Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Family Law Legislation Amendment
(Family Violence and Other Measures) Bill 2011
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Robert McClelland MP)
Family Law Legislation Amendment (Family Violence and Other Measures) Bill
2011
Outline
The Family Law Legislation Amendment (Family Violence and Other Measures)
Bill 2011 (the 'Family Violence Bill') will amend the Family Law Act 1975
(Cth) to provide better protection for children and families at risk of
violence and abuse. The Bill also makes several technical amendments which
correct drafting and minor policy oversights and provide other efficiencies
for the courts and litigants.
The Family Violence Bill responds to reports received by the Government
into the 2006 family law reforms and how the family law system deals with
family violence. The reports indicate that the Act fails to adequately
protect children and other family members from family violence and child
abuse. These reports are the Evaluation of the 2006 family law reforms by
the Australian Institute of Family Studies (AIFS); Family Courts Violence
Review by the Honourable Professor Richard Chisholm AM; and Improving
responses to family violence in the family law system: An advice on the
intersection of family violence and family law issues by the Family Law
Council.
Other research reports on family violence, shared care and infant
development further provide a strong evidence base for reform. These
reports are: Family Violence and Family Law in Australia: the Experiences
and Views of Children and Adults from Families who Separated Post-1995 and
Post-2006 collaboratively produced by Monash University, the University of
South Australia and James Cook University; Shared Care Parenting
Arrangements since the 2006 Family Law Reforms by the Social Policy
Research Centre of the University of New South Wales; and Post-separation
parenting arrangements and developmental outcomes for infants and children
by Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wills and
Caroline Long.
The Family Violence Bill also takes account of recommendations in relation
to the definition of 'family violence' from a joint report by the
Australian and New South Wales Law Reform Commissions entitled Family
Violence--A National Legal Response.
The safety of children is of critical importance and the Government takes
the issue of addressing and responding to family violence and child abuse
very seriously. The family law system must prioritise the safety of
children to ensure the best interests of children are met. The Family
Violence Bill sends a clear message that family violence and child abuse
are unacceptable.
These amendments address issues of significant community concern by
strengthening the role of family courts, advisers and parents in preventing
harm to children while continuing to support the concepts of shared
parental responsibility and shared care, where this is safe for children.
The key amendments made by the Family Violence Bill will:
. prioritise the safety of children in parenting matters;
. change the definitions of 'abuse' and 'family violence' to better
capture harmful behaviour;
. strengthen advisers obligations by requiring family consultants,
family counsellors, family dispute resolution practitioners and legal
practitioners to prioritise the safety of children;
. ensure the courts have better access to evidence of abuse and family
violence by improving reporting requirements; and
. make it easier for state and territory child protection authorities to
participate in family law proceedings where appropriate.
The Family Violence Bill retains the substance of the shared parenting laws
introduced in the Family Law Amendment (Shared Parental Responsibility) Act
2006 (Cth) and continues to promote a child's right to a meaningful
relationship with both parents where this is safe for the child.
Schedule 2 of the Family Violence Bill contains several other amendments to
the Act. These will clarify the Family Court's power to dismiss appeals
and to delegate procedural applications in appeals to Registrars; align the
Family Court's and the Federal Magistrate Court's provisions on
administering oaths and affirmations and swearing affidavits; clarify that
parentage testing orders and parentage declarations are not parenting
orders; provide the Family Court Judges with a rule-making power relating
to bankruptcy proceedings transferred to the Family Court under section 35A
of the Bankruptcy Act 1966 (Cth), and correct drafting and minor policy
oversights and provide other efficiencies for the courts and litigants.
Schedule 2 to the Family Violence Bill also makes consequential amendments
to the Bankruptcy Act to reflect the proposed power to be given to Family
Court Judges to make rules relating to bankruptcy proceedings transferred
to the Family Court under section 35A of that Act.
Financial Impact
The amendments in this Bill have negligible financial implications.
NOTES ON CLAUSES
Clause 1: Short title
1. This clause provides that the Bill, once enacted, will be cited as the
Family Law Legislation Amendment (Family Violence and Other Measures)
Act 2011.
Clause 2: Commencement
2. This clause provides for the commencement of the Act. Sections 1 to 3
of the Act will commence on the day the Act receives the Royal Assent.
Schedule 1 of the Act will commence on a day to be fixed by
Proclamation. However, if any of the provisions in Schedule 1 do not
commence within a period of 6 months beginning on the day this Act
receives the Royal Assent, they commence on the day after the end of
the period. Items 1, 2 and 30 of Schedule 2 will commence on the 28th
day after the Act receives the Royal Assent. Items 3 to 29 of
Schedule 2 will commence on the day the Act receives the Royal Assent.
Part 2 of Schedule 2 will commence on the day the Act receives the
Royal Assent.
Clause 3: Schedules
3. This clause provides that each Act specified in a Schedule to the Bill
will be amended or repealed as set out in the Schedules.
Schedule 1 - Amendments relating to family violence
Part 1 - Amendments
Family Law Act 1975
Item 1: Subsection 4(1) (definition of abuse)
4. Item 1 repeals the definition of 'abuse' in relation to a child in
subsection 4(1) of the Act and replaces it with a new definition of
'abuse'. The definition will include assault; sexual abuse and
exploitation; causing a child to suffer serious psychological harm,
including where the child is exposed to family violence; and serious
neglect of the child.
5. The term 'abuse' is picked up in various provisions in the Act. In
some instances, it is used in a stand-alone manner, for example, in
defining what reports will give rise to mandatory reports to child
welfare authorities (section 67ZA) or in determining the exceptions to
the admissibility of certain communications made in family counselling
and family dispute resolution (sections 10E and 10J). In other
instances, for example, in the primary considerations set out for
determining the best interests of a child, the term is used in
conjunction with references to other and broader types of harm.
6. As with the existing definition of 'abuse', proposed paragraph (a)
provides that an assault, including a sexual assault, amounts to
abuse. However, the new definition will remove the requirement for
the assault to be an offence under an enforceable law in a state or
territory. This means that those working with the Act, including
courts, legal practitioners and family members will not be required to
have regard to the terms of state and territory laws when considering
whether abuse has occurred. The new definition will remove
uncertainty about knowing the elements of an offence and whether an
offence has been committed.
7. Paragraph (b) of the definition, which deals with sexual exploitation,
is based on the existing definition but contains minor drafting
changes that reflect current drafting practice.
8. New paragraph (c) of the definition provides that abuse involves
causing the child to suffer serious psychological harm, including by
the child being exposed to family violence. This reflects current
social science and approaches to child protection, which indicate that
exposure to violence threatens a child's physical, emotional,
psychological, social, education and behavioural wellbeing.
9. New paragraph (d) of the definition extends the definition to serious
neglect of the child. The meaning of neglect is not defined and
therefore takes its ordinary meaning. Neglect encompasses a range of
acts of omission including failure to provide adequate food, shelter,
clothing, supervision, hygiene or medical attention.
Item 2: Subsection 4(1)
10. Item 2 amends subsection 4(1) to include a reference to the definition
of 'exposed' in new section 4AB (definition of family violence etc)
proposed by item 8. This amendment follows existing drafting of the
Act which places more extensive definitions at the end of the
interpretation section.
Item 3: Subsection 4(1) (definition of family violence)
11. Item 3 amends subsection 4(1) to include a signpost to the new
definition of 'family violence' in new section 4AB (definition of
family violence etc) proposed by item 8. This amendment follows
existing drafting of the Act which places more extensive definitions
at the end of the interpretation section.
Item 4: Subsection 4(1) (definition of member of the family)
12. Item 4 repeals the existing definition of 'member of the family' in
subsection 4(1) and inserts a new definition which refers the reader
to revised subsection 4(1AB). This amendment moves the description of
the purposes for which the definition applies to the substantive
definition. This follows existing drafting of the Act which places
more extensive definitions at the end of the interpretation section.
Item 5: Subsection 4(1) (paragraph (a) of the definition of Registry
Manager)
13. Item 5 amends the general definition of 'Registry Manager' to carve
out proposed section 67ZBA from its meaning. In addition to
amendments made by item 34, this change helps to ensure that the
specialised definition of 'Registry Manager' in subsection 67Z(4) of
the Act continues to apply to section 67Z (dealing with allegations of
child abuse) and is extended to proposed section 67ZBA (dealing with
allegations of family violence). The same meaning is applied to both
provisions to ensure consistent reporting obligations in relation to
child abuse and family violence and to avoid duplication.
Item 6: Paragraph 4(1AB)(a)
14. Item 6 amends paragraph 4(1AB)(a) to ensure that the definition of
'member of the family' is incorporated into the new definition of
'family violence' in proposed section 4AB. This amendment is
consequential to items 3 and 8, which moves the definition of 'family
violence' from subsection 4(1) to proposed section 4AB.
Item 7: Paragraph 4(1AB)(c)
15. Item 7 amends paragraph 4(1AB)(c) to ensure that the definition of
'member of the family' is applied to obligations in new section 60CH
(to inform the court of care arrangements under child welfare laws)
and new section 60CI (to inform the court of notifications to, and
investigations by, prescribed State or Territory agencies). This
amendment is consequential to item 21, which creates proposed
sections 60CH and 60CI.
Item 8: After section 4AA
16. Item 8 inserts new section 4AB which will define 'family violence' and
when a child is 'exposed' to family violence.
17. New subsection 4AB(1) defines 'family violence' as violent,
threatening or any other type of behaviour that coerces or controls a
family member or which causes the family member to be fearful.
Behaviour that fits within the general characterisation set out in the
definition will be captured. The definition is intended to cover a
wide range of behaviour including assault, sexual assault or other
sexually abusive behaviour, stalking, emotional and psychological
abuse, and economic abuse. The definition encompasses patterns of
family violence and single violent events.
18. New subsection 4AB(2) provides a non-exhaustive list of examples that
fit within the definition of 'family violence'. The examples
recognise the wider range of behaviour experienced by victims of
family violence. The inclusion of examples will not exclude any
behaviour that is within the general characterisation set out in
subsection 4AB(1). For example, threats of suicide and self-harm are
not mentioned in the definition or examples of 'family violence', but
will be captured by the definition where the threat coerces, controls
or causes a family member to be fearful.
19. New subsection 4AB(3) defines the term 'exposed'. This new term
provides that a child is 'exposed' to family violence if the child
sees or hears or otherwise experiences the effects of family violence.
Proposed subsection 4AB(4) provides a non-exhaustive list of example
situations where a child may be exposed to family violence. The
examples clarify that there does not have to be intent for a child to
hear, witness or otherwise be exposed to family violence.
Item 9: Subsection 12E(3) (note)
20. Item 9 repeals the note under existing subsection 12E(3), which deals
with the obligations on legal practitioners to give their clients
documents containing information prescribed under section 12D of the
Act. The substitute note refers the reader to new general obligations
for advisers introduced by new section 60D proposed by item 22 and to
information giving obligations under section 63DA of the Act.
Item 10: Subsection 12G(1) (note)
21. Item 10 repeals the note under subsection 12G(1), which deals with
obligations on family counsellors, family dispute resolution
practitioners and arbitrators to give a married person who is
considering instituting certain proceedings (and, in appropriate
cases, that person's spouse) documents containing information
prescribed under section 12C of the Act. The substitute note includes
a reference to new general obligations for advisers (other than
arbitrators) to be introduced by new section 60D proposed by item 22
as well as referring the reader to additional information-giving
obligations for these professionals under section 63DA of the Act.
Item 11: Paragraph 43(1)(ca)
22. Item 11 amends paragraph 43(1)(ca), which provides the principles to
be applied by courts, by replacing the word 'safety' with
'protection'. This promotes consistency of terminology in the Act.
Item 12: After paragraph 60A(a)
23. Item 12 amends section 60A, which outlines what is done in Division 1
of Part VII of the Act. The revised outline will include references
to Subdivisions BA and BB of Division 1 (covering introductory issues
relating to children's matters). The descriptions are drawn from the
titles of the Subdivisions in Division 1. Under this amendment,
section 60A refers to retitled Subdivision BA and new Subdivision BB
introduced into the Act by items 16 and 22 respectively.
Item 13: At the end of section 60B
24. Item 13 inserts a new subsection into section 60B of the Act to
provide that a further object of Part VII of the Act is to give effect
to the United Nations Convention on the Rights of the Child (the
Convention). The purpose of this object is to confirm, in cases of
ambiguity, the obligation on decision makers to interpret Part VII of
the Act, to the extent its language permits, consistently with
Australia's obligations under the Convention. The Convention may be
considered as an interpretive aid to Part VII of the Act. To the
extent that the Act departs from the Convention, the Act would
prevail. This provision is not equivalent to incorporating the
Convention into domestic law.
25. Australia ratified the Convention in 1990 and, in doing so, committed
to protecting and ensuring children's rights. The Convention contains
the full range of human rights - civil, cultural, economic, political
and social rights. These rights can be broadly grouped as protection
rights, participation rights and survival and development rights. One
of the main principles on which the Convention is based is the
obligation to have regard to the best interests of the child as a
primary consideration in decision-making. Part VII of the Act is
based on this same principle; although the best interests of the child
are elevated to 'paramount' status in several provisions. The
reference to the Convention in section 60B does not adversely affect
these provisions in Part VII or dilute the meaning of 'paramount
consideration'. Nothing in the Convention prevents Australia enacting
stronger protections for the rights of the child than the Convention
itself prescribes.
26. The note provides the reader with a reference for accessing the
Convention in accordance with current drafting practice.
Item 14: Section 60C (cell at table item 1, column headed "Divisions and
coverage")
27. Item 14 updates the table in section 60C of the Act which provides an
outline of issues dealt with by Part VII of the Act (dealing with
children's matters). New issues are included for Division 1 as a
result of items 16 and 22.
Item 15: Section 60C (cell at table item 8, column headed "Divisions and
coverage")
28. Item 15 updates the table in section 60C of the Act which provides an
outline of issues dealt with by Part VII of the Act (dealing with
children's matters). New issues are included for Division 8 as a
result of item 29.
Item 16: Subdivision BA of Division 1 of Part VII (heading)
29. Item 16 changes the heading of Subdivision BA of Division 1 of
Part VII of the Act to indicate that the issues dealt with in that
subdivision relate to court proceedings. This is necessary to
distinguish between existing Subdivision BA, which deals with matters
a court must consider when dealing with a children's matter, and new
Subdivision BB which deals with an adviser's obligations in relation
to children's matters. Subdivision BB is introduced by item 22.
Item 17: After subsection 60CC(2)
30. Item 17 inserts new subsection 60CC(2A) which requires the court, when
determining what is in a child's best interests, to give greater
weight to the primary consideration that protects the child from harm
in cases if there is inconsistency in applying the considerations.
Subsection 60CC(2) of the Act provides that the two 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.
Where child safety is a concern, this new provision will provide the
courts with clear legislative guidance that protecting the child from
harm is the priority consideration.
Item 18: Paragraph 60CC(3)(c)
31. Item 18 repeals paragraph 60CC(3)(c) of the Act and replaces it with
new paragraphs 60CC(3)(c) and (ca).
32. Current paragraph 60CC(3)(c) is commonly referred to as the 'friendly
parent provision'. This provision required the family courts to
consider the willingness of one parent towards the other in
facilitating a child's relationship with the other parent. The AIFS
Evaluation of the 2006 Family Law Reforms, the Family Courts Violence
Review by the Hon Professor Chisholm AM and the Family Law Council
report to the Attorney-General, Improving responses to family violence
in the family law system, noted the impact this provision had in
discouraging disclosures of family violence and child abuse. These
reports indicate that parties were not disclosing concerns of family
violence and child abuse for fear of being found to be an 'unfriendly
parent'.
33. The repeal of paragraph 60CC(3)(c) is intended to remove this
disincentive and enable all relevant information to be put before the
courts for consideration in making parenting orders. Removal of the
'friendly parent' provision will not prevent the court from
considering a range of matters relevant to the care, welfare and
development of the child such as a parent's attitude to the
responsibilities of parenthood.
34. New paragraphs 60CC(3)(c) and (ca) will substantially re-enact the
content of current paragraphs 60CC(4)(a) and (c) which are to be
repealed by item 20. The purpose of these provisions was to ensure
that, when determining the best interests of the child, the court
takes into account whether a person has failed to fulfil their
parental responsibility obligations in the past.
35. Proposed paragraph 60CC(3)(c) will require the court to consider the
extent to which each of the child's parents has fulfilled, or failed
to fulfil, his or her responsibilities as a parent. This will include
the extent to which each parent has taken, or failed to take, the
opportunity to spend time with the child, communicate with the child,
and participate in decision-making about major long-term issues in
relation to the child.
36. Proposed paragraph 60CC(3)(ca) will require the court to consider the
extent to which each parent has fulfilled, or failed to fulfil, his or
her obligation to maintain the child.
37. The proposed amendments to paragraph 60CC(3)(c) and the new paragraph
60CC(3)(ca) are not intended to restrict the matters to which the
court may have regard under paragraph 60CC(3)(m).
Item 19: Paragraph 60CC(3)(k)
38. Item 19 deletes paragraph 60CC(3)(k) and replaces it with a similar
provision which removes the requirement that a family violence order
must be final or contested. The effect of this new paragraph is the
courts must have regard to any family violence order made--including
interim, non-contested and police issued order--and give appropriate
weight to these orders. The definition of 'family violence order' in
subsection 4(1) of the Act remains unchanged. This definition draws
on orders made under prescribed state and territory legislation.
39. The proposed amendments to paragraph 60CC(3)(k) are not intended to
restrict the matters to which the court may have regard under
paragraph 60CC(3)(m).
Item 20: Subsections 60CC(4) and (4A)
40. Item 20 will repeal subsections 60CC(4) and (4A) of the Act. As
explained in item 18, paragraphs 60CC(4)(a) and (c) will be
substantially re-enacted in paragraphs 60CC(3)(c) and (ca).
Subsection 60CC(4A) is to be repealed on the basis that it currently
qualifies subsection 60CC(4) and will therefore become redundant with
the repeal of that subsection. The repeal of subsections 60CC(4) and
(4A) will not inhibit the courts' ability to consider events and
circumstances since parental separation which may be considered under
paragraph 60CC(3)(m).
Item 21: At the end of Subdivision BA of Division 1 of Part VII
41. Item 21 inserts new obligations on parties to provide the court with
information regarding risks to the child, or another child who is a
member of the child's family. Information about whether a child is or
has been the subject of a care order, notification or investigation
under a child welfare law is crucial in assisting the family courts to
make decisions about children. This information is an indicator of
the risks of harm to the child and may alert the court to other
evidence relevant to the child's welfare and best interests. In
addition, the information will assist the court in determining whether
jurisdictional matters under section 69ZK arise and whether to request
the involvement of relevant child welfare authorities.
Section 60CH - Informing court of care arrangements under child welfare
laws
42. Proposed section 60CH requires parties to parenting proceedings to
notify the court if the child or another child who is a member of the
child's family is under the care of a person under a child welfare
law. This proposed section further provides that a person who is not
party to proceedings may advise the court if the child or another
child who is a member of the child's family is under the care of a
person under a child welfare law. Under proposed subsection 60CH(3),
the validity of any orders made by the court will not be affected by a
failure to inform the court about such care arrangements. Despite
this, the limitation in section 69ZK of the Act, which restricts the
circumstances in which the courts can make orders in relation to a
child who is under the care of a person under a child welfare order,
will prevail over section 60CH.
Section 60CI - Informing court of notification to, and investigations by,
prescribed State or Territory agencies
43. Proposed section 60CI requires parties to parenting proceedings to
disclose to the court whether the child has been the subject of a
notification or report to, or investigation, inquiry or assessment by,
a prescribed child welfare authority. This proposed section will
further provide that a person who is not a party to the proceedings
may advise the court about whether the child has been the subject of a
notification or report to, or investigation, inquiry or assessment by,
a prescribed child welfare authority. A failure to inform the court
will not affect the validity of any orders made by the court.
Item 22: After Subdivision BA of Division 1 of Part VII
44. Item 22 inserts new Subdivision BB in Division 1 of Part VII which
outlines the obligations on advisers when working with parents to
reach parenting arrangements for their children. As with current
section 63DA of the Act, an adviser is defined as a legal
practitioner, family counsellor, family dispute resolution
practitioner or a family consultant.
45. Proposed subdivision BB creates new section 60D. It directs advisers,
when providing advice about parenting and other arrangements under
Part VII of the Act, to inform people they are assisting, whether
parents or not, of the need to focus on the best interests of the
child and encourage them to consider this by looking at specific
matters.
46. Where there is inconsistency in applying the primary considerations of
a child's right to a meaningful relationship with each parent and the
child's right to be protected from harm, advisers are required to
encourage parents to prioritise the child's safety. This approach is
consistent with the amendments made by item 17 which concerns the best
interests of a child in court proceedings. The new adviser
obligations help parents to consider the protection of their children
from harm as a priority at an early stage of discussions with the
assistance of their advisers.
Item 23: Section 60K
47. Item 23 repeals section 60K, which requires the court to take prompt
action in relation to allegations of child abuse or family violence.
Section 60K will be substantially re-enacted in proposed section 67ZBB
(Court to take prompt action in relation to allegations of child abuse
or family violence) to be inserted by item 34. Proposed section 67ZBB
is located more appropriately near sections 67Z and 67ZBA which,
respectively, impose obligations to report child abuse and family
violence to the courts.
Item 24: Before subsection 63DA(1)
48. Item 24 amends section 63DA to provide that new adviser obligations
set out in new Subdivision BB (section 60D) are in addition to
obligations on advisers under section 63DA of the Act to give certain
advice in connection with the making of parenting plans in relation to
a child. This item should be read in conjunction with item 22 of this
Schedule, which requires advisers to encourage parents to take account
of the child's best interests and prioritising the child's safety.
Item 25: Paragraph 63DA(2)(c)
49. Item 25 repeals paragraph 63DA(2)(c), which requires advisers to
inform their clients that decisions made in developing parenting plans
should be made in the best interests of the child. This obligation is
expanded upon in new Subdivision BB (section 60D) to be inserted by
item 22, which applies to all advice by advisers about matters under
Part VII of the Act (dealing with children's matters), not just advice
given in connection with the making of a parenting plan. The new
obligations in Subdivision BB are additional to those set out in
section 63DA, which concerns the obligations of advisers in relation
to parenting plans.
Item 26: Subsection 65DAA(5) (note 1)
50. Item 26 repeals 'Note 1' under existing subsection 65DAA(5) of the
Act. This note outlines the relevant behaviour the court should take
into account with respect to paragraph 65DAA(5)(c) in determining what
parenting order the court should make in the best interests of the
child. The note identifies the additional considerations in
subsection 60CC(3), particularly paragraphs 60CC(3)(c) and (i), as
relevant behaviour the court should take into account. This note is
no longer necessary due to the repeal of paragraph 60CC(3)(c) by
item 18.
Item 27: Subsection 65DAA(5) (note 2)
51. Item 27 relabels 'Note 2' as 'Note' as a consequence of 'Note 1' being
repealed by item 26.
Item 28: Paragraph 67A(c)
52. Item 28 amends paragraph 67A(c) of the Act. Section 67A provides an
outline of the matters addressed in Division 8 of Part VII of the Act.
The amendment updates the outline to inform the reader that
Subdivision D of Division 8 of Part VII contains provisions relating
to allegations of family violence as well as child abuse. This is
consequential to amendments made by item 34.
Item 29: Subdivision D of Division 8 of Part VII (heading)
53. Item 29 updates the heading of Subdivision D of Division 8 of Part VII
to inform the reader that Subdivision D contains provisions relating
to allegations of family violence as well as child abuse. The heading
is amended as a consequence of item 34 which inserts new
sections 67ZBA and 67ZBB into the Act. Respectively, these provisions
concern allegations of family violence and obligations on the courts
to act promptly in relation to allegations of child abuse or family
violence.
Item 30: Subsection 67Z(1)
54. Item 30 amends subsection 67Z(1) of the Act to apply it to an
'interested person' in proceedings under the Act, which is broader
than its current application, namely, to a party to proceedings under
the Act. Item 32 will insert a new definition of 'interested person'
to ensure that section 67Z applies to parties to proceedings under the
Act, an independent children's lawyer who represents the interests of
a child in the case and other persons prescribed by the regulations.
The heading of section 67Z is altered to reflect the broadening of the
persons covered by that provision.
Item 31: Subsection 67Z(2)
55. Item 31 amends subsection 67Z(2) to refer to an 'interested person'
instead of a 'party'. This reflects the amendments to items 30
and 32, which extend section 67Z to interested persons and define
these in broad terms. Under this item, an 'interested person' will be
required to file a notice in the court and serve a true copy of the
notice upon the person who is alleged to have abused the child or from
whom the child is alleged to be at risk of abuse.
56. The Family Court currently prescribes a Notice of Child Abuse or
Family Violence (Form 4) for the purposes of existing
subsection 67Z(2) under the current Family Law Rules 2004.
Item 32: Subsection 67Z(4)
57. Item 32 amends subsection 67Z(4) to include a definition of
'interested person'. The purpose of this change is to ensure certain
people, such as the parties to proceedings and any independent
children's lawyer representing a child in the case, are required to
file a notice (currently a Notice of Child Abuse or Family Violence
(Form 4) under the Family Law Rules)) in the court. Respectively,
paragraphs (a) and (b) of the definition of 'interested person' mean a
party to the proceedings or an independent children's lawyer who
represents the interests of a child in the proceedings. Paragraph (c)
of the definition enables regulations to prescribe persons in addition
to those persons set out in paragraphs (a) and (b). The prescription
is intended to provide flexibility.
58. This item is to be read in conjunction with items 30 and 31.
Item 33: At the end of subsection 67ZA(3)
59. Item 33 inserts a note at the end of existing subsection 67ZA(3),
which authorises certain persons (such as lawyers, family dispute
resolution practitioners, family consultants, family counsellors and
certain Registrars) to notify a prescribed child welfare authority of
reasonable suspicions that a child has been ill treated, is at risk of
being ill-treated, or is at risk of, or has been exposed or subjected
to, behaviour which psychologically harms the child. The note
clarifies that a person who is authorised to report their suspicions
under subsection 67ZA(3) is not excused from mandatory reporting
obligations arising under subsection 67ZA(2) where that person has
reasonable grounds for suspecting that a child has been abused or is
at risk of abuse.
Item 34: At the end of Subdivision D of Division 8 of Part VII
Section 67ZBA - Where interested person makes allegation of family violence
60. Item 34 inserts new section 67ZBA, which creates obligations upon an
'interested person' in proceedings for an order under Part VII of the
Act who makes an allegation of family violence. This provision is
based on section 67Z of the Act which creates similar obligations in
relation to allegations of child abuse. It is intended to ensure that
family courts receive the best possible evidence of family violence.
61. Subsection 67ZBA(1) applies if family violence has been alleged by an
interested party, as a consideration that is relevant to whether the
court should make or refuse to make an order sought under Part VII of
the Act.
62. Subsection 67ZBA(2) provides that where an interested person makes an
allegation of family violence, that person must file a notice in the
prescribed form in the court, and serve a true copy of the notice on
the party to proceedings to whom the allegation referred to in
paragraph 67ZBA(1)(a) or (b) relates. It would be open to the courts
to prescribe the same notice for the purposes of subsection 67ZBA(2)
as is prescribed for the purposes of subsection 67Z(2). Currently,
the notice prescribed by the Family Court for the purposes of
subsection 67Z(2) is a Notice of Child Abuse or Family Violence
('Form 4) under the Family Law Rules).
63. Subsection 67ZBA(3) sets out the obligations where the alleged family
violence (or risk of family violence) is also abuse of a child (or
risk of abuse of a child). This subsection clarifies that, in such
cases, only one notice is required to be filed and served, either
under subsection 67Z(2) or subsection 67ZBA(2). If the notice is
filed under subsection 67ZBA(2) the Registry Manager must deal with
the notice as if it has been filed under subsection 67Z(2).
64. Subsection 67ZBA(3) contains a note to clarify that the notice must be
filed and served under the requirements in subsection 67Z(2) if the
allegation of abuse of a child (or a risk of abuse of a child) relates
to a person who is not a party to the proceedings.
65. Subsection 67ZBA(4) defines the terms 'interested person', 'prescribed
form' and 'Registry Manager' for the purposes of section 67ZBA.
66. An 'interested person' is defined to mean: a party to the proceedings;
an independent children's lawyer who represents the interests of a
child in the proceedings; and any other person prescribed by the
regulations for the purpose of that paragraph. The prescription is
intended to provide flexibility.
67. To ensure that a consistent approach to the reporting of child abuse
is taken, the definition of 'Registry Manager' is defined to have the
same meaning as in section 67Z of the Act.
68. The intentof section 67ZBA is to provide for the filing of a written
notice when an interested person wishes to make an allegation of child
abuse or family violence in proceedings under Part VII of the Family
Law Act. This is essential to allow the court to deal efficiently and
effectively with the allegation. An allegation may itself be set out
in a prescribed notice. The prescribed notice must be filed in the
court hearing the proceedings and served on the person against whom
the allegation is made.
Section 67ZBB - Court to take prompt action in relation to allegations of
child abuse or family violence
69. Item 34 inserts new section 67ZBB. Section 67ZBB substantially re-
enacts existing section 60K. The proposed provision will be located
in Subdivision D of Division 8 of Part VII of the Act, which is a more
appropriate position as that subdivision deals with allegations of
child abuse and family violence.
70. As with section 60K, proposed section 67ZBB will place an obligation
on the court to take prompt action in relation to allegations of child
abuse or family violence. The new provision operates in broadly in
the same way as section 60K.
71. New subsection 67ZBB(1) sets out the application of section 67ZBB. It
applies where a notice is filed under subsection 67Z(2) or 67ZBA(2) in
proceedings for an order under Part VII in relation to a child and the
notice alleges, as a consideration relevant to whether the court
should make or refuse to make the order, that: there has been abuse of
the child or would be a risk of such abuse if the proceedings were
delayed; or there has been family violence by one of the parties to
proceedings or there is a risk of such family violence.
72. Importantly, new paragraph 67ZBB(2)(c) requires the court to deal with
the issues raised by the allegation of child abuse or family violence
(or risk thereof) as expeditiously as possible.
73. In addition, the combined effect of new subsections 67ZBB(2) and (3)
is that the court must, as soon as practicable and, if appropriate,
within eight weeks after the notice is filed, consider what interim or
procedural orders (if any) should be made to enable appropriate
evidence about the allegations to be obtained expeditiously as
possible and to protect the child or any of the parties to
proceedings. The kinds of orders encompassed by
paragraphs 67ZBB(2)(a) and (b) include orders for the preparation of a
family report, orders requiring the appointment of an independent
children's lawyer; and orders to obtain documents or information from
a prescribed State or Territory agency under section 69ZW.
Paragraph 67ZBB(2)(b) states that the court must make such orders
where appropriate.
74. New subsection 67ZBB(4) requires the court, which has to consider what
orders (if any) it should make under subparagraph 67ZBB(2)(a)(i) to
enable appropriate evidence about the allegation to be obtained as
expeditiously as possible, to specifically consider whether it should
make orders under section 69ZW to obtain documents or information
relating to the allegation from a prescribed State or Territory
agency. This new subsection will not limit the powers of the court
under subparagraph 67ZBB(2)(a)(i).
75. New subsection 67ZBB(5) requires the court, which has to consider what
orders (if any) it should make under subparagraph 67ZBB(2)(a)(ii) to
protect the child or any of the parties to proceedings, to
specifically consider whether it should make orders or grant an
injunction under section 68B. This new subsection will not limit the
powers of the court under subparagraph 67ZBB(2)(a)(ii).
76. New subsection 67ZBB(6) provides that the validity of an order will
not be affected by a failure to comply with proposed section 67ZBB.
Item 35: Section 68N (note)
77. Item 35 repeals the note at the end of section 68N, which references
other provisions dealing with family violence. This note is
unnecessary and risks becoming unwieldy with the addition of new
family violence provisions. The outline of Part VII at section 60C
already provides guidance to the reader about provisions relating to
family violence.
Item 36: Subsection 69ZH(2)
78. Item 36 amends subsection 69ZH(2) to include a reference to proposed
Subdivision BB. The effect of this amendment is that new Subdivision
BB, inserted by item 22 of Schedule 1, will be read down to only apply
to a child of a marriage, or the child's parents as parties to the
marriage, in those States that have not referred constitutional power
with respect to ex-nuptial children. Subdivision BB will also be read
down according to subsection 69ZH(3) of the Act relating to parental
responsibility.
Item 37: Paragraph 69ZN(5)(a)
79. Item 37 amends section 69ZN, which outlines the principles for
conducting child-related proceedings. Paragraph 69ZN(5)(a) will be
repealed and replaced with a new sub-principle based on terminology
consistent with other provisions in Part VII of the Act. The proposed
sub-principle is to safeguard 'the child concerned from being
subjected to, or exposed to, abuse, neglect or family violence'. This
amendment does not change the substance of paragraph 69ZN(5)(a).
Item 38: Before paragraph 69ZQ(1)(a)
80. Item 38 inserts new paragraph 69ZQ(1)(aa), which imposes a new duty on
the court to actively ask each party to child-related proceedings
about the existence, or risk, of child abuse or family violence. The
imposition of this duty supports the family courts' obligation under
subsection 68ZN(5) to conduct proceedings in a way that will safeguard
the child and the parties to the proceedings from harm.
81. The proposed new paragraph 69ZQ(1)(aa) is intended to work in tandem
with proposed new section 67ZBA, being inserted by item 34, which
seeks to ensure that wherever an interested person makes an allegation
of child abuse or family violence the allegation must be supported by
a prescribed notice (which may be in the form of the existing Form 4
under the Family Law Rules). The provision responds to research
findings that victims of violence are unlikely to disclose violence
unless they are directly asked about their experiences. It will be a
matter for the courts to develop practices around when and how this
duty would be discharged.
Item 39: At the end subsection 91B(2)
82. Item 39 inserts a new note at the end of existing section 91B, which
allows a court to request a child welfare officer to intervene in
proceedings that affect or may affect the welfare of a child. The
purpose of this note is to alert the reader to the immunity for costs
provision in proposed subsection 117(4A) to be inserted by item 42.
Under proposed subsection 117(4A), the court must not make an order
for costs or security for costs against an officer of a child welfare
authority or a Commonwealth, State or Territory entity which has
engaged or employed such an officer where the officer has intervened
in proceedings at the request of the court and acted in good faith in
relation to the proceedings.
Item 40: Subsection 117(1)
83. Item 40 removes the reference to section 117AB in subsection 117(1) as
a consequence of the repeal of section 117AB by item 43.
Item 41: Subsection 117(2)
84. Item 41 is a consequential amendment to insert a reference to new
subsection 117(4A), introduced by item 42, which introduces a new
immunity for certain officers from orders involving costs or security
for costs.
Item 42: After subsection 117(4)
85. Item 42 inserts new subsection 117(4A), which introduces an immunity
from orders for costs or security for costs for officers of a State or
Territory or of the Commonwealth who: are responsible for child
welfare laws of the State or Territory; intervene in family law
proceedings following a request by the court; and act in good faith in
relation to the proceedings. Intervention by child welfare
authorities can help the family courts to obtain information about
suspected family violence and abuse affecting the child. It can also
provide the family courts additional options to protect the child from
harm when determining parenting orders.
Item 43: Section 117AB
86. Item 43 repeals existing section 117AB of the Act. Section 117AB
requires the court to make a mandatory cost order against a party to
the proceedings, for some or all of the costs of another party, where
the court is satisfied that the first party knowingly made a false
allegation or statement in the proceedings.
87. The AIFS Evaluation of the 2006 Family Law Reforms, the Family Courts
Violence Review by the Hon Professor Chisholm AM and the Family Law
Council report to the Attorney-General, Improving responses to family
violence in the family law system, indicate that section 117AB has
operated as a disincentive to disclosing family violence. Vulnerable
parents may choose to not raise legitimate safety concerns for
themselves and their children due to fear they will be subject to a
costs order if they cannot substantiate the claims. Section 117 of
the Act allows family courts to make cost orders in response to false
statements in appropriate cases. This power was affirmed in
Claringbold & James (Costs) [2008] FamCA 57.
Part 2 - Application and transitional provisions
Item 44: Definitions
88. Item 44 provides definitions that are to be applied in the
interpretation of the application and transitional provisions related
to Schedule 1. Definitions are provided for the terms 'commencement'
and 'old Act'. These terms are defined to improve the readability of
provisions in this Part and to help the reader to determine whether
particular provisions commence before or after Schedule 1 commences.
Item 45: Application of certain amendments
89. Item 45 provides that certain new provisions in Schedule 1 apply to
all proceedings that are instituted before, on or after commencement.
This application rule prioritises the safety of children in Part VII
proceedings including those that are before the courts at
commencement. It is subject to subitem 47(1), which provides the
amendments made by Schedule 1 do not affect an order made under, or a
certificate given under subsection 60I(8) of, the Act as in force
immediately before commencement.
90. Proposed provisions that will be subject to this application rule are:
definitions related to 'abuse', 'family violence', 'exposed' and
'family member' (items 1 to 3); principles to be applied by courts
exercising jurisdiction under the Act (item 11); the introduction of a
new object underlying Part VII of the Act (item 13); the
prioritisation of safety within primary considerations, and changes to
additional considerations, in section 60CC of the Act
(items 17 to 20); requirements to inform the courts of certain matters
relating to child welfare (item 21); requirements to file notices
relating to allegations of child abuse or family violence or risk of
child abuse or family violence and for the court to take prompt action
in relation to allegations of child abuse of family violence (items 30
to 34); principles for, and general duties on the court when,
conducting child-related court proceedings (items 37 and 38); and the
removal of the mandatory cost order provision (items 40 to 43).
91. This application rule prioritises the safety of children over the cost
and convenience to the courts, witnesses and the parties who may have
matters part or fully heard. To assist the transition process,
clause 3 of the Family Violence Bill provides that the measures in
Schedule 1 will commence upon a single date to be fixed by
Proclamation. However, if any of the provisions in Schedule 1 do not
commence within a period of 6 months from the day on which the Bill
receives the Royal Assent, they commence on the day after the end of
that period. This would allow for a delayed commencement and, in
turn, help the courts to anticipate new requirements in proceedings
during the lead up to commencement.
Item 46: Section 60K of old Act to continue to apply to certain documents
92. Item 46 ensures that the courts will continue to be obligated to act
promptly in relation to certain allegations of child abuse or family
violence or a risk of child abuse or family violence notwithstanding
the repeal of section 60K of the Act. The obligations upon the court
under section 60K to act promptly will continue to apply in relation
to any document filed in the court in accordance with section 60K
prior to the commencement of Schedule 1.
Item 47: Amendments do not affect existing orders etc. or constitute
changed circumstances
93. Item 47 will ensure that existing orders and certain certificates
relating to the requirement to participate in family dispute
resolution are preserved following commencement of Schedule 1.
94. Subitem 47(1) ensures that any orders made before commencement are not
affected by the amendments in Schedule 1. This subitem would preserve
prior orders made under the Act, including cost orders made pursuant
to section 117AB (which is to be repealed under item 43 of Part 1 of
Schedule 1).
95. Subitem 47(1) also ensures that any certificate issued by a Family
Dispute Resolution Practitioner (FDRP) for the purposes of
subsection 60I(8) of the Act is not affected by the amendments in
Schedule 1. Any certificate issued under subsection 60I(8), and filed
in a court under subsection 60I(7), of the Act must be considered by
that court when it determines whether it may hear an application for a
Part VII order in relation to a child.
96. This amendment does not prevent a person who was unable to obtain a
certificate under subsection 60I(8) prior to commencement of Schedule
1 from seeking a certificate, after commencement, taking account of
the new definitions of 'family violence' and 'abuse', etc.
97. Subitem 47(2) puts beyond doubt that changes to the Act made by
Schedule 1 do not constitute such a significant change in
circumstances or new factor so as to meet the test of Rice and Asplund
(1979) FLC 90-725. That case limits the court's capacity to rehear
matters to two kinds of cases: those where there is a change in the
circumstances of the parties where some new factor has arisen which
would justify a serious step; and those where there is some factor
which was not disclosed at a previous hearing that would have been
material.
98. It is not generally in the best interests of the child to have
repeated applications concerning them before the courts.
Subitem 47(2) would not, however, prevent a person from seeking a
rehearing of a children's matter where he or she failed to disclose
child abuse or family violence that is a material concern relevant to
the best interests of the child. The courts will reconsider parenting
arrangements when material circumstances were not disclosed when the
original orders were made.
99. The note following subitem 47(2) directs the reader to the principle
in Rice and Asplund. This note is to assist readers, particularly
self-represented litigants, to understand how subitem 47(2) links to
the common law.
Item 48: Transitional, application and savings - regulations
100. Item 48 enables regulations to be made about matters of a
transitional, application or saving nature relating to amendments made
by Schedule 1. If such regulations were made, those regulations would
prevail over any transitional, application or savings provisions set
out in Part 2 of Schedule 1, to the extent of any inconsistency.
101. The purpose of this amendment is to allow the rules in items 44 to 47
to be adjusted to take account of any unexpected transitional,
application and savings matters and to take other action such as to
carve out proceedings that are part-heard, proceedings in which
judgment is reserved and appeal matters if that is considered
appropriate.
Schedule 2 - Other Amendments
Part 1 - Amendments
Bankruptcy Act 1966
Item 1: Paragraph 35A(3)(f)
102. Item 1 amends section 35A of the Bankruptcy Act 1966 (Cth) which
enables the Federal Court of Australia to transfer proceedings under
that Act to the Family Court of Australia. Presently, paragraph
35A(3)(f) provides that, subject to earlier paragraphs of
subsection 35A(3), Rules of Court made under the Federal Court of
Australia Act 1976 apply, with specific modifications, in and in
relation to the proceedings transferred to the Family Court.
103. This item, which omits the words 'the Rules of Court made under that
Act' from paragraph 35A(3)(f) of the Bankruptcy Act, is to be read in
conjunction with item 30 of Schedule 2. That amendment will empower
the Family Court to make its own rules relating to bankruptcy
proceedings transferred to it under section 35A of the Bankruptcy Act.
104. This item is also to be read in conjunction with item 2 of Schedule 2.
Item 2: At the end of subsection 35A(3)
105. Item 2 inserts a note at the end of subsection 35A(3) of the
Bankruptcy Act to signal to the reader that any proceedings
transferred from the Federal Court of Australia to the Family Court of
Australia under section 35A will be dealt with by Rules of Court made
by the Family Court for such purposes. This amendment is
consequential to the amendment made by items 1 and 30 of Schedule 2.
Family Law Act 1975
Item 3: Subsection 11F(1)
106. Item 3 amends subsection 11F(1) of the Act to expressly empower courts
exercising jurisdiction under the Act to order the parties to
proceedings to arrange for children who are the subject of proceedings
to attend an appointment or a series of appointments with a family
consultant. This amendment will remove doubt about the courts'
ability to order these appointments which is currently taking place
and being enforced in accordance with paragraph 11G(1)(b) and
subsection 11G(2) of the Act.
107. This amendment is to be read in conjunction with items 4, 15 and 16 of
Schedule 2.
Item 4: Subsection 11G(2)
108. Item 4 substitutes subsection 11G(2) with two new subsections:
subsections 11G(1A) and 11G(2).
109. Subsection 11G(1A) requires family consultants to report to the court
where a person has failed to comply with an order under
subsection 11F(1) to arrange for a child to attend an appointment with
a family consultant, or where the child fails to attend an appointment
arranged in compliance with such an order.
110. Subsection 11G(2) extends the power of the court to make further
orders where the family consultant reports failures to comply with
orders to attend family consultant appointments to reports received
under subsections 11F(1) and (1A).
111. This amendment is to be read in conjunction with items 3, 15 and 16 of
Schedule 2.
Item 5: Subsection 13C(1) (note 2)
112. Item 5 amends Note 2 following subsection 13C(1) of the Act to reflect
amendments made by item 3 of Schedule 2. This consequential change to
the Note provides a signpost to the reader indicating that the court
can also order parties to arrange for a child to attend appointments
with a family consultant.
Item 6: Subsection 24(1)
113. Item 6 amends subsection 24(1) of the Act relating to the performance
of certain duties and exercise of certain powers when the Chief Judge
of the Family Court is ill or absent from Australia. Subsection 24(1)
currently provides that whenever this situation occurs, the Deputy
Chief Judge or, if the Deputy Chief Judge is unavailable, the senior
Judge Administrator who is in Australia and is available and willing
to do so will fulfil such obligations. There are presently no Judge
Administrators in the Family Court, and no further appointments are
envisaged.
114. Accordingly, item 6 omits the words 'the senior Judge Administrator'
and substitutes these with the words 'the next senior Judge'. The
seniority of Judges assigned to the Appeal Division of the Family
Court is determined under subsection 23(4) of the Act. Under that
provision, each Appeal Division Judge has seniority according to the
day on which her or his assignment to the Appeal Division took effect.
Item 7: At the end of subsection 37A(1)
115. Item 7 inserts a new note after subsection 37A(1), which allows the
Judges of the Family Court or a majority of them to make Rules of
Court delegating powers to Registrars. The proposed note will provide
a signpost to the reader to consider new section 37AA in relation to
how subsection 37A(1) will apply to powers under existing
subsections 94(2D) and 94AAA(10) of the Act to hear and determine
applications of a procedural nature in appeals to the Family Court.
Item 8: After section 37A
116. Item 8 inserts section 37AA to expressly provide that the Family Court
may make Rules of Court delegating powers to hear and determine
applications of a procedural nature in appeals to Registrars of the
Family Court.
117. When making Rules of Court under subsection 37A(1) delegating these
powers to Registrars, the Judges of the Family Court may, under
subsection 37AA(2), specify modifications of section 37A that are to
have effect in relation to the exercise by Registrars of the powers.
Several provisions in section 37A require modification to apply to
powers that might be delegated to Registrars to hear and determine
applications of a procedural nature in Family Court appeals.
118. For example, subsection 37A(3) provides that exercise by a Registrar
of powers delegated by Rules of Court made under subsection 37A(1)
'shall, for all purposes, be deemed to have been exercised by the
Court or a Judge, as the case requires'. Applications of a procedural
nature in appeals from a single Judge decision of the Family Court of
Australia or the Family Court of Western Australia are usually heard
and determined, under subsection 94(2D) of the Act, by either a Judge
of the Appeal Division of the Family Court or a Full Court of the
Family Court.
Item 9: Subsection 55(5) (definition of appeal)
119. Item 9 repeals the definition of 'appeal' in subsection 55(5) of the
Act, and replaces it with a new definition. Section 55 sets out when
a divorce order takes effect generally and where an appeal is
instituted.
120. The term 'appeal' is currently defined in subsection 55(5) in a
limited way as it does not extend to applications to review a divorce
order made by a Judicial Registrar or a Registrar of the Family Court
of Australia, a Registrar of the Federal Magistrates Court or the
Principal Registrar or a Registrar or Deputy Registrar of the Family
Court of Western Australia.
121. The term 'appeal', as currently defined, also does not extend to
applications to review a declaration under section 55A of the Act made
by one of these court officers in divorce proceedings about the
arrangements that the spouses have made for their children, or to
rescind a divorce order under section 57 or 58 of the Act.
122. The new definition of 'appeal' expressly covers applications for
review of divorce orders, declarations under section 55A of the Act
and orders determining applications under sections 57 or 58 of the Act
for the rescission of a divorce order.
Item 10: At the end of section 60A
123. Item 10 updates section 60A of the Act which provides an outline of
what is contained in Part VII of the Act. An additional paragraph is
included to identify provisions inserted into the Act in 2006 about
the use of family dispute resolution before applying for an order
under Part VII relating to children.
Item 11: Section 60C (cell at table item 1, column headed "Divisions and
coverage")
124. Item 11 updates section 60C of the Act which sets out, in tabular
form, an outline of Part VII of the Act and the coverage of Divisions
within the Part. Table Item 1 is amended to include a reference to
'family dispute resolution' overlooked in a previous amendment.
Item 12: Section 60C (cell at table item 7, column headed "Divisions and
coverage")
125. Item 12 updates section 60C which sets out, in tabular form, an
outline of Part VII of the Act and the coverage of Divisions within
the Part. Table Item 7 is amended to include a reference to 'varying
the maintenance of certain children' overlooked in a previous
amendment.
Item 13: Section 60C (cell at table item 7, column headed "Divisions and
coverage")
126. Item 13 updates section 60C which sets out, in tabular form, an
outline of Part VII of the Act and the coverage of Divisions within
the Part. Table Item 7 is amended to include a reference to 'recovery
of amounts paid under maintenance orders' overlooked in a previous
amendment.
Item 14: Section 60C (cell at table item 12A, column headed "Divisions and
coverage")
127. Item 14 updates section 60C which sets out, in tabular form, an
outline of Part VII of the Act and the coverage of Divisions within
the Part. Table Item 12A is amended to include a reference to
'matters relating to evidence' overlooked in a previous amendment.
Items 15 and 16: Subsection 62G(5), subsection 62G(6)
128. Items 15 and 16, for consistency with the amendments made by items 3
and 4 of Schedule 2, make consequential amendments to section 62G of
the Act, which enables a court, in proceedings where the care, welfare
and development of a child who is under 18 is relevant, to direct a
family consultant to give the court a report on relevant matters.
129. Item 15 amends subsection 62G(5), which enables the court to make
appropriate orders and directions for the purpose of the preparation
of a report it has asked a family consultant to give. One example of
such an order or direction currently set out in subsection 62G(5) is
an order or direction that 'a party to proceedings, or the child,
attend an appointment or a series of appointments with a family
consultant'. Item 15 expands the example to refer to an order or
direction that 'one or more parties to the proceedings attend, or
arrange for the child to attend, an appointment or a series of
appointments with a family consultant'.
130. Reflecting the recasting of the example in subsection 62G(5), item
16 amends subsection 62G(6) to include new paragraph 62G(6)(b) which
provides that the family consultant must report any failure of a child
to attend an appointment arranged in compliance with an order or
direction under subsection 62G(5).
Item 17: At the end of subsection 64B(1)
131. Item 17 amends subsection 64B(1) to clarify that a declaration or
order under Subdivision E, Division 1 of Part VII is not a 'parenting
order'. This amendment relates to parentage testing orders under
section 69W, parentage declarations under section 69VA and other
orders in Subdivision E associated with parentage testing orders, for
example, orders to make the parentage testing procedure more effective
and reliable, and orders requiring people who have prepared reports
about information obtained from parentage testing to give evidence in
relation to those reports.
Item 18: At the end of section 66A
132. Item 18 updates section 66A which provides an outline of what Division
7 of Part VII deals with and contains. An additional paragraph is
included to indicate that Division 7 'deals with the recovery of
amounts paid under maintenance orders (Subdivision G)' which was
overlooked in a previous amendment.
Item 19: At the end of paragraph 68LA(6)(a)
133. Item 19 involves the correction of a drafting error. It inserts the
word 'and' at the end of a paragraph to clarify that the provision,
which concerns the non-disclosure obligations of independent
children's lawyers, should be read cumulatively.
Item 20: Subsection 69N(4)
134. Item 20 involves the correction of a drafting oversight in subsection
69N(4), which deals with the powers of the court when transfer of
proceedings from courts of summary jurisdiction in certain cases.
That provision empowers the court to make such orders as it considers
necessary pending the disposal of proceedings by the court to which
they are transferred. Subsection 69N(4) contains an outdated
reference to making orders under subsection 62F(2) repealed in 2006.
The reference to repealed subsection 62F(2) is substituted with a
reference to existing subsection 13C(1) which, since 2006, has
established an equivalent power to order parties to do certain things
at any stage in proceedings.
Item 21: Section 69ZS (note 2)
135. Item 21 amends Note 2 following existing section 69ZS to provide a
signpost to the reader indicating that the court may order parties to
proceedings to attend appointments with a family consultant.
Item 22: Section 69ZU
136. Item 22 repeals section 69ZU of the Act. Section 69ZU currently
restricts the use of an opinion given by a family consultant unless it
is given as sworn evidence. Section 69ZU reflects past Family Court
practice under which family consultants were sworn in on the first day
of a less adversarial trial ensuring that any future testimony given
in the matter had the character of sworn evidence. This practice is
no longer followed. This means that family consultant reports ordered
under section 62G of the Act and other documents prepared by family
consultants must be verified by affidavit if they contain statements
of opinion. Section 69ZU treats statements of opinion by family
consultants less favourably than statements made by other persons that
are routinely admitted into evidence in parenting proceedings through
documents produced on subpoena.
137. For the above reasons, section 69ZU is repealed to enable a court to
be able to take into account any opinion expressed by a family
consultant in child related proceedings under the Act without the
family consultant having given the opinion as sworn evidence.
Items 23 to 25: Before paragraph 70NAF(3)(a); After paragraph 70NEB(1)(d);
After section 70NEC
138. Items 23 to 25 amend provisions in Division 13A of Part VII of the
Act, which provide for the consequences of failure to comply with
orders under the Act affecting children. The amendments take account
of observations made by the Full Family Court in Elspeth & Peter; Mark
& Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 about
provisions that enable the courts to require persons in breach of
orders to enter into a bond.
139. In Elspeth & Peter the Full Family Court drew attention to two
oversights in the amendments made by the Family Law Amendment (Shared
Parental Responsibility) Act 2006 relating to less serious
contraventions of an order affecting a child. A contravention of such
an order is 'less serious' where the person has not behaved in a way
that showed a serious disregard for his or her obligations under the
order, and has not earlier had a sanction imposed for contravening the
order.
140. The first oversight concerns the obligation on the court, before
requiring the person to enter into the bond, to explain to the person,
in language likely to be readily understood, the consequences of
failing to enter into the bond. The Full Family Court observed that,
unlike the case for serious contraventions, there were no provisions
that set out or explained what the consequences might be. To address
this, item 24 amends subsection 70NEB(1) of the Act to insert new
paragraph 70NEB(1)(da). This proposed paragraph would enable a court,
if a person fails without reasonable excuse to enter into a bond as
required by a court for a less serious contravention of an order
affecting a child, to impose on the person a fine not exceeding
10 penalty units.
141. The second oversight is that there is no mirror provision to section
70NFF of the Act, which sets out the consequences of failing to comply
with a bond entered into in relation to a more serious contravention.
To address this oversight, item 25 inserts new section 70NECA which
sets out, in similar terms to section 70NFF, the consequences of
failing to comply with a bond entered into for a less serious
contravention of an order affecting a child. The consequences enable
a court, where satisfied that the person has failed, without
reasonable excuse, to comply with the bond, to impose a fine not
exceeding 10 penalty units or to revoke the bond and deal with the
person for his or her original contravention in any manner in which he
or she could have been dealt with for that contravention if the bond
had not been entered into.
142. Section 4AA of the Crimes Act 1914 (Cth) currently provides that a
penalty unit is an amount of $110.00.
143. Recognising the power to impose a fine under paragraphs 70NEB(1)(da)
and 70NECA(3)(a) is punitive, item 23 amends subsection 70NAF(3) to
require the standard of proof to be reached before a court may make an
order under paragraph 70NEB(1)(da) or paragraph 70NECA(3)(a) is for
the court to be satisfied beyond reasonable doubt that the grounds for
making the order exist.
Item 26: Subsection 70NFF(2)
144. Item 26 corrects a drafting oversight in subsection 70NFF(2), which
sets the consequences that arise when the court is satisfied that the
person has, without reasonable excuse, failed to comply with a
community service order or a bond. Subsection 70NFF(2) operates on
the condition 'if the court (whether or not constituted by the judge
or magistrate...) is satisfied'. Given the Federal Magistrates
Court's central role in enforcing parenting orders, it is useful to
include a reference to 'Federal Magistrate' in subsection 70NFF(2).
Item 27: Section 96AA
145. Item 27 enhances the Family Court's power to dismiss appeals. The
item repeals existing section 96AA and replaces it with a new
provision that gives the Family Court power to dismiss an appeal
(generally or in relation to a particular ground) where, having regard
to the grounds of appeal disclosed in the relevant notice of appeal,
the appeal has no reasonable prospect of success (either generally or
in relation to a particular ground). The proposed amendment is more
in line, but not identical to, similar provisions in other
Commonwealth Acts dealing with other federal courts.
146. The amendment will mean that the Court's power to dismiss appeal
proceedings is available at times other than, as well as during, the
hearing of the appeal. The item also changes the basis on which the
Family Court may dismiss an appeal. Currently, the Family Court may
only dismiss an appeal where there are no proper grounds of appeal.
Under this item, the Family Court will be able to dismiss an appeal if
it appears to the court, having regard to the grounds of appeal as
disclosed in the notice of appeal, that the notice of appeal has no
reasonable prospect of success. That is, the focus of item 27 on the
'prospects of success' would allow the Family Court to dismiss an
appeal that is founded on a proper ground of appeal, but which has no
reasonable prospect of success.
147. Item 27 will not limit any other powers of the Family Court. For
example, the Court's power to order a stay of appeal proceedings would
remain even though the express reference to this power will be
removed.
Item 28: After section 98
148. Item 28 inserts sections 98AA and 98AB into the Act. Respectively,
these new provisions will authorise the categories of people before
whom an oath or affirmation may be administered, and an affidavit may
be sworn or affirmed, for Family Court purposes. The proposed
provisions would be closely aligned to similar provisions in the
Federal Magistrates Act 1999 (Cth) (see sections 58 and 59 of that
Act). However, references to Commissioners of the High Court and the
State and Territory Supreme Courts will not be included in proposed
section 98AB on the basis that these either have no practical effect
or have limited operation. An authorisation given under
subsection 98AA(2) or (3) would not be of a legislative character and,
as such, would not be a legislative instrument for the purposes of the
Legislative Instruments Act 2003 (Cth).
Item 29: Subsection 112AH(2)
149. Item 29 corrects a drafting oversight in subsection 112AH(2), which
sets the consequences that arise when the court is satisfied that a
person has, without reasonable excuse, failed to comply with a
sentence or community service order. Subsection 112AH(2) operates on
the condition 'if the court (whether or not constituted by the judge
or magistrate...) is satisfied'. Given the Federal Magistrates
Court's central role in enforcing parenting orders, it is useful to
include in subsection 112AH(2) a reference to 'Federal Magistrate'.
Item 30: After paragraph 123(1)(ba)
150. Item 30 inserts a new rule making power into subsection 123(1) of the
Act. This item will allow the Family Court to make Rules of Court
providing for and in relation to proceedings transferred to the Family
Court under section 35A of the Bankruptcy Act.
151. This item is to be read in conjunction with items 1 and 2 of
Schedule 2.
Part 2 - Application and transitional provisions
Item 31: Application of amendments made by items 1, 2 and 30
152. Item 31 sets out the application of items 1, 2 and 30 of Schedule 2
which, collectively, will amend the Family Law Act and the Bankruptcy
Act to allow the Family Court to make Rules of Court providing for,
and in relation to, proceedings transferred under section 35A of the
Bankruptcy Act from the Federal Court of Australia to the Family Court
of Australia. Item 31 provides that these amendments will apply to
all proceedings transferred to the Family Court whether before, on or
after the commencement of items 1, 2 and 30 of Schedule 2.
153. After commencement, all new matters and active matters being heard on
the basis that the Federal Court (Bankruptcy) Rules 2005 apply will be
dealt with according to new Family Court Rules of Court to be made
under revised subsection 123(1) of the Act.
Item 32: Saving of orders and directions under subsections 11F(1) and
62G(5)
154. Item 32 saves any order or direction made under subsections 11F(1) or
62G(5) relating to appointments with family consultants (including any
application for such an order or direction), in force immediately
before the commencement of items 2 and 15 of Schedule 2, as if it were
an order or direction (or an application for an order or application)
under subsection 11F(1) or 62G(5) after that commencement.
Item 33: Application of amendment made by item 9
155. Item 33 ensures that the amendments made by item 9 of Schedule 2 apply
to all appeals, applications, interventions or reviews referred to in
that item whether instituted before, or after the commencement of item
9. This means that a divorce will generally take effect at the
expiration of 1 month after any appeal, application, intervention or
review is determined or discontinued.
156. Subitem 33(2) provides that amendments made by item 9 of Schedule 2 do
not affect any divorce orders that have taken effect before the
commencement of that item.
Item 34: Application of amendment made by item 17
157. Item 34 provides that the amendments made by item 17 of Schedule 2,
which provide that certain declarations or orders made under
Subdivision E of Division 12 of Part VII of the Act (such as parentage
testing orders, parentage declarations) are not 'parenting orders',
will apply in relation to declarations and orders whether made before,
on or after the commencement of item 17. This means that any
proceedings involving such orders cannot be reversed solely on any
earlier characterisation of these orders in accordance with section
64B of the Act in its terms before the commencement of item 17.
Item 35: Application of amendment made by item 22
158. Item 35 provides that the amendment made by item 22 of Schedule 2,
which concerns the court's ability to consider opinions expressed by a
family consultant, apply regardless of whether that opinion was
expressed before, on or after the commencement of item 22. This means
that, after the commencement of item 22, a court may take into account
any opinion expressed by a family consultant in child-related
proceedings under the Act without the family consultant having given
the opinion as sworn evidence.
Item 36: Application of amendments made by items 24, 25 and 26
159. Item 36 sets out the application of items 24, 25 and 26, which relate
to new measures relating to the enforcement of bonds.
160. Subitem 36(1) provides that item 24, which enables the court to impose
a fine on a person who has not complied with a requirement to enter a
bond in relation to a less serious contravention, will apply to all
orders requiring persons to enter bonds regardless of whether those
orders were made before, on or after the commencement of item 24.
161. Subitem 36(2) provides that item 25, which sets out a procedure for
the court to enforce a bond imposed in relation to a less serious
contravention, will apply to all bonds entered into regardless of
whether those bonds were entered into before, on or after the
commencement of item 25.
162. Subitem 36(3) provides that item 26, which inserts the words 'Federal
Magistrate' into subsection 112AH(2), will apply in relation to
community service orders or orders requiring persons to enter bonds
made before, on or after the commencement of that amendment.
Item 37: Application of amendment made by item 27
163. Subitem 37(1) provides that the amendment made by item 27 of Schedule
2, relating to the Family Court's power under section 96AA of the Act
to dismiss appeal proceedings, will apply in relation to appeals
instituted before, on or after the commencement of that item.
Subitem 37(2) provides that any dismissal or stay of proceedings on an
appeal prior to the commencement of item 27 is not affected by the
proposed repeal and replacement of section 96AA of the Act.
Item 38: Application of amendment made by item 29
164. Item 38 provides that the amendment made by item 29, which inserts the
words 'Federal Magistrate' into subsection 112AH(2), will apply in
relation to sentences imposed, or orders made before, on or after the
commencement of that amendment.
Index]
[Search]
[Download]
[Bill]
[Help]