoy his or her Aboriginal or Torres

Strait Islander culture (including the right to enjoy that

culture with other people who share that culture); and

(ii) the likely impact any proposed parenting determination

under this Part will have on that right;

(j) the attitude to the child, and to the responsibilities of

parenthood, demonstrated by each of the child's parents;

(k) any family violence involving the child or a member of the

child's family;

(l) if a family violence order applies, or has applied, to the child

or a member of the child's family--any relevant inferences

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that can be drawn from the order, taking into account the

following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for,

the order;

(v) any other relevant matter;

(m) whether it would be preferable to make a parenting

determination that would be least likely to lead to the

institution of proceedings under this Act in relation to the

child;

(n) any other fact or circumstance that the Panel thinks is

relevant.

Right to enjoy Aboriginal or Torres Strait Islander culture

(5) For the purposes of paragraph (4)(i), an Aboriginal child's or a

Torres Strait Islander child's right to enjoy his or her Aboriginal or

Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement

necessary:

(i) to explore the full extent of that culture, consistent with

the child's age and developmental level and the child's

views; and

(ii) to develop a positive appreciation of that culture.

11JC How the views of a child are expressed

(1) Paragraph 11JB(4)(a) requires the Panel to consider any views

expressed by a child in deciding whether to make a particular

parenting determination in relation to the child. This section deals

with how the Panel informs itself of views expressed by a child.

(2) The Panel may inform itself of views expressed by a child:

(a) by having regard to anything contained in a report given to

the Panel under section 11MB; or

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(b) by giving a direction under section 11LK for the child's

interests in the parenting management hearing to be

independently represented by a lawyer; or

for the purposes of this paragraph.

(3) Nothing in this Part permits the Panel or any person to require the

child to express his or her views in relation to any matter.

11JD Parenting determinations and parental responsibility

(1) A parenting determination in relation to a child confers parental

responsibility for the child on a person, but only to the extent to

which the determination confers on the person duties, powers,

responsibilities or authority in relation to the child.

(2) A parenting determination in relation to a child does not take away

or diminish any aspect of the parental responsibility of any person

for the child except to the extent (if any):

(a) expressly provided for in the determination; or

(b) necessary to give effect to the determination.

11JE Presumption of equal shared parental responsibility when

making parenting determinations

(1) When making a parenting determination in relation to a child, the

Panel must apply a presumption that it is in the best interests of the

child for the child's parents to have equal shared parental

responsibility for the child.

Note:

The presumption provided for in this subsection is a presumption that

relates solely to the allocation of parental responsibility for a child as

defined in section 61B. It does not provide for a presumption about the

amount of time the child spends with each of the parents (this issue is

dealt with in section 11PL).

(2) The presumption does not apply if there are reasonable grounds to

believe that a parent of the child (or a person who lives with a

parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a

member of the parent's family (or that other person's family);

(b) family violence.

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(3) When the Panel is making an interim parenting determination, the

presumption applies unless the Panel considers that it would not be

appropriate in the circumstances for the presumption to be applied

when making that determination.

(4) The presumption may be rebutted by information that satisfies the

Panel that it would not be in the best interests of the child for the

child's parents to have equal shared parental responsibility for the

child.

11JF Application of presumption of equal shared parental

responsibility after interim parenting determination made

If there is an interim parenting determination in relation to a child,

the Panel must, in making a final parenting determination in

relation to the child, disregard the allocation of parental

responsibility made in the interim determination.

11JG Meaning of parenting determination and related terms

(1) A parenting determination is:

(a) a determination made by the Panel under this Part dealing

with a matter mentioned in subsection (3); or

(b) a determination under this Part discharging, varying,

suspending or reviving a determination, or part of a

determination, described in paragraph (a).

(2) A parenting determination may be expressed to be an interim

parenting determination or a final parenting determination.

(3) A parenting determination may make provision in relation to one

or more of the following matters:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other

persons;

(d) if 2 or more persons are to share parental responsibility for a

child--the form of consultations those persons are to have

with one another about decisions to be made in the exercise

of that responsibility;

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(e) the communication a child is to have with another person or

other persons;

(f) any aspect of the care, welfare or development of the child or

any other aspect of parental responsibility for a child.

(4) Without limiting paragraph (3)(c), the parenting determination may

deal with the allocation of responsibility for making decisions

about major long-term issues in relation to the child.

(5) The communication referred to in paragraph (3)(e) includes (but is

not limited to) communication by:

(a) letter; and

(b) telephone, email or any other electronic means.

(6) Paragraph (3)(f) does not authorise a parenting determination in

relation to a child to:

(a) make provision for medical procedures in relation to the

child; or

(b) deal with the issue of the parentage of the child.

(7) For the purposes of this Act:

(a) a parenting determination that provides that a child is to live

with a person is made in favour of that person; and

(b) a parenting determination that provides that a child is to

spend time with a person is made in favour of that person;

and

communication with a person is made in favour of that

person; and

(d) a parenting determination that:

(i) allocates parental responsibility for a child to a person;

(ii) provides that a person is to share parental responsibility

for a child with another person;

is made in favour of that person.

11JH Parenting determinations may be made in favour of parents or

other persons

A parenting determination in relation to a child may be made in

favour of a parent of the child or some other person.

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Division 2--Parenting management hearings

Subdivision A--Applications for parenting determinations

11K Who may apply for a parenting determination

One or more of the following persons may apply for a parenting

determination in relation to a child:

(a) a parent of the child;

(b) the child;

(d) any other person concerned with the care, welfare or

development of the child.

Note:

The Panel cannot make a parenting determination in relation to a child

unless a parenting management hearing is conducted (see

section 11L). A parenting management hearing may be conducted in

the absence of the parties in certain circumstances (see section 11LC).

11KA How applications for parenting determinations are made

An application for a parenting determination must:

(a) be made in accordance with the Principal Member directions;

and

(b) include any information or documents required by the

Principal Member directions.

11KB Requirements in relation to applications for parenting

determinations

(1) An application for a parenting determination in relation to a child

cannot be made unless:

(a) the child is present in Australia on the day the application is

made; or

(b) the child is an Australian citizen, or is ordinarily resident in

Australia, on the day the application is made; or

subsection 11KC(1) is an Australian citizen, is ordinarily

resident in Australia, or is present in Australia, on the day the

application is made.

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(2) Subject to subsection (3), an application for a parenting

determination must include one of the following certificates from a

family dispute resolution practitioner:

(a) a certificate to the effect that the person making the

application did not attend family dispute resolution with the

practitioner and the other party or parties to the parenting

management hearing in relation to the issue or issues that the

determination would deal with, but the person's failure to do

so was due to the refusal, or the failure, of the other party or

parties to the hearing to attend;

(b) a certificate to the effect that the person making the

application did not attend family dispute resolution with the

practitioner and the other party or parties to the parenting

management hearing in relation to the issue or issues that the

determination would deal with, because the practitioner

considers, having regard to the matters prescribed by the

regulations for the purposes of paragraph 60I(8)(aa), that it

would not be appropriate to conduct the proposed family

dispute resolution;

application attended family dispute resolution with the

practitioner and the other party or parties to the parenting

management hearing in relation to the issue or issues that the

determination would deal with, and that all attendees made a

genuine effort to resolve the issue or issues;

(d) a certificate to the effect that the person making the

application attended family dispute resolution with the

practitioner and the other party or parties to the parenting

management hearing in relation to the issue or issues that the

determination would deal with, but that the person, the other

party or another of the parties to the hearing did not make a

genuine effort to resolve the issue or issues;

(e) a certificate to the effect that the person making the

application began attending family dispute resolution with

the practitioner and the other party or parties to the parenting

management hearing in relation to the issue or issues that the

determination would deal with, but that the practitioner

considers, having regard to the matters prescribed by the

regulations for the purposes of paragraph 60I(8)(d), that it

would not be appropriate to continue the family dispute

resolution.

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(3) Subsection (2) does not apply to an application for a parenting

determination in relation to a child if:

(a) the application has been made in response to an application

that another person has made for a parenting determination in

relation to the child; or

(b) the Panel is satisfied that there are reasonable grounds to

believe that:

(i) there has been abuse of the child by one of the parties to

the parenting management hearing; or

(ii) there is a risk of abuse of the child if there was a delay

in applying for the determination; or

(iii) there has been family violence by one of the parties to

the parenting management hearing; or

(iv) there is a risk of family violence by one of the parties to

the parenting management hearing; or

hearing are unable to participate effectively in family dispute

resolution (whether because of an incapacity of some kind,

physical remoteness from dispute resolution services or for

some other reason); or

(d) other circumstances specified in the Panel rules are satisfied.

(4) The validity of:

(a) a parenting management hearing; or

(b) any parenting determination made as part of that hearing;

is not affected by a failure to comply with subsection (2) in relation

to that hearing.

11KC Consent of relevant persons required in relation to

applications for parenting determinations

(1) A parenting management hearing must not be conducted in relation

to an application for a parenting determination unless all of the

following consent to the application:

(a) each person with parental responsibility for the child;

(b) if there is a parenting determination or a parenting order in

force in relation to the child--each person in whose favour

the determination or order is made.

Note:

If consent to the application for a parenting determination is not given,

the application must be dismissed (see subsection 11NA(1)).

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(2) The consent required by this section in relation to an application

must be given:

(a) in relation to all of the matters to which the application

relates; and

(b) in writing; and

directions for the purposes of this paragraph.

11KD Pre-hearing conferences

(1) The Principal Member may hold a pre-hearing conference for the

purposes of dealing with matters preliminary to conducting a

parenting management hearing in relation to an application for a

parenting determination.

(2) Without limiting subsection (1), a pre-hearing conference may deal

with:

(a) the consent required by section 11KC; or

(b) the matters to which an application for a parenting

determination relates.

(3) The parties to a pre-hearing conference are:

(a) the person or persons who made the application for a

parenting determination; and

(b) the persons whose consent to the application would be

required by section 11KC; and

Subdivision B--Procedures for parenting management

hearings

11L Hearing must be conducted before a parenting determination

can be made

The Panel must conduct a parenting management hearing before

making a parenting determination.

Note:

A parenting management hearing may be conducted in the absence of

the parties to the hearing in certain circumstances (see section 11LC).

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11LA Parties to hearings

(1) The parties to a parenting management hearing are:

(a) the person or persons who made the application for the

parenting determination to which the hearing relates; and

(b) each other person whose consent to the application is

required by section 11KC; and

subsection (2).

(2) The Panel may:

(a) at any stage of a parenting management hearing; and

(b) on application by a person who could apply for the parenting

determination under section 11K;

join the person as a party to the parenting management hearing if

the Panel is satisfied it is appropriate in all the circumstances to do

so.

11LB Right to appear before the Panel

(1) A party to a parenting management hearing has the right to appear

before the Panel and to make oral submissions to the Panel.

(2) This section is subject to section 11LC (about making a parenting

determination in the absence of the parties to the parenting

management hearing in certain circumstances).

11LC Parenting determinations may be made in the absence of the

parties

(1) This section applies if:

(a) it appears to the Panel that the matters for determination

before the Panel can be adequately determined without the

parties to the parenting management hearing appearing

before, or making oral submissions to, the Panel; and

(b) the parties to the hearing consent to the matter being

determined without appearing before, or making oral

submissions to, the Panel.

(2) The Panel may make a parenting determination:

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(a) in the absence of the parties to the parenting management

hearing; and

(b) by considering the documents or other material lodged with

or provided to the Panel.

11LD Procedure for the conduct of hearings

(1) In a parenting management hearing:

(a) the procedure of the Panel is within the discretion of the

Panel; and

(b) the Panel is not bound by the rules of evidence; and

(d) the hearing is to be conducted with as little technicality and

formality, and as quickly and economically, as the

requirements of this Part and a proper consideration of the

matters before the Panel permit; and

(e) the Panel may give directions in relation to the conduct of the

hearing.

Note:

The Panel may dismiss an application for a parenting determination if

a party to the hearing to which the determination relates fails to

comply with a direction given by the Panel (see paragraph 11NE(b)).

(2) Subsection (1) is subject to this Part, the Panel rules, the Principal

Member directions and the rules of natural justice.

(3) Without limiting paragraph (1)(e), the Panel may direct a party to a

parenting management hearing:

(a) to give such information or documents to the Panel as are

specified in the direction; or

(b) to attend a post-separation parenting program.

(4) In deciding whether to give a direction of a kind mentioned in

paragraph (3)(b), the Panel must regard the best interests of the

child as the paramount consideration.

11LE Principles to be applied in relation to parenting management

hearings

(1) The Panel must give effect to the principles in this section in

performing duties and exercising powers in relation to parenting

management hearings. However, a failure to do so does not

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invalidate a parenting management hearing or any determination or

other decision made in relation to a hearing.

(2) The first principle is that the Panel is to consider the needs of the

child to whom the parenting management hearing relates and the

impact that the conduct of the hearing may have on the child in

determining the conduct of the hearing.

(3) The second principle is that the Panel is to actively direct, control

and manage the conduct of the parenting management hearing.

(4) The third principle is that the parenting management hearing is to

be conducted in a way that will safeguard:

(a) the child to whom the hearing relates from being subjected

to, or exposed to, abuse, neglect or family violence; and

(b) the parties to the hearing against family violence.

(5) The fourth principle is that the parenting management hearing is,

as far as possible, to be conducted in a way that will promote

cooperative and child-focused parenting by the parties.

11LF Public hearings and directions for private hearings,

non-publication and non-disclosure

Hearings generally to be in public

(1) Subject to this section, a parenting management hearing must take

place in public.

(2) Subsection (1) does not apply if section 11LC applies to the

hearing.

Note:

Section 11LC deals with when a parenting management hearing is

conducted in the absence of the parties to the hearing.

Direction for private hearing

(3) The Panel member presiding at a parenting management hearing

may make the following directions in relation to the hearing if the

member is satisfied that it is desirable to do so because of the

confidential nature of any matter before the Panel, or for any other

reason:

(a) directions that all or part of the hearing is to be held in

private;

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(b) directions about who may be present at that hearing.

Directions for non-publication or non-disclosure

(4) The Panel may give directions prohibiting or restricting the

publication or other disclosure of:

(a) information tending to reveal the identity of:

(i) a party to or witness in a parenting management

hearing; or

(ii) any person related to or otherwise associated with any

party to or witness in a parenting management hearing;

(b) information otherwise concerning a person referred to in

paragraph (a).

(5) The Panel may give directions prohibiting or restricting the

publication or other disclosure, including to some or all of the

parties to a parenting management hearing, of information that:

(a) relates to a parenting management hearing; and

(b) is either of the following:

(i) information that comprises oral submissions made to the

Panel or information about such submissions;

(ii) information lodged with or otherwise given to the Panel.

(6) In considering whether to give directions under subsection (4) or

(5) the Panel is to take as the basis of its consideration the principle

that it is desirable that oral submissions made to the Panel and the

contents of documents received by the Panel should be made

available to all the parties to the parenting management hearing.

(7) However (and without being required to seek the views of the

parties to the hearing), the Panel is to pay due regard to any reasons

in favour of giving a direction under subsection (4) or (5),

including the confidential nature (if applicable) of the information

and the safety of any person.

11LG Obligation to inform the Panel of certain matters

Family violence orders

(1) If a party to a parenting management hearing in relation to a child

is aware that a family violence order applies to the child, or a

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member of the child's family, the party must inform the Panel of

the family violence order.

(2) If a person who is not a party to a parenting management hearing

in relation to a child is aware that a family violence order applies to

the child, or a member of the child's family, that person may

inform the Panel of the family violence order.

Care arrangements under child welfare laws

(3) If a party to a parenting management hearing in relation to a child

is aware that the child, or another child who is a member of the

child's family, is under the care (however described) of a person

under a child welfare law, the party must inform the Panel of the

matter.

(4) If a person who is not a party to a parenting management hearing

in relation to a child is aware that the child, or another child who is

a member of the child's family, is under the care (however

described) of a person under a child welfare law, the person may

inform the Panel of the matter.

(5) Subsection (4) does not limit the operation of section 11PG (child

welfare laws not affected).

Notifications to, and investigations by, prescribed State or

Territory agencies

(6) If:

(a) a party to a parenting management hearing in relation to a

child is aware that the child, or another child who is a

member of the child's family, is or has been the subject of:

(i) a notification or report (however described) to a

prescribed State or Territory agency; or

(ii) an investigation, inquiry or assessment (however

described) by a prescribed State or Territory agency;

and

(b) the notification, report, investigation, inquiry or assessment

relates to abuse, or an allegation, suspicion or risk of abuse;

the party must inform the Panel of the matter.

(7) If:

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(a) a person who is not a party to a parenting management

hearing in relation to a child is aware that the child, or

another child who is a member of the child's family, is or has

been the subject of:

(i) a notification or report (however described) to a

prescribed State or Territory agency; or

(ii) an investigation, inquiry or assessment (however

described) by a prescribed State or Territory agency;

and

(b) the notification, report, investigation, inquiry or assessment

relates to abuse, or an allegation, suspicion or risk of abuse;

the person may inform the Panel of the matter.

Validity of parenting determinations not affected

(8) A failure to inform the Panel of a matter in this section does not

affect the validity of any parenting determination made by the

Panel.

Meaning of prescribed State or Territory agency

(9) In this section:

prescribed State or Territory agency means an agency that is a

prescribed State or Territory agency for the purpose of

section 11MK.

11LH Participation in hearings by video link etc.

The Panel member presiding at a parenting management hearing

may allow a person to participate in a hearing by video link, audio

link or other appropriate means.

11LJ Legal representation and assistance in relation to hearings

(1) A party to a parenting management hearing may be legally

represented when appearing before the Panel only with the leave of

the Panel.

(2) In deciding whether to give leave, the Panel must have regard to:

(a) whether there are reasonable grounds to believe that there has

been family violence by a party to the parenting management

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hearing, or there is a risk of family violence by a party to the

hearing; and

(b) the capacity of a party to effectively participate in the hearing

without legal representation, having regard to any power

imbalances between the parties to the hearing or any other

relevant factor.

(3) If the Panel gives leave for the purposes of subsection (1), the

Panel may give directions in relation to the role of a person legally

representing a party to a parenting management hearing.

(4) Subject to any directions made under subsection 11LF(3), a party

to a parenting management hearing is entitled, in the hearing, to

have another person (the assistant) present when appearing before

the Panel to assist him or her.

(5) The assistant is not entitled to present arguments to the Panel, or to

address it, unless the Panel is satisfied that, because of exceptional

circumstances, the assistant should be allowed to do so.

(6) This section does not, by implication, affect any entitlement to

legal representation that a person has in circumstances not covered

by subsection (1).

11LK Direction for independent representation of child's interests

(1) If it appears to the Panel that a child's interests in a parenting

management hearing ought to be independently represented by a

lawyer, the Panel:

(a) may direct that the child's interests in the hearing are to be

independently represented by a lawyer; and

(b) may give such other directions as it considers necessary to

secure that independent representation of the child's interests.

(2) Without limiting paragraph (1)(b), the Panel may give a direction

under that paragraph for the purpose of allowing the lawyer who is

to represent the child's interests to find out what the child's views

are on the matters to which the parenting management hearing

relates.

Note:

A person cannot require a child to express his or her views in relation

to any matter (see subsection 11JC(3)).

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(3) Subsection (2) does not apply if complying with that subsection

would be inappropriate because of:

(a) the child's age or maturity; or

(b) some other special circumstance.

11LL Role of independent children's lawyer

When section applies

(1) This section applies if a direction is made under section 11LK

(direction for independent representation of child's interests).

General nature of role of independent children's lawyer

(2) The independent children's lawyer must:

(a) form an independent view, based on the information

available to the independent children's lawyer, of what is in

the best interests of the child; and

(b) act in relation to the parenting management hearing in what

the independent children's lawyer believes to be the best

interests of the child.

(3) The independent children's lawyer must, if satisfied that the

adoption of a particular course of action is in the best interests of

the child, make a submission to the Panel suggesting the adoption

of that course of action.

(4) The independent children's lawyer:

(a) is not the child's legal representative; and

(b) is not obliged to act on the child's instructions in relation to

the parenting management hearing.

Specific duties of independent children's lawyer

(5) The independent children's lawyer must:

(a) act impartially in dealings with the parties to the parenting

management hearing; and

(b) ensure that any views expressed by the child in relation to the

matters to which the hearing relates are fully put before the

Panel; and

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used in the hearing:

(i) analyse the report or other document to identify those

matters in the report or other document that the

independent children's lawyer considers to be the most

significant ones for determining what is in the best

interests of the child; and

(ii) ensure that those matters are properly drawn to the

Panel's attention; and

(d) endeavour to minimise the trauma to the child associated

with the hearing; and

(e) facilitate an agreed resolution of matters at issue in the

hearing to the extent to which doing so is in the best interests

of the child.

Disclosure of information

(6) Subject to subsection (7), the independent children's lawyer:

(a) is not under an obligation to disclose to the Panel; and

(b) cannot be required to disclose to the Panel;

any information that the child communicates to the independent

children's lawyer.

(7) The independent children's lawyer may disclose to the Panel any

information that the child communicates to the independent

children's lawyer if the independent children's lawyer considers

the disclosure to be in the best interests of the child.

(8) Subsection (7) applies even if the disclosure is made against the

wishes of the child.

11LM Direction that child be made available for examination

(1) This section applies if a direction is made under section 11LK

(direction for independent representation of child's interests).

(2) The Panel may, on application by the independent children's

lawyer, direct a party to the parenting management hearing to

make the child available, as specified in the direction, for an

examination to be made for the purpose of preparing a report about

the child for use by the independent children's lawyer in

connection with the hearing.

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11LN Admissibility of communications during hearings

(1) Evidence of anything said, or any admission made, by or in the

company of the Panel or a Panel member in relation to a parenting

management hearing is admissible in proceedings before a court

under this Act.

(2) Subsection (1) does not apply to a thing said or an admission made

by a person who, at the time of saying the thing or making the

admission, had not been informed of the effect of subsection (1).

(3) Despite subsection (2), a thing said or admission made is

admissible even if the person who said the thing or made the

admission had not been informed of the effect of subsection (1), if:

(a) it is an admission by an adult that indicates that a child under

18 has been abused or is at risk of abuse; or

(b) it is a disclosure by a child under 18 that indicates that the

child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of

the admission or disclosure available to the court from other

sources.

Subdivision C--Powers of the Panel

11M Panel may direct parties to attend, or arrange for child to

attend, appointments with a family consultant

(1) At any stage after:

(a) an application for a parenting determination in relation to a

child has been made under section 11K; and

(b) consent to the application as required by section 11KC has

been given;

the Panel may give either or both of the following directions:

attend an appointment (or a series of appointments) with a

family consultant;

(d) that one or more parties to the parenting management hearing

arrange for a child to attend an appointment (or a series of

appointments) with a family consultant.

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(2) When making a direction under subsection (1), the Panel must

inform the parties to the parenting management hearing of the

effect of section 11MA (consequences of failure to comply with

direction).

11MA Consequences of failure to comply with direction under

section 11M

(1) If a person who is directed to attend an appointment with a family

consultant under section 11M fails to comply with:

(a) the direction made by the Panel; or

(b) any instruction the consultant gives to the person;

the consultant must report the failure to the Panel.

(2) If:

(a) a person fails to comply with a direction under section 11M

that he or she arrange for a child to attend an appointment

with a family consultant; or

(b) a child fails to attend an appointment with a family

consultant as arranged in compliance with a direction under

section 11M;

the consultant must report the failure to the Panel.

(3) On receiving a report under subsection (1) or (2), the Panel may

give any further directions it considers appropriate.

11MB Panel may request reports and other services from family

consultants

(1) The Panel may request a family consultant to:

(a) give the Panel a report; or

(b) undertake an investigation; or

consultants set out in subsection 11A(2);

on such matters relevant to a parenting management hearing as the

Panel thinks desirable.

(2) The power under subsection (1) may be exercised at any stage

after:

(a) an application for a parenting determination in relation to a

child has been made under section 11K; and

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(b) consent to the application as required by section 11KC has

been given.

(3) If a request is made under subsection (1) to give the Panel a report,

the family consultant must:

(a) ascertain the views of the child in relation to that matter; and

(b) include the views of the child on that matter in the report.

Note:

A person cannot require a child to express his or her views in relation

to any matter (see subsection 11JC(3)).

(4) Subsection (3) does not apply if complying with that subsection

would be inappropriate because of:

(a) the child's age or maturity; or

(b) some other special circumstance.

(5) The family consultant may include in the report, in addition to the

matters required to be included in it, any other matters that relate to

the care, welfare or development of the child.

(6) For the purposes of the preparation of the report, an investigation

or other task requested under subsection (1), the Panel may give

any directions that the Panel considers appropriate (including

directions that one or more parties to the parenting management

hearing attend, or arrange for the child to attend, an appointment or

a series of appointments with a family consultant).

(7) If:

(a) a person fails to comply with a direction under

subsection (6); or

(b) a child fails to attend an appointment with a family

consultant as arranged in compliance with a direction under

subsection (6);

the family consultant must notify the Panel of the failure.

(8) On receiving a notification under subsection (7), the Panel may

give such further directions in relation to the preparation of the

report, the investigation or other task requested under

subsection (1) as it considers appropriate.

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11MC Panel may refer parties to family counselling, family dispute

resolution and other family services

(1) The Panel may, at any stage in a parenting management hearing,

give one or more of the following directions:

(a) that one or more parties to the hearing attend family

counselling;

(b) that the parties to the hearing attend family dispute

resolution;

appropriate course, program or other service.

(2) The Panel may suggest a particular purpose for the attendance or

participation.

(3) The Panel may give any other directions it considers reasonably

necessary or appropriate in relation to the direction.

11MD Consequences of failure to comply with direction under

section 11MC

(1) If a party to a parenting management hearing fails to comply with a

direction of the Panel under section 11MC, the family counsellor,

family dispute resolution practitioner or provider of the course,

program or other service must report the failure to the Panel.

(2) On receiving the report, the Panel may give any directions that it

considers appropriate.

11ME Powers to obtain information or documents

(1) Subsection (2) applies if the Panel is satisfied that a person has

information or documents that are likely to assist in:

(a) the resolution of a matter before the Panel; or

(b) the expeditious and efficient conduct of a parenting

management hearing.

(2) The Panel may, by written notice given to the person, require the

person to give the Panel specified information, or produce to the

Panel specified documents.

Note:

A failure to comply with the notice is an offence (see section 11R).

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(3) The notice must state:

(a) how the person is to give the information or documents; and

(b) the period within which the person is to give the information

or documents (which must be at least 14 days after the notice

is given); and

section 11R; and

(d) the effect of sections 137.1 and 137.2 of the Criminal Code.

(4) The notice may require the person to give the information by

appearing before the Panel to answer questions.

(5) A person is not excused from providing information, or producing

a document, under subsection (2) on the ground that the provision

of information or the production of the document might tend to

incriminate the person or expose the individual to a penalty.

(6) However, in the case of an individual:

(a) the information given or document produced; and

(b) giving the information or producing the document; and

indirect consequence of giving the information or producing

the document;

are not admissible in evidence against the individual in any

criminal or civil proceedings, other than proceedings under

section 137.1 or 137.2 of the Criminal Code in relation to giving

the information or producing the document.

11MF Where interested person makes allegation of child abuse

(1) This section applies if an interested person in an application for a

parenting determination alleges that a child to whom the

application relates has been abused or is at risk of being abused.

Note:

If the allegation relates to child sexual abuse, the application for a

parenting determination must be dismissed (see subsection 11NA(3)).

(2) The interested person must:

(a) give a notice to the Panel in the form approved in accordance

with the Principal Member directions; and

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(b) give a true copy of the notice to the person who is alleged to

have abused the child or from whom the child is alleged to be

at risk of abuse.

(3) If a notice under subsection (2) is given to the Panel, the Principal

Member must, as soon as practicable, notify a prescribed child

welfare authority.

(4) This section does not apply if:

(a) the interested person is also an interested person in

proceedings under this Act (within the meaning of

section 67Z); and

(b) the interested person has alleged that a child to whom the

proceedings relate has been abused or is at risk of being

abused; and

whom the application relates; and

(d) the application has been referred to the Panel under

section 13L; and

(e) the interested person has filed a notice in accordance with

section 67Z in relation to the allegation.

(5) In this section:

interested person, in an application for a parenting determination,

means:

(a) a party to the parenting management hearing to which the

application relates; or

(b) if a child's interests are represented by a lawyer in relation to

the application--the lawyer; or

purposes of this paragraph.

11MG Where Panel or staff member suspects child abuse etc.

(1) This section applies to a person in the course of performing duties

or functions, or exercising powers:

(a) as a Panel member; or

(b) as a member of the staff assisting the Panel.

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(2) If the person has reasonable grounds for suspecting that a child has

been abused, or is at risk of being abused, the person must, as soon

as practicable, notify a prescribed child welfare authority of his or

her suspicion and the basis for the suspicion.

(3) If the person has reasonable grounds for suspecting that a child:

(a) has been ill treated, or is at risk of being ill treated; or

(b) has been exposed or subjected, or is at risk of being exposed

or subjected, to behaviour which psychologically harms the

child;

the person may notify a prescribed child welfare authority of his or

her suspicion and the basis for the suspicion.

Note:

The obligation under subsection (2) to notify a prescribed child

welfare authority of a suspicion that a child has been abused or is at

risk of being abused must be complied with, regardless of whether this

subsection also applies to the same situation.

(4) The person need not notify a prescribed child welfare authority of

his or her suspicion that a child has been abused, or is at risk of

being abused, if the person knows that the authority has previously

been notified about the abuse or risk under:

(a) subsection (2) of this section; or

(b) subsection 11MF(3), 67Z(3) or 67ZA(2);

but the person may notify the authority of his or her suspicion.

(5) If notice under this section is given orally, written notice

confirming the oral notice is to be given to the prescribed child

welfare authority as soon as practicable after the oral notice.

(6) If the person notifies a prescribed child welfare authority under this

section or subsection 11MF(3), the person may make such

disclosures of other information as the person reasonably believes

are necessary to enable the authority to properly manage the matter

the subject of the notification.

11MH No liability for notification under section 11MF or 11MG

(1) A person:

(a) must give notice under subsection 11MF(3) or 11MG(2); or

(b) may give notice under subsection 11MG(3) or (4); or

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in spite of any obligation of confidentiality imposed on the person

by this Act, another Act, another law or anything else (including a

contract or professional ethics).

(2) A person is not liable in civil or criminal proceedings, and is not to

be considered to have breached any professional ethics, in respect

of a notification under subsection 11MF(3) or 11MG(2).

(3) A person is not liable in civil or criminal proceedings, and is not to

be considered to have breached any professional ethics, in respect

of a notification under subsection 11MG(3) or (4), or a disclosure

under subsection 11MG(6), if the notification or disclosure is made

in good faith.

(4) Evidence of a notification under subsection 11MF(3) or

subsection 11MG(2), (3) or (4), or a disclosure under

subsection 11MG(6), is not admissible in any court except where

that evidence is given by the person who made the notification or

disclosure.

(5) In this section:

court means a court (whether or not exercising jurisdiction under

this Act) and includes a tribunal or other body concerned with

professional ethics.

11MJ Where interested person makes allegation of family violence

(1) This section applies if an interested person in an application for a

parenting determination in relation to a child alleges, as a

consideration that is relevant to whether the Panel should make or

refuse to make the determination, that:

(a) there has been family violence by one of the parties to the

parenting management hearing; or

(b) there is a risk of family violence by one of the parties to the

parenting management hearing.

(2) The interested person must:

(a) give a notice to the Panel in the form approved in accordance

with the Principal Member directions; and

(b) give a true copy of the notice to the party referred to in

paragraph (1)(a) or (b).

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(3) If the alleged family violence (or risk of family violence) is abuse

of a child (or a risk of abuse of a child):

(a) the interested person making the allegation must either give a

notice under subsection (2) of this section or under

subsection 11MF(2) (but does not have to give a notice under

both those subsections); and

(b) if the notice is given under subsection (2) of this section, the

Principal Member must deal with the notice as if it had been

given under subsection 11MF(2).

(4) This section does not apply if:

(a) the interested person is also an interested person in

proceedings under this Act (within the meaning of

section 67ZBA); and

(b) the interested person has alleged that there has been, or there

is a risk of, family violence by one of the parties to the

proceedings; and

whom the application relates; and

(d) the application has been referred to the Panel under

section 13L; and

(e) the interested person has filed a notice in accordance with

section 67ZBA in relation to the allegation.

(5) In this section:

interested person, in an application for a parenting determination,

means:

(a) a party to the parenting management hearing to which the

application relates; or

(b) if a child's interests are represented by a lawyer in relation to

the application--the lawyer; or

purposes of this paragraph.

11MK Documents or information relating to child abuse or family

violence

(1) The Panel may, at any time during a parenting management

hearing, give a direction requiring a prescribed State or Territory

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agency to provide the Panel with the documents or information

specified in the direction.

(2) The documents or information specified in the direction must be

documents recording, or information about, one or more of the

following:

(a) any notifications to the agency of suspected abuse of a child

to whom the parenting management hearing relates or of

suspected family violence affecting the child;

(b) any assessments by the agency of investigations into a

notification of that kind or the findings or outcomes of those

investigations;

investigating a notification.

(3) Nothing in the direction is to be taken to require the agency to

provide the Panel with:

(a) documents or information not in the possession or control of

the agency; or

(b) documents or information that include the identity of the

person who made a notification.

(4) A law of a State or Territory has no effect to the extent that it

would, apart from this subsection, hinder or prevent an agency

complying with the direction.

(5) The Panel must disclose to the parties to the parenting management

hearing any documents or information, provided in response to the

direction, on which the Panel intends to rely.

(6) Despite subsection (5), the Panel must not disclose the identity of

the person who made a notification, or information that could

identify that person, unless:

(a) the person consents to the disclosure; or

(b) the Panel is satisfied that the identity or information is

critically important to the hearing and that failure to make the

disclosure would prejudice the proper consideration of the

application for a parenting determination.

(7) Before making a disclosure for the reasons in paragraph (6)(b), the

Panel must ensure that the agency that provided the identity or

information:

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(a) is notified about the intended disclosure; and

(b) is given an opportunity to respond.

Subdivision D--Dismissing applications

11N Power to dismiss may be exercised at any time

The power to dismiss an application for a parenting determination

in accordance with this Subdivision may be exercised at any time

after the application has been received by the Panel.

11NA When Panel must dismiss an application for parenting

determination

When relevant consent is not given

(1) The Panel must dismiss an application for a parenting

determination in relation to a child if the consent to the application

required by section 11KC is not given in accordance with that

section.

When application is for the relocation of the child

(2) The Panel must dismiss an application for a parenting

determination in relation to a child if the application seeks a

change of where the child lives in such a way as to substantially

affect the child's ability to live with or spend time with a parent or

other person who is significant to the child's care, welfare and

development.

When application alleges child sexual abuse or risk of child sexual

abuse

(3) The Panel must dismiss an application for a parenting

determination in relation to a child if:

(a) a party to the parenting management hearing to which the

application relates alleges that the child has been subject to

child sexual abuse, or is at risk of child sexual abuse; or

(b) the Panel has reasonable grounds for suspecting that the child

has been subject to child sexual abuse, or is at risk of child

sexual abuse.

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When the child is under the care of a person under a child welfare

law

(4) The Panel must dismiss an application for a parenting

determination in relation to a child if the child is under the care

(however described) of a person under a child welfare law.

Note:

The Panel must also dismiss an application if it appears that a court or

authority proposes to place the child under the care of a person under a

child welfare law (see subsection 11PG(2)).

When a final parenting determination in force

(5) The Panel must dismiss an application for a parenting

determination in relation to a child if a final parenting

determination is in force in relation to the child.

(6) Despite subsection (5), the Panel may continue to deal with the

application if the Panel is satisfied that there has been a significant

change in circumstances relating to the child.

When relevant court proceedings are instituted

(7) The Panel must dismiss an application for a parenting

determination in relation to a child if proceedings under this Act

are instituted in relation to the child (whether the proceedings are

instituted before or after the application for a parenting

determination is made).

(8) Subsection (7) does not apply if one or more matters relating to the

proceedings have been referred to the Panel under section 13L.

When a parenting order is in force

(9) The Panel must dismiss an application for a parenting

determination in relation to a child if a parenting order (other than

an interim parenting order) is in force in relation to the child.

(10) Despite subsection (9), the Panel may continue to deal with the

application if the Panel is satisfied that there has been a significant

change in circumstances relating to the child.

(11) Subsection (10) does not apply if the parenting order includes a

provision that the parenting order, or a specified provision of the

parenting order, must not be varied by a parenting determination.

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Note:

For the power to include such provisions in parenting orders, see

section 64E.

When there is a registered parenting plan

(12) The Panel must dismiss an application for a parenting

determination in relation to a child if a registered parenting plan is

in force in relation to the child.

When there is a registered overseas child order

(13) The Panel must dismiss an application for a parenting

determination in relation to a child if an overseas child order is

registered under section 70G in relation to the child.

When all parties request application be dismissed

(14) The Panel must dismiss an application for a parenting

determination if all of the parties to the parenting management

hearing to which the application relates request, in writing, that the

application be dismissed.

When parenting management hearing fee has not been paid

(15) The Panel must dismiss an application for a parenting

determination if:

(a) the regulations prescribe a fee that is payable in respect of

parenting management hearings; and

(b) the fee has not been paid within the period prescribed by the

regulations.

Meaning of child sexual abuse

(16) Child sexual abuse means:

(a) a sexual assault of a child; or

(b) a person (the first person) involving a child in a sexual

activity with the first person or another person in which the

child is used, directly or indirectly, as a sexual object by the

first person or the other person, and where there is unequal

power in the relationship between the child and the first

person.

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11NB Application for parenting determination may be dismissed if

Panel considers it is appropriate

(1) The Panel may dismiss an application for a parenting

determination in relation to a child if the Panel is satisfied that it is

appropriate in all the circumstances to do so.

(2) In exercising the power under subsection (1), the Panel may have

regard to the following matters:

(a) the complexity of the matters for consideration by the Panel;

(b) the capacity of the Panel to manage any risks relating to the

safety of the parties or the child;

consideration in a manner consistent with the objective of the

Panel referred to in subsection 11TA(1);

(d) the capacity of a party to effectively participate in the

parenting management hearing, having regard to any power

imbalances between the parties or any other relevant factor;

(e) if a family violence order applies, or has applied, to the child

or a member of the child's family--any relevant inferences

that can be drawn from the order;

(f) any other matter that the Panel considers relevant.

(3) Without limiting subsection (1), the Panel must consider whether

to dismiss an application under that subsection if the Panel has

reasonable grounds for suspecting that:

(a) there has been abuse of the child (other than child sexual

abuse) by one of the parties to the parenting management

hearing; or

(b) there is a risk of abuse of the child (other than child sexual

abuse) by one of the parties to the hearing; or

hearing; or

(d) there is a risk of family violence by one of the parties to the

hearing.

(4) Subsection (3) applies whether or not a notice has been given to the

Panel under subsection 11MF(2) or 11MJ(2).

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11NC Application may be dismissed if consent obtained by fraud

etc.

The Panel may dismiss an application for a parenting

determination if the Panel is satisfied that the consent of a party to

the application was obtained by fraud, threat, duress or coercion.

11ND Application may be dismissed if frivolous etc.

(1) The Panel may dismiss an application for a parenting

determination if the Panel is satisfied that the application:

(a) is frivolous or vexatious; or

(b) is otherwise an abuse of the process of the Panel.

(2) If the Panel dismisses an application under subsection (1), it may

give a written direction that the person who made the application

must not, without leave of the Panel, make a subsequent

application to the Panel of a kind specified in the direction.

(3) The Panel may vary or revoke the direction.

(4) The direction has effect despite any other provision of this Act.

11NE Application may be dismissed where failure to proceed etc.

The Panel may dismiss an application for a parenting

determination if a party to the parenting management hearing to

which the application relates:

(a) fails within a reasonable time to proceed with the application;

(b) fails to comply with a direction given by the Panel in relation

to the application.

11NF Application may be dismissed on request by a party to the

hearing if Panel satisfied it is appropriate

The Panel may dismiss an application for a parenting

determination if:

(a) a party to the parenting management hearing to which the

application relates requests, in writing, that the application be

dismissed; and

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(b) the Panel is satisfied that it is appropriate in the

circumstances to dismiss the application.

Note:

The Panel must dismiss an application if all of the parties to the

hearing request that it be dismissed (see subsection 11NA(14)).

11NG Power of Panel to reinstate application

Applications dismissed in error

(1) If it appears to the Panel that an application for a parenting

determination has been dismissed in error, the Panel may:

(a) reinstate the application; and

(b) give such directions as appear to it to be appropriate in the

circumstances.

Applications returned to the Panel by a court

(2) If:

(a) a court refers a matter arising in proceedings in relation to a

child to the Panel under section 13L; and

(b) the matter deals with issues covered by an application for a

parenting determination in relation to the child that has been

dismissed by the Panel;

the Panel may:

(d) give such directions as appear to it to be appropriate in the

circumstances.

Subdivision E--Parenting determinations

11P Power to make parenting determinations

(1) This section applies if an application for a parenting determination

is made under section 11K.

Note:

If a court makes an order referring matters in proceedings to the Panel,

the parties are taken to have made an application for a parenting

determination (see subsection 13L(5)).

(2) Subject to section 11JE (presumption of equal shared parental

responsibility when making parenting determinations) and this

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Division, the Panel may make any parenting determination in

relation to a child as it thinks proper.

(3) In deciding whether to make a particular parenting determination

in relation to a child, the Panel must regard the best interests of the

child as the paramount consideration.

11PA Panel to consider risk of family violence when making

determinations

(1) In considering what parenting determination to make in relation to

a child, the Panel must, to the extent that it is possible to do so

consistently with the child's best interests being the paramount

consideration, ensure that the determination does not expose a

person to an unacceptable risk of family violence.

(2) For the purposes of subsection (1), the Panel may include in the

determination any safeguards that it considers necessary for the

safety of those affected by the determination.

11PB How parenting determinations are made

Parenting determinations

(1) A parenting determination may be made orally or in writing.

(2) The Panel must give a written copy of the parenting determination

to each party to the parenting management hearing:

(a) within 28 days after the determination is made; or

(b) within such longer period as the Principal Member allows.

(3) The Panel must also give each party to the parenting management

hearing a notice that includes a statement setting out the following

matters:

(a) that each party may request, under subsection (6), written

reasons for the parenting determination;

(b) each party's right to appeal to the Federal Circuit Court on a

question of law (see section 11Q).

Reasons for parenting determinations

(4) The Panel must give reasons for a parenting determination.

Reasons may be given orally or in writing.

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(5) If the Panel does not give written reasons for a parenting

determination, the Panel must give each party a notice stating that

the parties to the parenting management hearing may request,

under subsection (6), written reasons for the determination.

(6) A party to the parenting management hearing to which a parenting

determination relates may request the Panel to give the party a

statement in writing of the reasons for the determination.

(7) A request under subsection (6):

(a) may only be made within 28 days after the written copy of

the parenting determination is provided to the party making

the request; and

(b) must be complied with:

(i) within 28 days after the request is received; or

(ii) within such longer period as the Principal Member

allows.

Failure to comply does not affect validity of determination

(8) A failure to comply with this section in relation to a parenting

determination does not affect the validity of the determination.

11PC Duties of the Panel when making parenting determinations

(1) This section applies when the Panel makes a parenting

determination.

(2) It is the duty of the Panel to include in the determination particulars

of:

(a) the obligations that the determination creates; and

(b) the consequences that may follow if a person contravenes the

determination.

(3) If any of the persons to whom the parenting determination is

directed is not represented by a legal practitioner, it is also the duty

of the Panel to explain to the person, or to each of the persons:

(a) the availability of programs to help people to understand their

responsibilities under parenting determinations; and

(b) the availability and use of location and recovery orders to

ensure that parenting determinations are complied with.

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(4) The Panel may cause to be prepared, and given to persons to whom

a parenting determination is directed, a document setting out

particulars of the matters mentioned in paragraphs (3)(a) and (b).

(5) If a person to whom the parenting determination is directed is

represented by a legal practitioner, the Panel may request the

practitioner:

(a) to assist in explaining to the person the matters mentioned in

paragraphs (2)(a) and (b); and

(b) to explain to the person the matters mentioned in

paragraphs (3)(a) and (b).

(6) If a request is made by the Panel to a legal practitioner under

paragraph (5)(a) or (b), it is the duty of the practitioner to comply

with the request.

(7) Failure to comply with a requirement of, or with a request made

under, this section does not affect the validity of a parenting

determination.

(8) Any matter that is required by this section to be included in a

parenting determination or any explanation that is required by this

section to be given to a person is to be expressed in language that is

likely to be readily understood by the person to whom the

determination is directed or the explanation is given.

11PD Period for which a parenting determination is in force

(1) A parenting determination starts to operate on the day specified in

the determination.

Note:

The operation of a parenting determination may be stayed by the

Federal Circuit Court under subsection 11QA(2).

(2) Subject to subsection (3), a parenting determination remains in

force until the earliest of the following:

(a) the end of the period specified in the determination (if any);

(b) the determination is discharged, varied or suspended under

paragraph 11JG(1)(b);

subsection 11PF(2) or 11PX(2);

(d) the determination is revoked under section 11PW;

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(e) the determination is set aside under paragraph 11Q(4)(b) or

section 70NBAB;

(f) the determination is discharged under subsection 70LA(2).

(3) If, at a particular time:

(a) the Panel dismisses an application for a parenting

determination in relation to a child under Subdivision D; and

(b) at that time, an interim parenting determination is in force in

relation to the child;

the interim determination is revoked by force of this subsection at

that time.

11PE Parenting determination subject to later parenting plans

(1) Subject to subsection (2), a parenting determination in relation to a

child is taken to include a provision that the determination is

subject to a parenting plan that is:

(a) entered into subsequently by the child's parents; and

(b) agreed to, in writing, by any other person (other than the

child) to whom the parenting determination applies.

(2) The Panel may, in exceptional circumstances, include in a

parenting determination a provision that the parenting

determination, or a specified provision of the parenting

determination, may only be varied by a subsequent parenting

determination (and not by a parenting plan).

11PF Children who are 18 or over or who have married or

entered de facto relationships

(1) A parenting determination must not be made in relation to a child

who:

(a) is 18 or over; or

(b) is or has been married; or

(2) A parenting determination in relation to a child stops being in force

if the child turns 18, marries or enters into a de facto relationship.

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11PG Interaction with child welfare laws

(1) Nothing in this Part, and no determination made under this Part

affects:

(a) the jurisdiction of a court, or the power of an authority, under

a child welfare law to make an order, or to take any other

action, by which a child is placed under the care (however

described) of a person under a child welfare law; or

(b) any such order made or action taken; or

(2) If it appears to the Panel that a court or an authority proposes to

make an order, or to take any other action, of the kind referred to in

paragraph (1)(a) in relation to a child, the Panel must dismiss any

application before it that relates to the child.

11PH Interaction with existing family violence orders

The Panel must not make a parenting determination that is

inconsistent with an existing family violence order.

Note:

See also sections 11PY and 68R for additional provisions dealing with

the interaction between family violence orders and parenting

determinations.

11PJ Effect of parenting determinations that provide for shared

parental responsibility

(1) This section applies if, under a parenting determination in relation

to a child:

(a) 2 or more persons are to share parental responsibility for the

child; and

(b) the exercise of that parental responsibility involves making a

decision about a major long-term issue in relation to the

child.

(2) The determination is taken to require the decision to be made

jointly by those persons.

Note:

Subject to any court orders or parenting determinations, decisions

about issues that are not major long-term issues are made by the

person with whom the child is spending time without a need to consult

the other person (see section 11PK).

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(3) The determination is taken to require each of those persons:

(a) to consult the other person or persons in relation to the

decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about

that issue.

(4) To avoid doubt, this section does not require any other person to

establish, before acting on a decision about the child

communicated by one of those persons, that the decision has been

made jointly.

11PK No need to consult on issues that are not major long-term

issues

(1) If a child is spending time with a person at a particular time under a

parenting determination, the determination is taken not to require

the person to consult a person who:

(a) has parental responsibility for the child; or

(b) shares parental responsibility for the child with another

person;

about decisions that are made in relation to the child during that

time on issues that are not major-long term issues.

Note:

This will mean that the person with whom the child is spending time

will usually not need to consult on decisions about such things as what

the child eats or wears because these are usually not major long-term

issues.

(2) Subsection (1) applies subject to any provision to the contrary

made by a parenting determination in relation to the child.

11PL Panel to consider child spending equal time or substantial and

significant time with each parent in certain circumstances

Equal time

(1) If a parenting determination provides (or is to provide) that a

child's parents are to have equal shared parental responsibility for

the child, the Panel must:

(a) consider whether the child spending equal time with each of

the parents would be in the best interests of the child; and

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(b) consider whether the child spending equal time with each of

the parents is reasonably practicable; and

(or including a provision in the determination) for the child to

spend equal time with each of the parents.

Note 1:

The effect of subsection 11P(3) is that, in deciding whether to go on to

make a parenting determination for the child to spend equal time with

each of the parents, the Panel will regard the best interests of the child

as the paramount consideration.

Note 2:

See subsection (5) for the factors the Panel has regard to in

determining what is reasonably practicable.

Substantial and significant time

(2) If:

(a) a parenting determination provides (or is to provide) that a

child's parents are to have equal shared parental

responsibility for the child; and

(b) the Panel does not make a parenting determination (or

include a provision in the determination) for the child to

spend equal time with each of the parents;

the Panel must:

significant time with each of the parents would be in the best

interests of the child; and

(d) consider whether the child spending substantial and

significant time with each of the parents is reasonably

practicable; and

(e) if it is, consider making a parenting determination to provide

(or including a provision in the determination) for the child to

spend substantial and significant time with each of the

parents.

Note 1:

The effect of subsection 11P(3) is that in deciding whether to go on to

make a parenting determination for the child to spend substantial time

with each of the parents, the Panel will regard the best interests of the

child as the paramount consideration.

Note 2:

See subsection (5) for the factors the Panel has regard to in

determining what is reasonably practicable.

(3) For the purposes of subsection (2), a child will be taken to spend

substantial and significant time with a parent only if:

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(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to

be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance

to the child; and

be involved in occasions and events that are of special

significance to the parent.

(4) Subsection (3) does not limit the other matters to which the Panel

can have regard in determining whether the time a child spends

with a parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether

it is reasonably practicable for a child to spend equal time, or

substantial and significant time, with each of the child's parents,

the Panel must have regard to:

(a) how far apart the parents live from each other; and

(b) the parents' current and future capacity to implement an

arrangement for the child spending equal time, or substantial

and significant time, with each of the parents; and

each other and resolve difficulties that might arise in

implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on

the child; and

(e) such other matters as the Panel considers relevant.

Note:

Paragraph (c) reference to future capacity--the Panel has power under

section 11MC to direct parties to a parenting management hearing to

attend family counselling or family dispute resolution or participate in

courses, programs or services.

11PM Interaction with parenting plans

(1) When making a parenting determination in relation to a child, the

Panel must have regard to the terms of the most recent parenting

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plan (if any) that has been entered into between the child's parents

(to the extent to which that plan relates to the child) if doing so

would be in the best interests of the child.

(2) Subsection (1) does not apply to a registered parenting plan.

Note:

The Panel must dismiss an application for a parenting determination in

relation to a child if a registered parenting plan is in force in relation

to the child (see subsection 11NA(12)).

11PN Obligations created by parenting determinations

(1) This section applies to a parenting determination that is in force in

relation to a child.

Note 1:

For additional obligations created by parenting determinations, see

also Subdivision C of Division 8 of Part VII (about recovery and

location orders).

Note 2:

For provisions dealing with contraventions, and alleged

contraventions, of parenting determinations, see Division 13A of

Part VII.

(2) If the determination deals with who the child is to live with, a

person must not, contrary to the determination:

(a) remove the child from the care of a person; or

(b) refuse or fail to deliver or return the child to a person; or

powers, duties or responsibilities that a person has under the

determination.

(3) If the determination deals with who the child is to spend time with,

a person must not:

(a) hinder or prevent a person and the child from spending time

together in accordance with the determination; or

(b) interfere with a person and the child benefiting from

spending time with each other under the determination.

(4) If the determination deals with who the child is to communicate

with, a person must not:

(a) hinder or prevent a person and the child from communicating

with each other in accordance with the determination; or

(b) interfere with the communication that a person and the child

are supposed to have with each other under the

determination.

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(5) If the determination allocates parental responsibility for the child to

a person (the first person), another person must not hinder the first

person in, or prevent the first person from, discharging that

responsibility.

11PO Court may issue warrant for arrest of alleged offender in

relation to alleged contraventions of parenting

determinations

(1) This section applies if:

(a) a parenting determination provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; and

(b) a court having jurisdiction under this Act is satisfied, on

application by the person referred to in paragraph (1)(a), that

there are reasonable grounds for believing that a person (the

alleged offender) has contravened section 11PN in relation to

the determination; and

offender to be dealt with under Division 13A of Part VII for

the alleged contravention; and

(d) the court is satisfied that the issue of a warrant is necessary to

ensure that the alleged offender will attend before a court to

be dealt with under Division 13A of Part VII for the alleged

contravention.

(2) The court may issue a warrant authorising a person to whom it is

addressed to arrest the alleged offender.

(3) A warrant stops being in force:

(a) if a day not later than 6 months after the issue of the warrant

is specified in the warrant as the day when it stops being in

force--on that day; or

(b) otherwise--6 months after the issue of the warrant.

11PP Obligations if certain parenting determinations have been

made

(1) This section applies to a parenting determination to the extent to

which it provides, or would provide, that:

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(a) a child is to live with a person; or

(b) a child is to spend time with a person; or

(d) a person is to have parental responsibility for a child.

(2) A person who is or was a party to the parenting management

hearing in relation to which to the parenting determination is or

was made (or a person who is acting on behalf of, or at the request

of, a party) must not take or send the child concerned from

Australia to a place outside Australia except as permitted by

subsection (3).

Note:

The ancillary offence provisions of the Criminal Code, including

section 11.1 (attempts), apply in relation to the offence created by

subsection (2).

Penalty: Imprisonment for 3 years.

(3) Subsection (2) does not prohibit taking or sending the child from

Australia to a place outside Australia if:

(a) it is done with the consent in writing (authenticated as

prescribed) of each other party to the parenting management

hearing; or

(b) it is done in accordance with a parenting determination made

under this Part at the time of, or after, the making of the

determination referred to in subsection (2); or

Part VII or under a law of a State or Territory, at the time of,

or after, the making of the determination.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

11PQ Obligations if application for parenting determination has

been made etc.

(1) This section applies if:

(a) either:

(i) an application for a parenting determination in relation

to a child has been made but not yet finally determined;

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(ii) an appeal on a question of law in relation to a parenting

determination under section 11Q has been instituted but

not yet finally determined; and

(b) the parenting determination provides, or would provide, that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; or

(iv) a person is to have parental responsibility for a child.

(2) A person who is a party to the parenting management hearing to

which the application for the parenting determination relates (or

who is acting on behalf of, or at the request of, a party) must not

take or send the child concerned from Australia to a place outside

Australia except as mentioned in subsection (3).

Note:

The ancillary offence provisions of the Criminal Code, including

section 11.1 (attempts), apply in relation to the offence created by

subsection (2).

Penalty: Imprisonment for 3 years.

(3) Subsection (2) does not prohibit taking or sending the child from

Australia to a place outside Australia if:

(a) it is done with the consent in writing (authenticated as

prescribed) of each other party to the parenting management

hearing; or

(b) it is done in accordance with a parenting determination made

under this Part at the time of, or after, the application for the

determination referred to in subsection (2) was made; or

Part VII or under a law of a State or Territory after the

application for the determination was made.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

11PR Obligations of owners etc. of aircraft and vessels if certain

parenting determinations made

(1) This section applies if:

(a) a parenting determination which provides, or would provide,

for one or more of the following is in force:

(i) who the child is to live with;

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(ii) who a child is to spend time with;

(iii) who a child is to communicate with;

(iv) who is to have parental responsibility for a child; and

(b) a person in whose favour the parenting determination was

made has served on the captain, owner or charterer of an

aircraft or vessel a statutory declaration made by the person

not earlier than 7 days before the date of service that:

(i) relates to the determination; and

(ii) complies with subsection (5).

(2) The person on whom the declaration is served must not permit the

child identified in the declaration to leave a port or place in

Australia in the aircraft or vessel for a destination outside Australia

except as permitted by subsection (4).

Penalty: 60 penalty units.

(3) Subsection (2) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) Subsection (2) does not prohibit permitting the child to leave

Australia in the aircraft or vessel if:

(a) the child leaves in the company, or with the consent in

writing (authenticated as prescribed), of the person who made

the statutory declaration; or

(b) the child leaves in accordance with a parenting determination

made under this Part at the time of, or after, the making of the

determination referred to in subsection (1); or

under Part VII or under a law of a State or Territory, at the

time of, or after, the making of the determination.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) The statutory declaration must contain:

(a) full particulars of the parenting determination, including:

(i) the full name and the date of birth of the child to whom

the determination relates; and

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(ii) the full names of the parties to the parenting

management hearing in which the determination was

made; and

(iii) the terms of the determination; and

(b) such other matters (if any) as are prescribed by the Panel

rules.

11PS Obligations of owners etc. of aircraft and vessels if application

for parenting determination has been made etc.

(1) This section applies if:

(a) either:

(i) an application for a parenting determination in relation

to a child has been made but not yet finally determined;

(ii) an appeal on a question of law in relation to a parenting

determination under section 11Q has been instituted but

not yet finally determined; and

(b) the parenting determination provides, or would provide, that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; or

(iv) a person is to have parental responsibility for a child;

and

application or appeal relates has served on the captain, owner

or charterer of a vessel a statutory declaration made by the

party not earlier than 7 days before the date of service that:

(i) relates to the hearing; and

(ii) complies with subsection (5).

(2) The person on whom the declaration is served must not permit the

child identified in the declaration to leave a port or place in

Australia in the aircraft or vessel for a destination outside Australia

except as permitted by subsection (4).

Penalty: 60 penalty units.

(3) Subsection (2) does not apply if the person has a reasonable

excuse.

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Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) Subsection (2) does not prohibit permitting the child to leave

Australia in the aircraft or vessel if:

(a) the child leaves in the company, or with the consent in

writing (authenticated as prescribed), of the party who made

the statutory declaration; or

(b) the child leaves in accordance with a parenting determination

made under this Part at the time of, or after, the making of the

application or the instituting of the appeal; or

under Part VII or under a law of a State or Territory, after the

application is made or the appeal is instituted.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) The statutory declaration must contain:

(a) full particulars of the parenting management hearing,

including:

(i) the full name and the date of birth of the child to whom

the hearing relates; and

(ii) the full names of the parties to the parenting

management hearing; and

(iii) the date the application was made or the appeal was

instituted; and

(b) a statement that the application for the parenting

determination has not been finally determined at the date of

the declaration; and

rules.

11PT General provisions applicable to sections 11PR and 11PS

(1) A declaration under section 11PR or 11PS may be served on the

owner or charterer of an aircraft or vessel, or on the agent of the

owner of an aircraft or vessel, by sending the declaration by

registered post addressed to the owner, charterer or agent at the

principal place of business of the owner, charterer or agent.

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(2) The captain, owner or charterer of an aircraft or vessel, or the agent

of the owner of an aircraft or vessel, is not liable in any civil or

criminal proceedings in respect of anything done in good faith for

the purpose of complying with section 11PR or 11PS.

(3) If an act or omission by a person that constitutes an offence against

subsection 11PR(2) or 11PS(2) is also an offence against any other

law, the person may be prosecuted and convicted under that other

law, but nothing in this subsection makes a person liable to be

punished twice in respect of the same act or omission.

11PU State or Territory laws stopping children leaving Australia

not affected

Nothing in sections 11PP, 11PQ, 11PR, 11PS or 11PT or in this

section prevents or restricts the operation of any law of a State or

Territory under which:

(a) action may be taken to prevent a child from leaving Australia

or being taken or sent outside Australia; or

(b) a person may be punished in respect of the taking or sending

of a child outside Australia.

11PV Publication of parenting determinations

(1) The Panel may, by any means it considers appropriate, publish

parenting determinations and the reasons for them.

(2) Subsection (1) does not authorise the Panel to publish information

the disclosure of which is prohibited or restricted by or under this

Act.

11PW Parenting determinations are automatically revoked if

certain court orders made

(1) A parenting determination in relation to a child is automatically

revoked if the court makes an order under Part VII in relation to

the child.

(2) Subsection (1) does not apply to the extent, if any, provided by the

court in the order.

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(3) Subsection (1) also does not apply if the order is made under any

of the following:

(a) section 67M (about location orders);

(b) section 67N (about Commonwealth information orders);

(d) section 68R (which deals with family violence orders).

11PX Effect of adoption on parenting determinations

(1) This section applies if:

(a) a child is adopted; and

(b) immediately before the adoption, a parenting determination

was in force in relation to the child.

(2) The determination stops being in force on the adoption of the child,

unless the adoption is by a prescribed adopting parent and leave

was not granted under section 60G for the adoption proceedings to

be commenced.

11PY Subsequent family violence order invalid to extent of

inconsistency with parenting determination

(1) This section applies if there is a parenting determination in relation

to a child that provides for the child to spend time with a person, or

expressly or impliedly requires or authorises a person to spend time

with the child.

(2) If:

(a) a family violence order is made after the determination is

made; and

(b) the family violence order is inconsistent with the

determination;

the determination prevails, and the family violence order is, to the

extent of the inconsistency, invalid.

11PZ What happens when parenting determination that deals with

who a child lives with does not make provision in relation

to death of parent with whom child lives

(1) This section applies if:

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(a) a parenting determination is in force that provides that a child

is to live with one of the child's parents; and

(b) that parent dies; and

happen on that parent's death.

(2) The surviving parent cannot require the child to live with him or

her.

(3) The surviving parent or (subject to section 11K) another person

may apply for a parenting determination that deals with who the

child is to live with.

(4) In an application referred to in subsection (3) by a person who does

not, at the time of the application, have any parental responsibility

for the child, any person who, at that time, has any parental

responsibility for the child is entitled to be a party to the parenting

management hearing.

Subdivision F--Appeals to the Federal Circuit Court

11Q Appeals to the Federal Circuit Court

Appeal on questions of law from Panel determination or decision

(1) A party to a parenting management hearing may appeal to the

Federal Circuit Court, on a question of law, from any decision or

determination of the Panel in that hearing.

(2) An appeal must be instituted:

(a) within 28 days after the day the decision or determination of

the Panel is made, or within such further time as the Federal

Circuit Court (whether before or after the end of that period)

allows; and

(b) in such manner as is prescribed by rules of court made under

the Federal Circuit Court of Australia Act 1999.

Jurisdiction

(3) The Federal Circuit Court has jurisdiction to hear and determine

appeals instituted in the Federal Circuit Court in accordance with

this section.

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Orders

(4) On hearing and determining the appeal, the Federal Circuit Court

may make one of the following orders:

(a) an order affirming the decision or determination of the Panel;

(b) an order setting aside the decision or determination and

remitting the matter to be decided or determined again by the

Panel in accordance with the directions of the Federal Circuit

Court.

Federal Circuit Court may make findings of fact

(5) If a party to a parenting management hearing appeals to the Federal

Circuit Court under subsection (1), the Court may make findings of

fact if:

(a) the findings of fact are not inconsistent with findings of fact

made by the Panel (other than findings made by the Panel as

the result of an error of law); and

(b) it appears to the Court that it is convenient for the Court to

make the findings of fact, having regard to:

(i) the extent (if any) to which it is necessary for facts to be

found; and

(ii) the means by which those facts might be established;

and

(iii) the expeditious and efficient resolution of the whole of

the matter to which the parenting management hearing

before the Panel relates; and

(iv) the relative expense to the parties of the Court, rather

than the Panel, making the findings of fact; and

(v) the relative delay to the parties of the Court, rather than

the Panel, making the findings of fact; and

(vi) whether any of the parties considers that it is

appropriate for the Court, rather than the Panel, to make

the findings of fact; and

(vii) such other matters (if any) as the Court considers

relevant.

(6) For the purposes of making findings of fact under subsection (5),

the Federal Circuit Court may:

(a) have regard to statements made and other information given

in the parenting management hearing before the Panel; and

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(b) receive evidence.

(7) Subsection (6) does not limit the Federal Circuit Court's power

under subsection (4) to make an order remitting the matter to be

heard and decided again by the Panel.

(8) The jurisdiction of the Federal Circuit Court under subsection (3)

includes jurisdiction to make findings of fact under subsection (5).

11QA Operation and implementation of a decision or determination

that is subject to appeal

Operation of decision or determination

(1) Subject to this section, the institution of an appeal to the Federal

Circuit Court from a decision or determination of the Panel:

(a) does not affect the operation of the decision or determination;

and

(b) does not prevent the taking of action to implement the

decision or determination.

Court or judge may make orders

(2) If an appeal is instituted in the Federal Circuit Court from a

decision or determination of the Panel, the Court or a judge of the

Court may make such order staying or otherwise affecting the

operation or implementation of the decision or determination of the

Panel that the Court or judge considers appropriate for the purpose

of securing the effectiveness of the hearing and determination of

the appeal.

Court or judge may vary orders

(3) The Federal Circuit Court or a judge of the Federal Circuit Court

may vary or revoke an order made under subsection (2) at any

time.

Effect of orders

(4) An order under subsection (2):

(a) is subject to such conditions as are specified in the order; and

(b) has effect until:

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(i) if a period for the operation of the order is specified in

the order--the end of that period or, if a decision is

given on the appeal before the end of that period, the

giving of the decision or determination; or

(ii) if no period is so specified--the giving of a decision on

the appeal.

11QB Transmission of documents

If an appeal under section 11Q is instituted in the Federal Circuit

Court, the Panel must send to the Federal Circuit Court all relevant

documents that were before the Panel in connection with the matter

to which the appeal relates.

11QC Constitution of Panel if matter remitted etc.

If the Federal Circuit Court makes an order remitting a matter to be

heard and decided or determined again by the Panel:

(a) the Panel need not be constituted for the parenting

management hearing by the person or persons who made the

decision or determination to which the appeal relates; and

(b) whether or not the Panel is reconstituted for the hearing--the

Panel may, for the purposes of the hearing, have regard to

any record of the hearing before the Panel prior to the appeal,

so long as doing so is not inconsistent with the directions of

the Federal Circuit Court.

Subdivision G--Offences

11R Failure to comply with notice to give information or produce

documents

(1) A person commits an offence if:

(a) the person is given a notice under subsection 11ME(2); and

(b) the person fails to comply with the notice.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(2) Subsection (1) does not apply to the extent that the person has a

reasonable excuse.

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Note 1:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the Criminal Code).

Note 2:

Grounds that the information or documents might tend to incriminate

the person is not a reasonable excuse (see subsection 11ME(5)).

11RA Restriction on publication of parenting management hearings

Offence of publishing identifying accounts

(1) A person commits an offence if:

(a) the person publishes or otherwise disseminates to the public,

or a section of the public, by any means any account of a

parenting management hearing; and

(b) the account identifies:

(i) a party to the hearing; or

(ii) a person who is related to, or associated with, a party to

the hearing or is, or is alleged to be, in any other way

concerned in the matter to which the hearing relates; or

(iii) a witness in the hearing.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(2) Without limiting subsection (1), an account of a hearing, or of any

part of a hearing, referred to in that subsection is taken to identify a

person if:

(a) it contains any particulars of:

(i) the name, title, pseudonym or alias of the person; or

(ii) the address of any premises at which the person resides

or works, or the locality in which any such premises are

situated; or

(iii) the physical description or the style of dress of the

person; or

(iv) any employment or occupation engaged in, profession

practised or calling pursued, by the person or any

official or honorary position held by the person; or

(v) the relationship of the person to identified relatives of

the person or the association of the person with

identified friends or identified business, official or

professional acquaintances of the person; or

(vi) the recreational interests, or the political, philosophical

or religious beliefs or interests, of the person; or

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(vii) any real or personal property in which the person has an

interest or with which the person is otherwise

associated;

and the particulars are sufficient to identify that person to a

member of the public, or to a member of the section of the

public to which the account is disseminated, as the case

requires; or

(b) it is accompanied by a picture of the person; or

voice is sufficient to identify that person to a member of the

public, or to a member of the section of the public to which

the account is disseminated, as the case requires.

Offence of publishing identifying lists

(3) A person commits an offence if:

(a) the person publishes or otherwise disseminates to the public,

or to a section of the public, by any means (otherwise than by

the display of a notice in the premises of the Panel) a list of

parenting management hearings; and

(b) the hearings are identified by reference to the names of the

parties to the hearing (other than by reference to the Panel).

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Defence

(4) Subsections (1) and (3) do not apply to, or in relation to:

(a) the communication, to persons concerned with a parenting

management hearing, of any document for use in connection

with that hearing; or

(b) the communication of any document to authorities of States

and Territories that have responsibilities relating to the

welfare of children and are prescribed by the Panel rules for

the purposes of this paragraph; or

(i) a body that is responsible for disciplining members of

the legal profession in a State or Territory; or

(ii) persons concerned in disciplinary proceedings against a

member of the legal profession of a State or Territory,

being proceedings before a body that is responsible for

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disciplining members of the legal profession in that

State or Territory; or

(d) the communication, to a body that grants assistance by way

of legal aid, of any document for the purpose of facilitating

the making of a decision as to whether assistance by way of

legal aid should be granted, continued or provided in a

particular case; or

(e) the publishing of a notice or report in accordance with the

direction of the Panel; or

(f) the publication by the Panel of lists of parenting management

hearings under this Part, identified by reference to the names

of the parties to the parenting management hearing, that are

to be dealt with by the Panel; or

(g) the publishing of any publication of a technical character

bona fide intended primarily for use by the members of a

profession; or

(h) the publication of accounts of parenting management

hearings, where those accounts have been approved by the

Panel.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

Criminal proceedings

(5) Proceedings for an offence against subsection (1) or (3) must not

be commenced except by, or with the written consent of, the

Director of Public Prosecutions.

11RB Breach of non-disclosure direction

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes a direction under subsection 11LF(4)

or (5).

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

11RC Contempt of Panel

(1) A person commits an offence if:

(a) the person engages in conduct; and

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(b) the conduct obstructs or hinders the Panel or a Panel member

in the performance of the functions of the Panel.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct would, if the Panel were a court of record,

constitute a contempt of that court.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Subdivision H--Other matters

11S Protection of members and others appearing before the Panel

(1) A Panel member has, in the performance of his or her duties as a

member, the same protection and immunity as a Justice of the High

Court.

(2) Subject to this Act, a person appearing before the Panel in relation

to a parenting management hearing has the same protection, and is,

in addition to the penalties provided by this Act, subject to the

same liabilities, as a witness in proceedings in the High Court.

11SA Costs

Each party to a parenting management hearing must bear his or her

own costs in relation to the hearing.

11SB Panel rules

(1) The Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

Panel rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Part, or to Division 13A of Part VII (to

the extent that the Division relates to this Part).

(2) Without limiting subsection (1), the rules may make provision in

relation to the following:

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(a) receiving referrals under section 13L of matters arising in

proceedings under Part VII;

(b) the transfer to a court having jurisdiction under this Act of

matters to which applications that have been dismissed under

this Part relate;

persons to witnesses appearing at a parenting management

hearing, or to any other person in relation to complying with

a notice issued under section 11ME.

(3) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(4) Rules made under this section that are inconsistent with the

regulations have no effect to the extent of the inconsistency, but the

rules are taken to be consistent with the regulations to the extent

that the rules are capable of operating concurrently with the

regulations.

Division 3--Parenting Management Hearings Panel

Subdivision A--Establishment and functions

11T Establishment of Panel

The Parenting Management Hearings Panel is established by this

section.

11TA Objective and functions of Panel

(1) The objective of the Panel is to facilitate the resolution of matters

involving the parenting of a child:

(a) in a fair, just, economical, informal and prompt way; and

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(b) in a way that reflects that the best interests of the child is the

paramount consideration.

(2) The Panel has the following functions:

(a) receiving and considering applications for parenting

determinations;

(b) conducting pre-hearing conferences in relation to

applications for parenting determinations;

applications;

(d) making parenting determinations;

(e) any other function conferred on the Panel by or under this

Act or the Panel rules.

Subdivision B--Panel members

11U Membership of Panel

The Parenting Management Hearings Panel consists of:

(a) a Principal Member; and

(b) such other Panel members as are appointed under

section 11UA.

11UA Appointment of Panel members

(1) Panel members are to be appointed by the Governor-General by

written instrument.

Note:

A Panel member may be reappointed (see section 33AA of the Acts

Interpretation Act 1901).

Eligibility to be appointed as Principal Member

(2) A person is not eligible for appointment as the Principal Member

unless:

(a) the person is enrolled as a legal practitioner (however

described) of the High Court or the Supreme Court of a State

or Territory and has been so enrolled for at least 5 years; and

(b) the Minister is satisfied that the person has extensive

specialist knowledge and skills relevant to the duties of the

Principal Member, including:

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(i) knowledge of, and experience in, matters of family law;

and

(ii) knowledge of, and experience in dealing with, matters

relating to family violence.

Eligibility to be appointed as other Panel members

(3) A qualified legal practitioner is not eligible for appointment as a

Panel member (other than the Principal Member) unless:

(a) the person is enrolled as a legal practitioner (however

described) of the High Court or the Supreme Court of a State

or Territory and has been so enrolled for at least 5 years; and

(b) the Minister is satisfied that the person has specialist

knowledge and skills relevant to the duties of a Panel

member, including knowledge of, and experience in, matters

of family law.

(4) A person who is not a qualified legal practitioner is not eligible for

appointment as a Panel member (other than the Principal Member)

unless the Minister is satisfied that the person:

(a) has at least 5 years' experience working with families or

children; and

(b) has specialist knowledge and skills in one or more of the

following fields:

(i) psychology;

(ii) counselling;

(iii) social work;

(iv) family dispute resolution;

(v) community work;

(vi) family violence;

(vii) mental health;

(viii) drug or alcohol addiction;

(ix) child development;

(x) any other field relevant to the duties of a Panel member.

Basis and length of appointment

(5) The appointment of the Principal Member must be on a full-time

basis.

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(6) However, the appointment of any other Panel member may be on a

full-time or part-time basis.

(7) A Panel member is appointed for the period specified in the

instrument of appointment. The period must not exceed 5 years.

11UB Acting appointments

Acting Principal Member

(1) The Minister may, by written instrument, appoint a person to act as

the Principal Member:

(a) during a vacancy in the office of Principal Member (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the Principal

Member:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

Acting member (other than Principal Member)

(2) The Minister may, by written instrument, appoint a person to act as

a Panel member (other than the Principal Member) during any

period, or during all periods, when:

(a) a full-time Panel member is absent from duty or Australia; or

(b) a part-time Panel member is unavailable to perform the duties

of office.

Qualification for acting appointment

(3) A person must not be appointed to act in an office under

subsection (1) or (2) unless the person meets the requirements in

subsection 11UA(2), (3) or (4) for appointment to the office.

11UC Remuneration and allowances

(1) A Panel member is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

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remuneration by the Tribunal is in operation, the Panel member is

to be paid the remuneration that is prescribed by the regulations.

(2) A Panel member is to be paid the allowances that are prescribed by

the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

11UD Leave of absence

(1) A full-time Panel member has the recreation leave entitlements that

are determined by the Remuneration Tribunal.

(2) The Minister may grant a full-time Panel member leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

(3) The Minister may grant leave of absence to a part-time Panel

member on the terms and conditions that the Minister determines.

11UE Outside employment

(1) A full-time Panel member must not engage in paid work outside

the duties of his or her office without the Minister's approval.

(2) A part-time Panel member must not engage in any paid work that,

in the Principal Member's opinion, conflicts or may conflict with

the proper performance of the Panel member's duties.

11UF Other terms and conditions

A Panel member holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined,

in writing, by the Minister.

11UG Disclosure of interests

(1) If a Panel member who is, or is to be, a member of the Panel as

constituted for the purposes of a parenting management hearing

before the Panel has a conflict of interest in relation to the hearing,

the Panel member:

(a) must disclose the matters giving rise to that conflict:

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(i) to the parties to the hearing; and

(ii) to the Principal Member (or, if the member is the

Principal Member, the Minister); and

(b) must not take part in the hearing or exercise any powers in

relation to the hearing unless the parties to the hearing and

the Principal Member (or, if the member is the Principal

Member, the Minister) consent.

(2) For the purposes of this section, a member has a conflict of interest

in relation to a hearing before the Panel if the member has any

interest, pecuniary or otherwise, that could conflict with the proper

performance of the member's functions in relation to the hearing.

(3) If the Principal Member becomes aware that a member who is, or

is to be, a member of the Panel as constituted for the purposes of a

hearing before the Panel has a conflict of interest in relation to the

hearing, the Principal Member:

(a) may, if the Principal Member considers it appropriate, direct

the member not to take part in the hearing; and

(b) if the Principal Member does not give such a direction--must

ensure that the member discloses the matters giving rise to

the conflict to the parties to the parenting management

hearing.

11UH Resignation

(1) A Panel member may resign his or her appointment by giving the

Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

11UJ Termination of appointment

(1) The Governor-General may terminate the appointment of a Panel

member:

(a) for misbehaviour; or

(b) if the Panel member is unable to perform the duties of his or

her office because of physical or mental incapacity.

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(2) The Governor-General may terminate the appointment of a

full-time Panel member if:

(a) the Panel member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Panel member is absent, except on leave of absence, for

14 consecutive days or for 28 days in any 12 months; or

approval, in paid work outside the duties of his or her office

(see subsection 11UE(1)); or

(d) the Panel member fails, without reasonable excuse, to

comply with section 11UG.

(3) The Governor-General may terminate the appointment of a

part-time Panel member if:

(a) the Panel member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Panel member engages in paid work that, in the Principal

Member's opinion, conflicts or could conflict with the proper

performance of his or her duties (see subsection 11UE(2)); or

comply with section 11UG.

Subdivision C--Organisation of the Panel

11V Arrangement of business

(1) The Principal Member is responsible for ensuring the effective,

orderly and expeditious discharge of the business of the Panel.

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(2) Without limiting subsection (1), the Principal Member may take

any measures that the Principal Member believes are reasonably

necessary to maintain public confidence in the Panel.

11VA Principal Member directions

(1) The Principal Member may give written directions (Principal

Member directions) in relation to the practice and procedure of the

Panel, and the conduct of parenting management hearings.

(2) Without limiting subsection (1), the Principal Member directions

may deal with the following:

(a) the requirements for making applications to the Panel;

(b) the form and manner in which, and the time within which

documents may or must be given to the Panel;

associated with, applications for parenting determinations;

(d) procedures for amending applications for parenting

determinations;

(e) matters relating to pre-hearing conferences;

(f) matters in relation to legal representation at or in relation to

parenting management hearings;

(g) the arrangement of the business of the Panel;

(h) the Panel members who are to conduct parenting

management hearings;

(i) the places at which the Panel may sit.

(3) A failure by the Panel to comply with a direction does not

invalidate anything done by the Panel.

(4) If the Panel deals with a matter in a way that complies with the

directions given under this section, the Panel is not required to take

any other action in dealing with the matter.

(5) This section is not limited by section 11LD.

11VB Constitution and presiding member for hearings

(1) Subject to the Panel rules, the Panel must be constituted by at least

2 Panel members:

(a) at least one of whom is a qualified legal practitioner; and

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(b) at least one of whom is not a qualified legal practitioner.

(2) Subject to subsection (1), the Principal Member may give written

directions in relation to:

(a) the Panel members who are to constitute the Panel for the

purposes of a parenting management hearing; and

(b) the Panel member who is to preside.

(3) Nothing in this section prevents a single Panel member from

exercising the powers of the Panel in relation to matters of

procedure.

11VC Determination of matters under consideration

Any question or matter before the Panel is to be decided:

(a) according to the opinion of the majority of those members; or

(b) if the members are evenly divided on the question or

matter--according to the opinion of the member who is

presiding.

11VD Reconstitution of the Panel for hearings

Before hearing commences

(1) At any time before the Panel starts to consider the application to

which a parenting management hearing relates, the Principal

Member may revoke a direction under section 11VB in relation to

the hearing and give another such direction.

After hearing commences

(2) At any time after the Panel starts to consider the application to

which the parenting management hearing relates and before a

parenting determination is made, the Principal Member may

revoke a direction under section 11VB in relation to the hearing

and give another such direction, if:

(a) one of the Panel members who constitutes the Panel for the

purposes of the hearing:

(i) stops being a Panel member; or

(ii) is for any reason unavailable; or

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(iii) is directed by the Principal Member not to take part in

the hearing; or

(b) the Principal Member considers that doing so is in the

interests of achieving the expeditious and efficient conduct of

the hearing.

(3) The reconstituted Panel must continue the hearing. For this

purpose, it may have regard to any record of the hearing before the

Panel as previously constituted.

(4) The Principal Member must not give a direction referred to in

subparagraph (2)(a)(iii) unless the Principal Member:

(a) is satisfied that it is the interests of justice to do so; and

(b) has consulted the Panel member concerned.

(5) The Principal Member must not, for the purposes of subsection (2),

revoke a direction under section 11VB in relation to a hearing and

give another such direction unless the Principal Member:

(a) is satisfied that it is in the interests of justice to do so; and

(b) has consulted each Panel member who as a result ceases to be

a member of the Panel as constituted for the purposes of the

hearing.

(6) In giving directions for the purposes of this section, the Principal

Member must have regard to the Panel's objective referred to in

subsection 11TA(1).

11VE Exercise of powers in relation to conduct of hearing

The powers of the Panel in relation to the conduct of a particular

parenting management hearing may be exercised:

(a) by the Panel members constituting the Panel for the hearing;

(b) in accordance with the Principal Member directions.

Subdivision D--Management of the Panel

11W Management of administrative affairs of the Panel

(1) The Principal Member is responsible for managing the

administrative affairs of the Panel.

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(2) However, the Principal Member is not responsible under

subsection (1) for matters relating to the Panel under:

(a) the Public Governance, Performance and Accountability Act

2013; or

(b) the Public Service Act 1999.

Note 1:

For the purposes of the finance law (within the meaning of the Public

Governance, Performance and Accountability Act 2013), the staff

assisting the Panel are officials of the listed entity referred to in

section 18ZB of the Federal Court of Australia Act 1976.

Note 2:

For the purposes of the Public Service Act 1999, the staff referred to in

subsection 11WD(1) are part of the Statutory Agency declared under

section 18ZE of the Federal Court of Australia Act 1976.

11WA Federal Court Chief Executive Officer to assist Principal

Member

(1) In the management of the administrative affairs of the Panel in

accordance with section 11W, the Principal Member is to be

assisted by the Federal Court Chief Executive Officer.

(2) The Federal Court Chief Executive Officer may do all things

necessary or convenient to be done for the purpose of assisting the

Principal Member under subsection (1).

(3) In particular, the Federal Court Chief Executive Officer may act

for the Principal Member in relation to the administrative affairs of

the Panel for which the Principal Member is responsible in

accordance with section 11W.

(4) In acting for the Principal Member in relation to the administrative

affairs of the Panel, the Federal Court Chief Executive Officer

must comply with any written directions of the Principal Member.

(5) A direction under subsection (4) is not a legislative instrument.

11WB Delegation by Principal Member

(1) The Principal Member may, in writing, delegate all or any of his or

her functions or powers under this Act to one or more Panel

members.

Note:

Sections 34AA to 34A of the Acts Interpretation Act 1901 contain

provisions relating to delegations.

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(2) In performing a delegated function or exercising a delegated

power, the delegate must comply with any written directions of the

Principal Member.

11WC Delegation by Federal Court Chief Executive Officer

The Federal Court Chief Executive Officer may, by written

instrument, delegate all or any of the powers of the Federal Court

Chief Executive Officer under this Division to a member of the

staff assisting the Panel who is an SES employee, or acting SES

employee.

Note:

For other powers of delegation, see section 110 of the Public

Governance, Performance and Accountability Act 2013 and section 78

of the Public Service Act 1999.

11WD Staff of Panel

(1) The staff necessary to assist the Panel are to be persons engaged

under the Public Service Act 1999 and made available for the

purpose by the Federal Court Chief Executive Officer.

(2) The Federal Court Chief Executive Officer may, on behalf of the

Principal Member, arrange with an Agency Head within the

meaning of the Public Service Act 1999, or with an authority of the

Commonwealth, for the services of officers or employees of the

Agency or of the authority to be made available for the purposes of

the Panel.

11WE Consultants

(1) The Principal Member may arrange with the Federal Court Chief

Executive Officer for consultants to be engaged to assist the Panel

in the performance of its functions.

Note:

The Federal Court Chief Executive Officer may enter into contracts on

behalf of the Commonwealth and has responsibilities under the Public

Governance, Performance and Accountability Act 2013 in relation to

the Panel.

(2) An engagement under subsection (1) must be made:

(a) on behalf of the Commonwealth; and

(b) by written agreement.

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(3) A consultant engaged under subsection (1) is subject to directions

given by the Principal Member under subsection 11VA(1).

Subdivision E--Other matters

11X Confidential information not to be disclosed

Protected documents and information

(1) An entrusted person must not be required to produce a protected

document, or disclose protected information, to a court.

(2) Subsection (1) does not apply if the production or disclosure is

necessary for the purposes of carrying into effect the provisions of

this Act.

Panel hearings

(3) A person who is, or has been, a Panel member must not be required

to give evidence to a court in relation to anything said or done in a

hearing before the Panel.

Definitions

(4) In this section:

court includes any tribunal, authority or person having power to

require the production of documents or the answering of questions.

entrusted person means any of the following:

(a) a person who is or has been a Panel member;

(b) a person who is or has been a member of the staff assisting

the Panel (see section 11WD);

the purposes of a parenting management hearing.

produce includes permit access to.

protected: a document or information is protected if it concerns a

person and was obtained by an entrusted person in the course of the

entrusted person's duties under this Act.

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11XA Annual report

(1) As soon as practicable after 30 June in each year, the Principal

Member must prepare a report that relates to the Panel's activities

during the year.

(2) The Principal Member must give the report to the Chief Justice of

the Federal Court, for inclusion in the report prepared for the

relevant year under section 18S of the Federal Court of Australia

Act 1976.

11XB Proceedings arising out of administration of the Panel

Any judicial or other proceeding relating to a matter arising out of

the management of the administrative affairs of the Panel under

this Part, including any proceeding relating to anything done by the

Panel under this Part, may be instituted by or against the

Commonwealth, as the case requires.

Division 4--Extension, application and additional

operation of Part

11Y Extension of Part to the States

(1) This Part extends to New South Wales, Victoria, Queensland,

South Australia and Tasmania.

(2) This Part extends to Western Australia if:

(a) the Parliament of Western Australia refers to the Parliament

of the Commonwealth the following matters or matters that

include, or are included in, the following matters:

(i) the maintenance of children and the payment of

expenses in relation to children or child bearing;

(ii) parental responsibility for children; or

(b) Western Australia adopts this Part.

(3) This Part extends to a State under subsection (1) or (2) only for so

long as there is in force:

(a) an Act of the Parliament of the State by which there is

referred to the Parliament of the Commonwealth:

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(i) the matters referred to in subparagraphs (2)(a)(i) and

(ii); or

(ii) matters that include, or are included in, those matters; or

(b) a law of the State adopting this Part.

(4) This Part extends to a State at any time under subsection (1) or

paragraph (2)(a) only in so far as it makes provision with respect

to:

(a) the matters that are at that time referred to the Parliament of

the Commonwealth by the Parliament of the State; or

(b) matters incidental to the execution of any power vested by

the Constitution in the Parliament of the Commonwealth in

relation to those matters.

11YA Application of Part in, and in relation to, Territories

This Part applies in and in relation to the Territories.

11YB Application of Part to void marriages

This Part applies in relation to a purported marriage that is void as

if:

(a) the purported marriage were a marriage; and

(b) the parties to the purported marriage were husband and wife.

11YC Additional application of Part

(1) Without prejudice to its effect apart from this section, this Part also

has effect as provided by this section.

(2) This Part has the effect, subject to subsection (3), that it would

have if:

(a) each reference to a child were, by express provision, confined

to a child of a marriage; and

(b) each reference to the parents of the child were, by express

provision, confined to the parties to the marriage.

(3) This Part only has effect as mentioned in subsection (2) so far as

the Part makes provision with respect to the parental responsibility

of the parties to a marriage for a child of the marriage, including

(but not being limited to):

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(a) the duties, powers, responsibilities and authority of those

parties in relation to:

(i) the maintenance of the child and the payment of

expenses in relation to the child; or

(ii) who the child lives with, who the child spends time with

and other aspects of the care, welfare and development

of the child; and

(b) other aspects of duties, powers, responsibilities and authority

in relation to the child:

(i) arising out of the marital relationship; or

(ii) in relation to concurrent, pending or completed divorce

or validity of marriage proceedings between those

parties; or

(iii) in relation to the divorce of the parties to that marriage,

an annulment of that marriage or a legal separation of

the parties to that marriage, that is effected in

accordance with the law of an overseas jurisdiction and

that is recognised as valid in Australia under

section 104.

Division 5--Review of Part

11Z Review of operation of this Part

(1) The Minister must cause an independent review to be conducted of

the operation of this Part.

(2) The persons who conduct the review must give the Minister a

written report of the review as soon as practicable after the end of 3

years after this section commences.

23 Subsection 12B(1)

After "family services", insert ", parenting management hearings".

24 After paragraph 12B(2)(d)

Insert:

(da) parenting management hearings; and

25 After paragraph 13A(1)(c)

Insert:

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(ca) to encourage people to use, in appropriate circumstances,

parenting management hearings to resolve matters in which a

court order might otherwise be made, and to provide ways of

facilitating that use; and

26 At the end of section 13A

Add:

(3) The object mentioned in paragraph (1)(ca) also lies behind the

general requirement in section 11KB for family dispute resolution

services to be used before applications for parenting determinations

under Part IIIAA are made.

27 At the end of Part IIIB

Add:

Division 5--Court's role in relation to parenting

management hearings

13L Court may refer Part VII proceedings to Parenting

Management Hearings Panel

(1) This section applies if a child is the subject of proceedings under

Part VII in the Family Court, the Federal Circuit Court or any other

court prescribed by the regulations for the purposes of this section.

(2) The court may make an order referring one or more matters arising

in the proceedings to the Panel to be dealt with in a parenting

management hearing in relation to the child.

(3) The power to refer a matter under subsection (2) may only be

exercised:

(a) in relation to matters with which the Panel could otherwise

deal under Part IIIAA; and

(b) with the consent of the parties to the proceedings.

(4) If the court makes an order under subsection (2), it may, if

necessary, adjourn the proceedings and may make any additional

orders as it thinks appropriate to facilitate the effective conduct of

the parenting management hearing.

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(5) If a matter arising in proceedings is referred to the Panel for a

parenting management hearing in relation to a child:

(a) the parties to the proceedings are taken to be the parties to the

hearing; and

(b) the parties are taken:

(i) to have made an application for a parenting

determination in relation to the child under section 11K;

and

(ii) to have complied with the requirement in

subsection 11KB(2); and

(iii) to have consented to the making of the application in

accordance with section 11KC.

(6) An order may be made under this section even if the matters to

which the proceedings relate have been the subject of an earlier

application for a parenting determination in relation to the child.

Note:

If subsection (6) applies, the Panel may reinstate the application (see

subsection 11NG(2)).

(7) An appeal does not lie from a decision of a court exercising

jurisdiction under this section.

28 After paragraph 26B(1A)(c)

Insert:

(ca) an order made under subparagraph 70NEB(1)(ba)(i) or

paragraph 70NFB(2)(ca); or

29 Subsection 38BA(1)

After "section 11A", insert "(other than subsection (2))".

30 Section 60C (table item

11, column headed "Divisions and

overage")

After "parenting orders", insert "and parenting determinations,".

31 Section 60C (at the end of the cell at table item 13A,

column

headed "Divisions and coverage")

Add:



court may take similar action in relation to contraventions of parenting

determinations

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32 Subsection 60G(2)

After "effect of", insert "section 11PX,".

33 After paragraph 60I(9)(c)

Insert:

(ca) all the following conditions are satisfied:

(i) the application is made in relation to a particular issue;

(ii) a parenting determination has been made in relation to

that issue within the period of 12 months before the

application is made;

(iii) the application is made in relation to a contravention of

the parenting determination by a person;

(iv) the court is satisfied that there are reasonable grounds to

believe that the person has behaved in a way that shows

a serious disregard for his or her obligations under the

parenting determination; or

34 Section 61B

After "In", insert "Part IIIAA and".

35 Section 61C (heading)

Repeal the heading, substitute:

61C Each parent has parental responsibility (subject to court orders

and parenting determinations)

36 Subsection 61C(1) (notes 1 and 2)

Repeal the notes, substitute:

Note 1:

This section states the legal position that prevails in relation to

parental responsibility to the extent to which it is not displaced by a

parenting determination made by the Panel or by a parenting order

made by the court. See subsection (3) of this section and

subsections 11JD(2) and 61D(2) for the effect of a parenting

determination or a parenting order.

Note 2:

This section does not establish a presumption to be applied by the

Panel when making a parenting determination or by the court when

making a parenting order. See sections 11JE and 61DA for the

presumptions that are applied in these cases.

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37 At the end of section 61C (before the note)

Add:

(4) Subsection (1) also has effect subject to any parenting

determination made by the Panel for the time being in force.

38 Subsection 64D(2)

Omit "may only be varied by a subsequent order of the court (and not

by a parenting plan)", substitute "must not be varied by a parenting

plan".

39 At the end of Division 5 of Part VII

Add:

64E Parenting orders subject to later parenting determinations

(1) Subject to subsection (2), a parenting order in relation to a child is

subject to any later parenting determination made in relation to the

child.

(2) The court may, in exceptional circumstances, include in a

parenting order a provision that the parenting order, or a specified

provision of the parenting order, must not be varied by a parenting

determination.

40 Subsections 65D(1) and (2)

Omit "and 65DAB (parenting plans)", substitute ", 65DAB (parenting

plans) and 65DABA (parenting determinations)".

41 After section 65DAB

Insert:

65DABA Court to have regard to parenting determinations

In deciding whether to make a parenting order in relation to a child

the court:

(a) must have regard to the terms of any parenting determination

in force in relation to the child; and

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(b) must take into account any consideration that the court would

take into account if the parenting determination were a

parenting order.

Note:

If a court makes a parenting order in relation to a child, any parenting

determination in force in relation to the child is revoked, other than to

the extent (if any) provided for in the order (see section 11PW).

42 Paragraph 65R(a)

After "issued under subsection", insert "11PO(2) or".

43 Paragraphs 67K(1)(a) to (caa)

After "order", insert "or a parenting determination".

44 Subparagraphs 67Q(a)(ii) to (iv)

After "order", insert "or a parenting determination".

45 Paragraphs 67T(a) to (caa)

After "order", insert "or a parenting determination".

46 Paragraphs 68M(3)(b), (c) and (d)

After "order", insert "or a parenting determination".

47 Subparagraph 68N(a)(ii)

After "orders,", insert "parenting determinations,".

48 Paragraph 68N(aa)

After "orders,", insert "parenting determinations,".

49 Section 68R (heading)

Repeal the heading, substitute:

68R Power of court making family violence order to revive, vary,

discharge or suspend parenting determination or existing

order, injunction or arrangement under this Act

50 Before paragraph 68R(1)(a)

Insert:

(aa) a parenting determination, to the extent to which it provides

for a child to spend time with a person, or expressly or

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impliedly requires or authorises a person to spend time with

the child; or

51 After paragraph 68R(3)(a)

Insert:

(aa) if the court proposes to revive, vary, discharge or suspend a

determination mentioned in paragraph (1)(aa)--the court has

before it material that was not before the Panel when the

determination was made; and

52 Subsections 68R(4) and (6)

Omit "an order", substitute "a determination, order".

53 At the end of section 68R

Add:

Meaning of revival in context of parenting determinations, etc.

(7) In exercising its power under subsection (1) to revive a parenting

determination, the court may do so by making an order that is

equivalent in its terms to the determination intended to be revived.

(8) This section has effect subject to Chapter III of the Constitution.

54 Subsection 68T(1)

Omit "an order", substitute "a determination, order".

55 After section 70L

Insert:

70LA Relationship between parenting determinations and registered

overseas child orders

(1) This section applies if:

(a) a parenting determination is in force in relation to a child;

and

(b) an overseas child order, other than an excluded order, that

relates to the child but that has a different effect from the

parenting determination has been registered under

section 70G (whether before or after the making of the

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parenting determination) and its registration has not been

cancelled.

(2) A responsible person under the overseas child order may apply to a

court having jurisdiction under this Part for the discharge of the

parenting determination.

(3) In this section:

responsible person, in relation to an overseas child order, means a

person:

(a) with whom the child is supposed to live under the order; or

(b) whom the child is supposed to spend time with under the

order; or

(d) who is responsible for the child's day-to-day care, welfare

and development under the order; or

(e) who has a right to custody of, or access to, the child under the

order.

56 Subdivision D of Division 13 of Part VII (heading)

Repeal the heading, substitute:

Subdivision D--Transmission of Australian orders and

parenting determinations to overseas jurisdictions

57 Section 70M (heading)

Repeal the heading, substitute:

70M Registrar to send documents etc. relating to orders to overseas

jurisdiction

58 After section 70M

Insert:

70MA Principal Member to send documents etc. relating to

parenting determinations to overseas jurisdiction

(1) This section applies if:

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(a) the Panel makes a parenting determination in relation to a

child; and

(b) the determination is enforceable in:

(i) a prescribed overseas jurisdiction under provisions

corresponding to Subdivision C; or

(ii) in a convention country (within the meaning of

regulations made for the purposes of section 111B)

under provisions corresponding to Subdivision C.

(2) A person referred to in subsection (3) may, in writing, request the

Principal Member to send to an appropriate court or authority in

the prescribed overseas jurisdiction or convention country the

documents and information necessary for securing the enforcement

of the parenting determination in the overseas jurisdiction or

convention country.

(3) A request under subsection (2) may be made by:

(a) a person with whom the child is supposed to live under the

determination; or

(b) a person with whom the child is supposed to spend time

under the determination; or

(d) a person who has a right to custody of, or of access to, the

child under the determination.

(4) The Principal Member must comply with a request under

subsection (2).

59 After paragraph 70N(1)(a)

Insert:

(aa) a parenting determination; or

60 At the end of section 70NAA

Add:

(4) This Division also deals with the powers that a court with

jurisdiction under this Act has to make orders to enforce

compliance with parenting determinations.

Note:

Parenting determinations are made by the Parenting Management

Hearings Panel under Part IIIAA.

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(5) The court has the power to set aside parenting determinations

under Subdivision B. In doing so, the court will have regard to any

parenting plan that has been entered into since the parenting

determination was made (see section 70NBC).

61 After section 70NAB

Insert:

70NABA Extended meaning of primary order

In this Division (other than in section 70NBA), a reference to a

primary order includes a reference to a parenting determination,

including such a determination as varied.

62 Section 70NAC (note)

After "64D)", insert "or parenting determination (see section 64E)".

63 Section 70NAC (note)

After "inconsistent parenting plan", insert "or parenting determination".

64 After section 70NAC

Insert:

70NACA Meaning of contravened a parenting determination

A person is taken for the purposes of this Division to have

contravened a parenting determination if, and only if:

(a) where the person is bound by the determination--he or she

has:

(i) intentionally failed to comply with the determination; or

(ii) made no reasonable attempt to comply with the

determination; or

(b) otherwise--he or she has:

(i) intentionally prevented compliance with the

determination by a person who is bound by it; or

(ii) aided or abetted a contravention of the determination by

a person who is bound by it.

Note:

Parenting determinations may be subject to any subsequent parenting

plan (see section 11PE). This means that an action that would

otherwise contravene a parenting determination may not be a

Amendments Schedule 1

Main amendments Part 1

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Family Law Amendment (Parenting Management Hearings) Bill 2017

contravention, because of a subsequent inconsistent parenting plan.

Whether this is the case or not depends on the terms of the parenting

determination.

65 After section 70NAD

Insert:

70NADA Requirements taken to be included in certain parenting

determinations

For the purposes of this Division:

(a) a parenting determination that deals with who a child is to

live with is taken to include a requirement that people act in

accordance with subsection 11PN(2) in relation to the

determination; and

(b) a parenting determination that deals with who a child is to

spend time with is taken to include a requirement that people

act in accordance with subsection 11PN(3) in relation to the

determination; and

communicate with is taken to include a requirement that

people act in accordance with subsection 11PN(4) in relation

to the determination; and

(d) a parenting determination to which subsection 11PN(5)

applies is taken to include a requirement that people act in

accordance with that subsection in relation to the

determination.

66 Section 70NAE (heading)

Repeal the heading, substitute:

70NAE Meaning of reasonable excuse for contravening order or

parenting determination

67 Subsection 70NAE(1)

After "children", insert ", or a parenting determination,".

68 Subsection 70NAE(1)

Omit "subsections (2), (4), (5), (6) and (7)", substitute "subsections (2),

(2A), (4), (5), (6), (7) and (8)".

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Family Law Amendment (Parenting Management Hearings) Bill 2017

No. , 2017

69 After subsection 70NAE(2)

Insert:

(2A) A person (the respondent) is taken to have had a reasonable

excuse for contravening a parenting determination if:

(a) the respondent contravened the determination because, or

substantially because, he or she did not, at the time of the

contravention, understand the obligations imposed by the

determination on the person who was bound by it; and

(b) the court is satisfied that the respondent ought to be excused

in respect of the contravention.

70 Subsection 70NAE(3)

After "paragraph (2)(a),", insert "or a parenting determination for the

reason referred to in paragraph (2A)(a),".

71 Subsection 70NAE(3)

After "by the order", insert "or the determination (as the case may be)".

72 At the end of subsection 70NAE(3)

Add "or the determination".

73 Subsection 70NAE(4)

After "a parenting order", insert ", or a parenting determination,".

74 Subsection 70NAE(4)

After "the order" (wherever occurring), insert "or the determination".

75 Subsection 70NAE(5)

After "a parenting order", insert ", or a parenting determination,".

76 Subsection 70NAE(5)

After "the order", insert "or the determination".

77 Subsection 70NAE(6)

After "a parenting order", insert ", or a parenting determination,".

78 Subsection 70NAE(6)

After "the order", insert "or the determination".

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79 At the end of section 70NAE

Add:

(8) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting determination to which

subsection 11PN(5) applies by acting contrary to that subsection if:

(a) the respondent believed on reasonable grounds that the action

constituting the contravention was necessary to protect the

health or safety of a person (including the respondent or the

child); and

(b) the period during which, because of that action, a person in

whose favour the parenting determination was made was

hindered in or prevented from discharging responsibilities

under the determination was not for longer than was

necessary to protect the health or safety of the person referred

to in paragraph (a).

80 After subsection 70NAF(2)

Insert:

(2A) Without limiting subsection (1), that subsection applies to the

determination of whether a person who contravened a parenting

determination had a reasonable excuse for the contravention.

81 Subdivision B of Division 13A of Part VII (heading)

Repeal the heading, substitute:

Subdivision B--Court's power to vary parenting orders and set

aside parenting determinations

82 Section 70NBA (heading)

Repeal the heading, substitute:

70NBA Variation of parenting orders

83 Before subsection 70NBA(1)

Insert:

(1A) This section does not apply to a primary order that is a parenting

determination (including a parenting determination as varied).

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Part 1 Main amendments

Family Law Amendment (Parenting Management Hearings) Bill 2017

No. , 2017

84 After section 70NBA

Insert:

70NBAB Setting aside parenting determinations

(1) A court having jurisdiction under this Act may make an order

setting aside a parenting determination if:

(a) proceedings in relation to the parenting determination are

brought before a court having jurisdiction under this Act; and

(b) it is alleged in those proceedings that a person committed a

contravention of the parenting determination and either:

(i) the court does not find that the person committed a

contravention of the parenting determination; or

(ii) the court finds that the person committed a

contravention of the parenting determination.

(2) If Subdivision F applies to the contravention, when making an

order under subsection (1) setting aside a parenting determination,

the court:

(a) must regard the best interests of the child as the paramount

consideration; and

(b) must, if any of the following considerations is relevant, take

that consideration into account:

(i) the person who contravened the parenting determination

did so after having attended, after having refused or

failed to attend, or after having been found to be

unsuitable to take any further part in, a post-separation

parenting program or a part of such a program;

(ii) there was no post-separation parenting program that the

person who contravened the parenting determination

could attend;

(iii) because of the behaviour of the person who contravened

the parenting determination, it was not appropriate, in

the court's opinion, for the person to attend a

post-separation parenting program, or a part of such a

program.

(3) If a court makes an order setting aside a parenting determination

under this section, the court may make any orders as it considers

appropriate.

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Family Law Amendment (Parenting Management Hearings) Bill 2017

(4) In deciding whether to make an order under this section, the court

must take into account any considerations that the court would take

into account when determining whether to vary or set aside an

order under this Act affecting children.

85 Section 70NBB (heading)

Repeal the heading, substitute:

70NBB Parenting orders and effect of parenting plan

86 After section 70NBB

Insert:

70NBC Parenting determinations and effect of parenting plan

(1) This section applies if:

(a) a parenting determination has been made in relation to a

child; and

(b) after the parenting determination was made, the parents of

the child made a parenting plan that dealt with a matter (the

relevant matter) that was dealt with in the parenting

determination.

(2) If:

(a) section 70NBAB applies to proceedings brought in relation

to the parenting determination in relation to the relevant

matter; and

(b) the parenting plan was in force when the contravention of the

parenting determination:

(i) is alleged to have been committed; or

(ii) occurred;

the court must, in exercising its powers under section 70NBAB:

(d) consider whether to exercise its powers under

section 70NBAB to make an order adopting (with or without

modification) some or all of the provisions of the parenting

plan.

Note:

An action that would otherwise contravene a parenting determination

may not be a contravention because of a subsequent inconsistent

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parenting plan. Whether this is the case or not depends on the terms of

the parenting determination (see section 11PE).

87 Subparagraph 70NCB(2)(b)(ii)

After "70NBA,", insert "70NBAB,".

88 Paragraph 70NDB(1)(a)

After "parenting order", insert "or a parenting determination".

89 Paragraph 70NDB(1)(c)

Omit "a further parenting", substitute "an".

90 Subsection 70NDB(1) (note)

After "70NEB(1)(b)", insert ", (1)(ba)".

91 Subparagraph 70NDC(2)(b)(ii)

After "70NBA,", insert "70NBAB,".

92 After paragraph 70NEB(1)(b)

Insert:

(ba) if the current contravention is a contravention of a parenting

determination in relation to a child:

(i) make an order that compensates a person for time the

person did not spend with the child (or time the child

did not live with the person) as a result of the current

contravention; or

(ii) with the consent of the parties to the parenting

determination--adjourn the proceedings to allow one or

more of the parties to the parenting determination to

apply for a further parenting determination under

Part IIIAA that discharges, varies or suspends the

parenting determination or revives some or all of an

earlier parenting determination;

93 After paragraph 70NEB(1)(e)

Insert:

(ea) if:

(i) the current contravention is a contravention of a

parenting determination in relation to a child; and

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101

(ii) the current contravention resulted in a person not

spending time with the child (or the child not living with

a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably

incurs expenses as a result of the contravention;

make an order requiring the person who committed the

current contravention to compensate the person referred to in

subparagraph (ii) for some or all of the expenses referred to

in subparagraph (iii);

94 After subsection 70NEB(4)

Insert:

(4A) If:

(a) the current contravention is a contravention of a parenting

determination in relation to a child; and

(b) the contravention resulted in a person not spending time with

the child (or the child not living with a person for a particular

period);

the court must consider making an order under

subparagraph (1)(ba)(i) to compensate the person for the time the

person did not spend with the child (or the time the child did not

live with the person) as a result of the contravention.

(4B) The court must not make an order under subparagraph (1)(ba)(i) if

it would not be in the best interests of the child for the court to do

so.

95 After subsection 70NEB(6)

Insert:

(6A) In deciding whether to adjourn the proceedings as mentioned in

subparagraph (1)(ba)(ii), the court must have regard to the

following:

(a) whether one or more of the parties to the parenting

management hearing in which the parenting determination

was made were represented in that hearing by a legal

practitioner;

(b) the length of the period between the making of the parenting

determination and the occurrence of the current

contravention;

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96 Subparagraph 70NEB(7)(b)(ii)

Omit "70NDB, 70NDC, 70NEB, 70NFB or 70NBA", substitute

"70NBA, 70NBAB, 70NDB, 70NDC, 70NEB or 70NFB".

97 At the end of subsection 70NEF(1)

Add:

; or (c) in a parenting management hearing.

98 At the end of section 70NEF

Add:

(3) Despite paragraph (1)(c), the Panel may rely on:

(a) an admission by an adult that indicates that a child under 18

has been abused or is at risk of abuse; or

(b) a disclosure by a child under 18 that indicates that the child

has been abused or is at risk of abuse;

for the purposes of a parenting management hearing unless, in the

opinion of the Panel, sufficient information about the admission or

disclosure is available to the Panel from other sources.

99 After paragraph 70NFB(2)(c)

Insert:

(ca) if the current contravention is a contravention of a parenting

determination in relation to a child--to make an order that

compensates a person for time the person did not spend with the

child (or the time the child did not live with the person) as a result

of the current contravention, unless it would not be in the best

interests of the child concerned to make that order; or

100 Subparagraph 70NFB(2)(f)(i)

After "a parenting order", insert "or a parenting determination".

101 After subsection 70NFH(1)

Insert:

(1A) This section also applies where an act or omission by a person:

(a) constitutes a contravention of a parenting determination; and

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103

(b) is also an offence against any law.

102 At the end of subsection 94AAA(1)

Add:

; or (c) a decision of the Federal Circuit Court under section 11Q.

103 Subsection 94AAA(4)

Omit "and (10)", substitute ", (10) and (10A)".

104 After subsection 94AAA(10)

Insert:

(10A) The jurisdiction of the Family Court in relation to an appeal under

paragraph (1)(c) is to be exercised by:

(a) a single Judge; or

(b) if the Chief Justice considers that it is appropriate for the

appellate jurisdiction of the Family Court in relation to the

appeal to be exercised by a Full Court--a Full Court.

105 Subsection 94AAA(13)

Omit "or (10)", substitute ", (10) or (10A)".

106 After paragraph 109A(1)(b)

Insert:

(ba) a parenting determination; or

107 After paragraph 117A(1)(a)

Insert:

(aa) a court has found, for the purposes of Division 13A of

Part VII, that a person has, by taking a child away from

another person or by refusing or failing to deliver a child to

another person, contravened a parenting determination to the

extent to which the determination provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; or

108 Paragraph 117A(1)(b)

After "section", insert "11PP, 11PQ,".

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109 After paragraph 123(1)(sg)

Insert:

(sh) providing for and in relation to making orders under

section 13L; and

(si) providing for and in relation to matters transferred to a court

under the Panel rules made for the purposes of

paragraph 11SB(2)(b); and

110 Paragraph 125(1)(ca)

After "a court", insert "or the Panel".

111 After paragraph 125(1)(e)

Insert:

(ea) prescribing fees to be payable in respect of parenting

management hearings on or after 1 July 2021; and

(eb) exempting persons included in particular classes of persons

from liability to pay fees prescribed under paragraph (ea);

and

(ec) providing for the refund of fees prescribed under

paragraph (ea) that have been paid in particular

circumstances; and

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No. , 2017

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105

Part 2--Consequential amendments

A New Tax System (Family Assistance) Act 1999

112 Subsection 3(1) (paragraph (c) of the definition of care

arrangement)

Omit "orders".

113 Subsection 3(1) (after subparagraph (c)(i) of the

definition of care arrangement)

Insert:

(ia) a parenting determination within the meaning of

section 11JG of that Act;

114 Subsection 3(1) (after paragraph (b) of the definition of

family law order)

Insert:

(ba) a parenting determination within the meaning of

section 11JG of that Act;

Australian Citizenship Act 2007

115 Paragraph 6(1)(a)

After "orders", insert "or a parenting determination".

116 Paragraphs 6(1)(b) and (c)

After "parenting order", insert "or a parenting determination".

Australian Passports Act 2005

117 At the end of subsection 11(1)

Add:

; or (c) a parenting determination (within the meaning of the Family

Law Act 1975) permits:

(i) the child to have an Australian travel document; or

(ii) the child to travel internationally; or

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106

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(iii) the child to live or spend time with another person who

is outside Australia.

118 Subparagraph 11(5)(a)(ii)

After "an order", insert "or a parenting determination".

119 Paragraph 11(5)(b)

After "order", insert "or a parenting determination (within the meaning

of the Family Law Act 1975)".

Federal Circuit Court of Australia Act 1999

120 At the end of section 87

Add:

(3) The Rules of Court may make provision for or in relation to:

(a) making orders under section 13L of the Family Law Act

1975; and

(b) matters transferred to the Federal Circuit Court of Australia

under the Panel rules made for the purposes of

paragraph 11SB(2)(b) of that Act.

Federal Court of Australia Act 1976

121 Subparagraph 18ZB(a)(xiii)

Omit "and".

122 At the end of paragraph 18ZB(a)

Add:

(xiv) the staff assisting the Parenting Management Hearings

Panel referred to in section 11WD of the Family Law

Act 1975;

(xv) consultants engaged under section 11WE to assist the

Parenting Management Hearings Panel; and

123 After subparagraph 18ZB(e)(ii)

Insert:

(iia) the function of the Chief Executive Officer under

section 11WA of the Family Law Act 1975;

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107

124 Subparagraph 18ZE(2)(b)(ii)

Omit "section 38N", substitute "sections 11WD and 38N".

125 At the end of subsection 18ZI(1)

Add:

; or (e) the Parenting Management Panel.

Migration Act 1958

126 Subsection 192(8)

After "Act 1975)", insert "or a parenting determination (within the

meaning of that Act)".

My Health Records Act 2012

127 Section 5 (subparagraph (a)(ii) of the definition of

parental responsibility)

After "because of", insert "a parenting determination (within the

meaning of the Family Law Act 1975) or".

128 Section 5 (paragraph (b) of the definition of parental

responsibility)

After "Act 1975)", insert "or a parenting determination (within the

meaning of that Act)".

National Disability Insurance Scheme Act 2013

129 Paragraph 75(1)(a)

After "because of", insert "a parenting determination or".

130 Paragraph 75(1)(b)

After "Act 1975)", insert "or a parenting determination".

131 At the end of section 75

Add:

(7) In this section:

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108

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parenting determination has the same meaning as in the Family

Law Act 1975.

Public Interest Disclosure Act 2013

132 Section 8 (before paragraph (a) of the definition of

designated publication restriction)

Insert:

(aa) section 11RA of the Family Law Act 1975;

Social Security Act 1991

133 Subsection 23(1) (after paragraph (b) of the definition of

family law order)

Insert:

(ba) a parenting determination; or

134 Subsection 23(1)

Insert:

parenting determination has the meaning given by section 11JG of

the Family Law Act 1975.

135 Paragraph 197F(3)(a)

Omit "or parenting orders", substitute ", parenting determinations or

parenting orders".

Social Security (Administration) Act 1999

136 Section 123TC (after paragraph (b) of the definition of

family law order)

Insert:

(ba) a parenting determination within the meaning of

section 11JG of that Act; or

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109

Part 3--Application provisions

137 Application of amendments

(1)

The amendments of section 11A of the Family Law Act 1975 made by

this Schedule apply in relation to family consultants whether engaged

before or after the commencement of this Schedule.

(2)

Subsections 11NA(7) and (8) of the Family Law Act 1975, as inserted

by this Schedule, apply in relation to proceedings under that Act

whether instituted before or after the commencement of this Schedule.

(3)

Subsections 11NA(9), (10) and (11) of the Family Law Act 1975, as

inserted by this Schedule, apply in relation to parenting orders whether

made before or after the commencement of this Schedule.

(4)

Despite subitem (3), the Panel must dismiss an application for a

parenting determination in relation to a child if:

(a) a parenting order (other than an interim parenting order) is in

force in relation to the child; and

(b) the parenting order was made before the commencement of

this Schedule; and

order, or a specified provision of the parenting order, may

only be varied by a subsequent order of the court (and not by

a parenting plan).

(5)

Subsection 11NA(12), as inserted by this Schedule, applies in relation

to registered parenting plans registered before the commencement of

this Schedule.

(6)

Subsection 11NA(13) of the Family Law Act 1975, as inserted by this

Schedule, applies in relation to orders whether registered before or after

the commencement of this Schedule.

(7)

Section 13L of the Family Law Act 1975, as inserted by this Schedule,

applies in relation to proceedings under Part VII whether instituted

before or after the commencement of this Schedule.

(8)

Section 64E of the Family Law Act 1975, as inserted by this Schedule,

applies in relation to parenting orders whether made before or after the

commencement of this Schedule.

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(9)

The amendment of section 65D of the Family Law Act 1975 made by

this Schedule applies in relation to proceedings for a parenting order

whether instituted before or after the commencement of this Schedule.

(10)

Section 65DABA of the Family Law Act 1975, as inserted by this

Schedule, applies in relation to proceedings for a parenting order

whether instituted before or after the commencement of this Schedule.

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Schedule 2--Contingent amendments

Part 1--Amendments contingent on the Civil Law

and Justice Legislation Amendment Act

2017

Family Law Act 1975

1 Paragraph 10B(c)

After "apply for", insert "a parenting determination under section 11K

or".

2 Subparagraph 10F(a)(ii)

After "apply for", insert "a parenting determination under section 11K

or".

3 Subsection 11LN(3)

Repeal the subsection, substitute:

(3) Despite subsection (2), a thing said or admission made is

admissible even if the person who said the thing or made the

admission had not been informed of the effect of subsection (1), if:

(a) the thing was said or the admission was made by a person

(including a child under 18) indicating that a child under 18

has been abused or is at risk of abuse; and

(b) for a thing or admission that was obtained improperly or in

contravention, or in consequence of an impropriety or of a

contravention, of an Australian law--the evidence is

admissible under section 138 of the Evidence Act 1995;

unless, in the opinion of the court, sufficient evidence of the thing

said or the admission made is available to the court from other

sources.

Note:

A thing that is said, or an admission that is made, by a child under 18

may relate to the child him or herself, or another child under 18.

4 Application of amendment

The amendment of subsection 11LN(3) of the Family Law Act

1975 made by this Part applies in relation to a thing said or an

Schedule 2 Contingent amendments

Part 1 Amendments contingent on the Civil Law and Justice Legislation Amendment

Act 2017

112

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admission made if the thing or admission is to be admitted, after

this item commences, into proceedings (whether those proceedings

are instituted before or after that time).

5 Section 11PP (heading)

Repeal the heading, substitute:

11PP Obligations if certain parenting determinations have been

made: taking or sending a child outside Australia

6 At the end of section 11PP

Add:

(4) Subsection (2) does not prohibit taking or sending the child from

Australia to a place outside Australia if:

(a) the person (whether or not the person is or was a party to the

parenting management hearing) 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).

7 After section 11PP

Insert:

11PPA Obligations if certain parenting determinations have been

made: retaining a child outside Australia

(1) This section applies to a parenting determination to the extent to

which it provides, or would provide, that:

(a) a child is to live with a person; or

(b) a child is to spend time with a person; or

(d) a person is to have parental responsibility for a child.

(2) A person commits an offence if:

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(a) a parenting determination is in force in relation to a child;

and

(b) the child has been taken or sent from Australia to a place

outside Australia, by or on behalf of a party to the parenting

management hearing in which the parenting determination

was made:

(i) with the consent in writing (authenticated as prescribed)

of each person in whose favour the parenting

determination was made; or

(ii) in accordance with an order of a court made, under this

Act or under a law of a State or Territory, at the time, or

after, the parenting determination was made; and

in accordance with the consent or order (whether or not the

person took or sent the child as mentioned in paragraph (b));

and

(d) the person:

(i) was a party to the parenting management hearing in

which the parenting determination was made; or

(ii) is retaining the child on behalf of, or at the request of,

such a party.

Note:

The ancillary offence provisions of the Criminal Code, including

section 11.1 (attempt), apply in relation to the offence created by this

section.

Penalty: Imprisonment for 3 years.

Exception--fleeing family violence

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

(a) the person (whether or not the person is or was a party to the

parenting management hearing) retains the child as

mentioned in paragraph (2)(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).

Schedule 2 Contingent amendments

Part 1 Amendments contingent on the Civil Law and Justice Legislation Amendment

Act 2017

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8 Section 11PQ (heading)

Repeal the heading, substitute:

11PQ Obligations if application for parenting determination has

been made etc.: taking or sending a child outside

Australia

9 At the end of section 11PQ

Add:

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

(a) the person (whether or not the person is the party to the

hearing) 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).

10 After section 11PQ

Insert:

11PQA Obligations if application for the making of certain

parenting determinations are pending: retaining a child

outside Australia

(1) This section applies if:

(a) either:

(i) an application for a parenting determination in relation

to a child has been made but not yet finally determined;

(ii) an appeal on a question of law in relation to a parenting

determination under section 11Q has been instituted but

not yet finally determined; and

(b) the parenting determination provides, or would provide, that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; or

Contingent amendments Schedule 2

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(iv) a person is to have parental responsibility for a child.

(2) A person commits an offence if:

(a) a parenting management hearing for the making, in relation

to a child, of a parenting determination is pending; and

(b) the child has been taken or sent from Australia to a place

outside Australia by or on behalf of a party to the parenting

management hearing:

(i) with the consent in writing (authenticated as prescribed)

of each other party to the hearing; or

(ii) in accordance with an order of a court made, under this

Act or under a law of a State or Territory, after the

application for a parenting determination was made; and

in accordance with the consent or order (whether or not the

person took or sent the child as mentioned in paragraph (b));

and

(d) the person is a party to the hearing, or is retaining the child

on behalf of, or at the request of, such a party.

Note:

The ancillary offence provisions of the Criminal Code, including

section 11.1 (attempt), apply in relation to the offence created by this

subsection.

Penalty: Imprisonment for 3 years.

Exception--fleeing family violence

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

(a) the person (whether or not the person is the party to the

hearing) retains the child as mentioned in paragraph (2)(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).

11 Paragraph 11PU(a)

Omit "or sent", substitute ", sent or retained".

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Part 1 Amendments contingent on the Civil Law and Justice Legislation Amendment

Act 2017

116

Family Law Amendment (Parenting Management Hearings) Bill 2017

No. , 2017

12 Paragraph 11PU(b)

Omit "or sending", substitute ", sending or retaining".

13 After section 11PU

Insert:

11PUA Extended geographical jurisdiction--category D

Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against any of

sections 11PP to 11PS (taking, sending or retaining a child outside

Australia).

14 Paragraph 117A(1)(b)

Omit "11PP, 11PQ", substitute "11PP, 11PPA, 11PQ, 11PQA,".

15 Application of amendments

The amendments made by items 5 to 14 apply to:

(a) a child taken or sent from Australia on or after the

commencement of this Part; or

(b) a child taken or sent from Australia before the

commencement of this Part, if the period specified in the

consent or order in accordance with which the child was

taken or sent:

(i) ended after that commencement; or

(ii) was extended so that it ended after that commencement.

Marriage Act 1961

16 Clause 1 of Schedule 1

Before "The", insert "(1)".

17 Clause 1 of Schedule 1 (table item

1, column headed "If

... ", paragraph (b))

After "court order", insert "or parenting determination".

Contingent amendments Schedule 2

Amendments contingent on the Civil Law and Justice Legislation Amendment Act 2017

Part 1

No. , 2017

Family Law Amendment (Parenting Management Hearings) Bill 2017

117

18 Clause 1 of Schedule 1 (table item

2, column headed "If

... ")

After "court order", insert "or parenting determination".

19 Clause 1 of Schedule 1 (table item

2, column headed "then

this person's consent is required ... ")

After "order", insert "or determination".

20 At the end of clause 1 of Schedule 1

Add:

(2) In this clause:

parenting determination has the same meaning as in the Family

Law Act 1975.

Schedule 2 Contingent amendments

Part 2 Amendments contingent on the Family Assistance and Child Support

Legislation Amendment (Protecting Children) Act 2017

118

Family Law Amendment (Parenting Management Hearings) Bill 2017

No. , 2017

Part 2--Amendments contingent on the Family

Assistance and Child Support Legislation

Amendment (Protecting Children) Act 2017

A New Tax System (Family Assistance) Act 1999

21 Subsection 3(1) (after paragraph (a) of the definition of

maximum interim period)

Insert:

(aa) for a determination relating to a parenting determination--the

later of:

(i) the end of the period of 52 weeks starting on the day the

determination first takes effect; or

(ii) the end of the period of 26 weeks starting on the change

of care day; or

22 Subsection 3(1)

Insert:

parenting determination has the meaning given by section 11JG of

the Family Law Act 1975.

23 Subsection 35FA(1) (table item

1, column headed "If the

following conditions are met

... ", paragraph (a))

After "court order", insert "or a parenting determination".

24 Subsection 35FA(1) (table item

1, column headed "If the

following conditions are met

... ", paragraph (c))

After "court order", insert "or determination".

25 Subsection 35FA(1) (table item

2, column headed "If the

following conditions are met

... ", paragraph (a))

After "court order", insert "or a parenting determination".

Contingent amendments Schedule 2

Amendments contingent on the Family Assistance and Child Support Legislation

Amendment (Protecting Children) Act 2017 Part 2

No. , 2017

Family Law Amendment (Parenting Management Hearings) Bill 2017

119

Child Support (Assessment) Act 1989

26 Subsection 5(1) (after paragraph (a) of the definition of

maximum interim period)

Insert:

(aa) for a determination relating to a parenting determination--the

later of:

(i) the end of the period of 52 weeks starting on the day the

determination first takes effect; or

(ii) the end of the period of 26 weeks starting on the change

of care day; or

27 Subsection 5(1)

Insert:

parenting determination has the meaning given by section 11JG of

the Family Law Act 1975.

28 Subsection 53A(1) (table item

1, column headed "If the

following conditions are met

... ", paragraph (a))

After "court order", insert "or a parenting determination".

29 Subsection 53A(1) (table item

1, column headed "If the

following conditions are met

... ", paragraph (c))

After "court order", insert "or determination".

30 Subsection 53A(1) (table item

2, column headed "If the

following conditions are met

... ", paragraph (a))

After "court order", insert "or a parenting determination".

Schedule 2 Contingent amendments

Part 3 Amendments contingent on the Family Law Amendment (Family Violence and

Other Measures) Act 2017

120

Family Law Amendment (Parenting Management Hearings) Bill 2017

No. , 2017

Part 3--Amendments contingent on the Family Law

Amendment (Family Violence and Other

Measures) Act 2017

Family Law Act 1975

31 Paragraph 68T(1)(c)

After "time the", insert "determination,".

Commonwealth of Australia Bills

FAMILY LAW AMENDMENT (PARENTING MANAGEMENT HEARINGS) BILL 2017