FAMILY LAW AMENDMENT (VALIDATION OF CERTAIN PARENTING ORDERS AND OTHER MEASURES) BILL 2010

i Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill

2010 No. , 2010

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Validation of certain parenting orders

Schedule 2--Amendments

Family Law Act 1975

Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010

No. , 2010 1

A Bill for an Act to validate certain parenting

orders and amend the Family Law Act 1975, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Family Law Amendment (Validation

of Certain Parenting Orders and Other Measures) Act 2010.

2 Commencement

This Act commences on the day after this Act receives the Royal

Assent.

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Schedule 1--Validation of certain parenting

orders

1 Interpretation

(1)

In this Schedule:

affected order has the meaning given by subitems 2(1) and (3).

consider has the same meaning as in section 65DAA of the Family Law

Act 1975.

court, except in subitems 4(2) and (3), means a court exercising

jurisdiction in relation to a matter arising under the Family Law Act

1975 or this Act.

enforceable includes able to be dealt with by proceedings under

Division 13A of Part VII of the Family Law Act 1975 relating to a

contravention of an order.

enforcement law has the meaning given by subitem 4(3).

liability includes a duty, responsibility or obligation.

Registrar means:

(a) a Registrar within the meaning of the Family Law Act 1975,

to the extent that his or her powers were or are exercised

under a delegation of the Family Court's powers under Rules

of Court made under section 37A of the Family Law Act

1975; or

(b) a Judicial Registrar appointed under section 26A of the

Family Law Act 1975, to the extent that his or her powers

were or are exercised under a delegation of the Family

Court's powers under Rules of Court made under section 26B

of that Act; or

Act 1999, to the extent that his or her powers were or are

exercised:

(i) under section 102 of that Act; or

(ii) under a delegation of the Federal Magistrates Court's

powers under Rules of Court made under section 103 of

that Act.

required matters, for an order, has the meaning given by subitem 2(2).

right includes an interest, status, power or authority.

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(2)

Any other expression has the same meaning in this Schedule as in the

Family Law Act 1975.

2 Meaning of affected order etc.

(1) An

affected order is, subject to subitem (3), an order (including an

interim order) in relation to a child:

(a) that was made or purportedly made by a court or Registrar

under section 65D of the Family Law Act 1975:

(i) on or after the commencement of Schedule 1 to the

Family Law Amendment (Shared Parental

Responsibility) Act 2006; and

(ii) before the commencement of this item; and

Note:

Schedule 1 to the Family Law Amendment (Shared Parental

Responsibility) Act 2006 commenced on 1 July 2006.

(b)

that:

(i) provides for the child's parents to have equal shared

parental responsibility for the child; or

(ii) was made on the basis that another order provides for

the child's parents to have equal shared parental

responsibility for the child; and

required matters for the order.

(2) The

required matters for the order are:

(a) if the order was made or purportedly made without the

consent of all the parties to the proceedings:

(i) in any case--whether the child spending equal time

with each of the parents was reasonably practicable; and

(ii) if the order does not provide for the child to spend equal

time with each of the parents--whether the child

spending substantial and significant time with each of

the parents was reasonably practicable; or

(b) if the order was made or purportedly made with the consent

of all the parties to the proceedings:

(i) in any case--the matters referred to in paragraphs

65DAA(1)(a) to (c) of the Family Law Act 1975; and

(ii) if the order does not provide for the child to spend equal

time with each of the parents--the matters referred to in

paragraphs 65DAA(2)(c) to (e) of that Act.

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(3)

If a court or Registrar has:

(a) varied, revoked, set aside, revived or suspended an order to

which paragraphs (1)(a), (b) and (c) apply; or

(b) purported to vary, revoke, set aside, revive or suspend such

an order;

the affected order is that order in the form in which, and to the extent to

which, it purports or purported to have effect from time to time.

3 Rights and liabilities under affected orders

(1)

Subject to item 5, the rights and liabilities of all persons are, by force of

this item, declared to be, and always to have been, the same as if each

affected order were an order in relation to which the court or Registrar

making the order had considered the required matters for the order.

(2)

A right or liability conferred, imposed or affected by subitem (1):

(a) is exercisable or enforceable; and

(b) is to be regarded as always having been exercisable or

enforceable;

as if it were a right or liability conferred, imposed or affected by an

order made by the court or Registrar in or in relation to the proceedings

for the order.

(3)

The rights and liabilities conferred, imposed or affected by subitem (1)

include (but are not limited to) the right of a person who was a party to

the proceeding or purported proceeding in which the affected order was

made to:

(a) appeal against the order; or

(b) apply for review in relation to the order;

as if the order were an order made under the Family Law Act 1975.

(4)

Without limiting the grounds on which the person may appeal against

the order or apply for review in relation to the order, the person may do

so on the ground that the court or Registrar that made the order failed to

consider the required matters for the order.

(5)

To avoid doubt, this item does not affect the application of

section 60CA of the Family Law Act 1975 in relation to an affected

order.

Note:

Section 60CA of the Family Law Act 1975 requires the best interests of the child to be

the paramount consideration in a decision whether to make a particular parenting order.

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6 Family Law Amendment (Validation of Certain Parenting Orders and Other Measures)

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4 Effect of things done etc. under or in relation to rights and

liabilities

(1)

Any act or thing done or omitted to be done before, at or after the

commencement of this Schedule in relation to a right or liability

conferred, imposed or affected by item 3:

(a) has the same effect, and gives rise to the same consequences,

for the purposes of any written or other law; and

(b) is taken always to have had the same effect, and to have

given rise to the same consequences, for the purposes of any

written or other law;

as if it were done or omitted to be done to give effect to, or under the

authority of or in reliance on, an order made under section 65D of the

Family Law Act 1975.

(2)

However, if, before the commencement of this Schedule, a court

purported to convict a person of an offence against an enforcement law

on the basis that an affected order was a valid order, nothing in this item

is to be taken to validate or confirm that conviction.

(3) An

enforcement law is a provision of a law of the Commonwealth,

other than a law relating to contempt of court, that sets out a

consequence for a person if the person:

(a)

contravenes;

(b) acts in a specified way while there is in force;

an order, or a particular kind of order, made by a court exercising

federal jurisdiction (whether or not the provision also applies to other

orders of courts).

5 Circumstances in which item 3 ceases to have effect

If:

(a) before the commencement of this Schedule, a court or

Registrar made an order (the new order) on the basis that an

affected order was or might be invalid; and

(b) the new order:

(i) conferred or imposed rights or liabilities similar to or

different from those purportedly conferred or imposed

by the affected order; or

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(ii) affected rights or liabilities in the same way as they

were purportedly affected by the affected order or in a

different way;

item 3 is to be regarded as having ceased to have effect in respect of the

affected order when the new order took effect.

6 Powers in relation to declared rights and liabilities

(1)

A court or Registrar may vary, revoke, set aside, revive or suspend a

right or liability conferred, imposed or affected by item 3 (an item 3

right or liability) as if it were a right or liability conferred, imposed or

affected by an order that was made under section 65D of the Family

Law Act 1975.

(2)

In addition to the powers of a court or Registrar under subitem (1), the

court or Registrar also has power to make an order achieving any other

result that could have been achieved if:

(a) the affected order had been an order that was made under

section 65D of the Family Law Act 1975; and

(b) the court or Registrar had been considering whether:

(i) to vary, revoke, set aside, revive or suspend that order;

(ii) to extend the time for the doing of anything in relation

to the proceedings for that order; or

(iii) to grant a stay of proceedings for that order.

(3)

This item has effect, in relation to varying, revoking, setting aside,

reviving or suspending an item 3 right or liability, subject to the same

conditions and limitations as apply under the Family Law Act 1975 in

relation to varying, revoking, setting aside, reviving or suspending an

order that was made under section 65D of the Family Law Act 1975.

(4)

Despite subitem (3), if the affected order was made without the consent

of the parties, the court or Registrar does not need to be satisfied, before

varying, revoking, setting aside, reviving or suspending an item 3 right

or liability, that there are circumstances justifying reconsideration of

how the best interests of the child should be best served.

(5)

Any of the following:

(a) an order under this item by the Supreme Court of the

Northern Territory, or the Family Court of Western Australia;

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(b) a decree or decision of a Judge of the Supreme Court of the

Northern Territory, or the Family Court of Western Australia,

rejecting an application that he or she disqualify himself or

herself from further hearing a matter arising under

subitem (1);

is taken, for the purposes of section 94 of the Family Law Act 1975, to

be a decree of that court, or a decree or decision of that Judge,

exercising original or appellate jurisdiction under that Act.

(6)

Any of the following:

(a) an order under this item by the Federal Magistrates Court;

(b) a decree or decision of a Federal Magistrate rejecting an

application that he or she disqualify himself or herself from

further hearing a matter arising under subitem (1);

Australia constituted by a Family Law Magistrate of Western

Australia;

(d) a decree or decision of a Family Law Magistrate of Western

Australia rejecting an application that he or she disqualify

himself or herself from further hearing a matter arising under

subitem (1);

is taken, for the purposes of section 94AAA of the Family Law Act

1975, to be a decree of that court, or a decree or decision of that

magistrate, exercising original jurisdiction under that Act.

(7)

An order under this item by a court of summary jurisdiction of a State

or Territory (other than the Magistrates Court of Western Australia

constituted by a Family Law Magistrate of Western Australia) is taken,

for the purposes of section 96 of the Family Law Act 1975, to be a

decree of that court exercising jurisdiction under that Act.

7 Proceedings for contempt etc.

If (whether before, at or after the commencement of this Schedule) a

person has:

(a) interfered with a right conferred or affected by item 3 in

relation to an affected order of the Federal Magistrates Court,

the Family Court of Western Australia, a court of summary

jurisdiction or a Registrar; or

(b) failed to satisfy or comply with a liability imposed or

affected by item 3 in relation to an affected order of the

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Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010

No. , 2010 9

Federal Magistrates Court, the Family Court of Western

Australia, a court of summary jurisdiction or a Registrar;

the interference or failure is, and is taken always to have been, a matter

that can be dealt with in the same manner as if the interference or failure

had been in relation to a right conferred or affected, or a liability

imposed or affected, by an order validly made under section 65D of the

Family Law Act 1975.

8 Evidence

The court record, or a copy of the court record, of an affected order may

be adduced in evidence to show the existence, nature and extent of each

right or liability conferred, imposed or affected by item 3.

9 Schedule does not apply to certain orders

Nothing in this Schedule applies to an order declared or held to be

invalid, or to have been made without power, by a court before the

commencement of this Schedule.

10 Jurisdiction of courts

(1)

Subject to subitem (3), jurisdiction is conferred on the Family Court, the

Federal Magistrates Court and the Supreme Court of the Northern

Territory, and the Family Court of Western Australia is invested with

federal jurisdiction, with respect to matters arising under this Schedule.

(2)

Subject to subitem (3), each court of summary jurisdiction of each State

is invested with federal jurisdiction, and jurisdiction is conferred on

each court of summary jurisdiction of each Territory, with respect to

matters arising under this Schedule.

(3)

A court only has jurisdiction with respect to a matter arising under this

Schedule if it has jurisdiction with respect to an equivalent matter

arising under the Family Law Act 1975. The court's jurisdiction under

this Schedule is subject to the same conditions and limitations as would

apply to it in dealing with the equivalent matter.

Schedule 2 Amendments

10 Family Law Amendment (Validation of Certain Parenting Orders and Other Measures)

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Schedule 2--Amendments

Family Law Act 1975

1 Subsections 65DAA(1) and (2)

Omit "If", substitute "Subject to subsection (6), if".

2 At the end of section 65DAA (after the notes)

Add:

Consent orders

(6)

If:

(a) the court is considering whether to make a parenting order

with the consent of all the parties to the proceedings; and

(b) the order provides (or is to provide) that a child's parents are

to have equal shared parental responsibility for the child;

the court may, but is not required to, consider the matters referred

to in paragraphs (1)(a) to (c) or (if applicable) the matters referred

to in paragraphs (2)(c) to (e).

(7) To avoid doubt, subsection (6) does not affect the application of

section 60CA in relation to a parenting order.

Note:

Section 60CA requires the best interests of the child to be the

paramount consideration in a decision whether to make a particular

parenting order.

3 Application of amendments

The amendments made by this Schedule apply to any order made after

the commencement of this item, whether proceedings were initiated, or

an application for the order was made, before, at or after that

commencement.

Commonwealth of Australia Bills

FAMILY LAW AMENDMENT (VALIDATION OF CERTAIN PARENTING ORDERS AND OTHER MEASURES) BILL 2010