Commonwealth Numbered Acts Commonwealth Numbered Acts1 Section 60C (table item 6)
Omit “—stage 1 of parenting compliance regime”.
2 Section 60C (table item 13A)
Omit “—stage 2 of parenting compliance regime”.
3 Section 60C (table item 13A)
Omit “—stage 3 of parenting compliance regime”.
4 Subsection 65D(3)
Omit “paragraph 70NG(1)(c) of proceedings under Subdivision B”, substitute “paragraph 70NEB(1)(c) of proceedings under Subdivision E”.
5 Subsection 65D(3) (note)
Omit “Subdivision B”, substitute “Subdivision E”.
Note: The heading to section 65DA is altered by omitting “ : stage 1 of parenting compliance regime ”.
6 Division 13A of Part VII
Repeal the Division, substitute:
Division 13A — Consequences of failure to comply with orders, and other obligations, that affect children
70NAA Simplified outline of Division
(1) This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
(2) The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).
(3) The other orders that the court can make depend on whether:
(a) a contravention is alleged to have occurred but is not established (Subdivision C); or
(b) the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c) the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.
70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
70NAD Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
70NAE Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
Subdivision B — Court’s power to vary parenting order
70NBA Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b) there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
70NBB Effect of parenting plan
(1) This section applies if:
(a) a parenting order has been made in relation to a child (whether before or after the commencement of this section); and
(b) after the parenting order was made, the parents of the child made a parenting plan that dealt with a matter (the relevant matter ) that was dealt with in the parenting order.
(2) If:
(a) section 70NBA applies to proceedings brought in relation to the parenting order in relation to the relevant matter; and
(b) the parenting plan was in force when the contravention of the parenting order:
(i) is alleged to have been committed; or
(ii) occurred;
the court must, in exercising its powers under section 70NBA:
(c) have regard to the terms of the parenting plan; and
(d) consider whether to exercise its powers under section 70NBA to make an order varying the parenting order to include (with or without modification) some or all of the provisions of the parenting plan.
Note: An action that would otherwise contravene a parenting order may not be a contravention because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order (see section 64D).
Subdivision C — Contravention alleged but not established
70NCA Application of Subdivision
This Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Subdivision; and
(b) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(c) it is alleged in those proceedings that a person (the respondent ) committed a contravention of the primary order; and
(d) the court does not find that the respondent committed a contravention of the primary order.
Note: The court may also vary the primary order under Subdivision B.
(1) The court may make an order that the person who brought the proceedings (the applicant ) pay some or all of the costs of another party, or other parties, to the proceedings.
(2) The court must consider making an order under subsection (1) if:
(a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention.
Subdivision D — Contravention established but reasonable excuse for contravention
70NDA Application of Subdivision
This Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Subdivision; and
(b) a court having jurisdiction under this Act is satisfied that a person (the respondent ) has, whether before or after the commencement, committed a contravention (the current contravention ) of the primary order; and
(c) the respondent proves that he or she had a reasonable excuse for the current contravention.
Note: The court may also vary the primary order under Subdivision B.
70NDB Order compensating person for time lost
(1) If:
(a) the primary order is a parenting order in relation to a child; and
(b) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court:
(c) may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d) must consider making that kind of order.
Note: If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).
(2) The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.
(1) If the court does not make an order under section 70NDB in relation to the current contravention, the court may make an order that the person who brought the proceedings (the applicant ) pay some or all of the costs of another party, or other parties, to the proceedings.
(2) The court must consider making an order under subsection (1) if:
(a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NEB or 70NFB in relation to the contravention.
Subdivision E — Contravention without reasonable excuse (less serious contravention)
70NEA Application of Subdivision
(1) Subject to subsection (4), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if:
(a) a court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post‑separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1: The court may also vary the primary order under Subdivision B.
Note 2: Paragraph (1)(a)—before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E).
(2) The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3) If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
(4) If:
(a) the current contravention is a contravention of a parenting order in relation to a child; and
(b) the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5) The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.
(6) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a) whether the primary order was made by consent;
(b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c) the length of the period between the making of the primary order and the occurrence of the current contravention;
(d) any other matters that the court thinks relevant.
(7) The court must consider making an order under paragraph (1)(g) if:
(a) the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
70NED Duties of provider of post‑separation parenting program
The provider of a post‑separation parenting program must inform the court if:
(a) the provider considers that a person ordered to attend the program under paragraph 70NEB(1)(a) is unsuitable to attend the program, or to continue attending the program; or
(b) a person ordered to attend the program under paragraph 70NEB(1)(a) fails to attend the program, or a part of it.
(1) Evidence of anything said, or of any admission made, by a person attending a post‑separation parenting program is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the Commonwealth, of a State or of a Territory, or by the consent of the parties, to hear evidence.
(2) Subsection (1) does not apply to the following:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse;
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
70NEG Court may make further orders in relation to attendance at program
The court may make such orders as it considers appropriate, other than the orders referred to in subsection 70NFB(2), in respect of a person, if:
(a) it appears to the court that the person has not attended a post‑separation parenting program that the person was ordered to attend; or
(b) the person was assessed as unsuitable to attend a program.
Subdivision F — Contravention without reasonable excuse (more serious contravention)
70NFA Application of Subdivision
(1) Subject to subsection (2), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies.
Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
(1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b) if the court makes an order under paragraph (2)(g)—consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c) if the court does not make an order under paragraph (2)(g)—make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section 70NFC to make a community service order—to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child—to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
Note: The court may also vary the primary order under Subdivision B.
(3) If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.
(4) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.
(5) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:
(a) a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989 ; or
(b) a breach of a child support agreement made under that Act; or
(c) a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).
(6) An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
(7) When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
70NFC When court is empowered to make a community service order
(1) Subject to this section, if, under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to make a community service order in respect of a person convicted of an offence against the law of the State or Territory, a court exercising jurisdiction in the State or Territory may, under paragraph 70NFB(2)(a) make a community service order.
(2) A community service order made under paragraph 70NFB(2)(a):
(a) is to be such that the total number of hours during which the order regulates the conduct of the person in respect of whom it is made does not exceed the maximum period in relation to the State or Territory in which the order is made; and
(b) ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order.
(3) A community service order may be an order of any of the following kinds:
(a) an order known as:
(i) a community service order; or
(ii) a work order; or
(iii) an attendance centre order; or
(iv) an attendance order; or
(v) a community based order;
(b) an order that is similar to an order referred to in paragraph (a);
(c) an order prescribed for the purposes of this paragraph.
(4) If a court exercising jurisdiction under section 70NFB in a particular State or Territory makes a community service order under paragraph 70NFB(2)(a), the provisions of the laws of the State or Territory with respect to a community service order that is made under those laws are, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, to apply in relation to the order.
(5) If a court proposes to make a community service order under paragraph 70NFB(2)(a), it must, before doing so, explain to the person in respect of whom it is made, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed order; and
(b) the consequences that may follow if the person fails to comply with the proposed order or with any requirements made in relation to the order by or under the applied provisions; and
(c) if the proposed order may be revoked or varied under the applied provisions—that the proposed order may be so revoked or varied.
(6) In this section:
"maximum period" , in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory.
"participating State" means a State in relation to which an agreement under section 70NFI is in force.
"participating Territory" means a Territory in relation to which an agreement under section 70NFI is in force.
70NFD Variation and discharge of community service orders
A community service order made under paragraph 70NFB(2)(a) may be varied or discharged:
(a) if the court that made the order is the Family Court or the Federal Magistrates Court—by either of those Courts; or
(b) otherwise—by the court that made the order or the Family Court.
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NFB(2)(b).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
Note: Before imposing a condition under this subsection, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E).
(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
70NFF Procedure for enforcing community service orders or bonds
(1) If a court makes a community service order under paragraph 70NFB(2)(a) in respect of a person, or an order under paragraph 70NFB(2)(b) requiring a person to enter into a bond in accordance with section 70NFE, the following provisions have effect.
(2) If the court (whether or not constituted by the judge or magistrate who made the community service order or required the bond to be entered into in accordance with section 70NFE) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond, the court may take action under subsection (3).
(3) The court may:
(a) without prejudice to the continuance of the community service order or the bond entered into in accordance with section 70NFE, impose a fine not exceeding 10 penalty units on the person; or
(b) revoke the community service order or the bond entered into in accordance with section 70NFE and, subject to subsection (4), deal with the person, for the contravention in respect of which the community service order was made or the bond was entered into, in any manner in which the person could have been dealt with for the contravention if:
(i) the community service order had not been made or the bond had not been entered into; and
(ii) the person was before the court under section 70NFB in respect of the contravention.
(4) In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:
(a) the fact that the community service order was made or the bond was entered into; and
(b) anything done under the community service order or pursuant to the bond; and
(c) any fine imposed, and any other order made, for or in respect of the contravention.
70NFG Sentences of imprisonment
(1) A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:
(a) for a specified period of 12 months or less; or
(b) for a period ending when the person:
(i) complies with the order concerned; or
(ii) has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
(2) A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
(3) If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:
(a) state the reasons why it is satisfied as mentioned in subsection (2); and
(b) cause those reasons to be entered in the records of the court.
(4) The failure of a court to comply with subsection (3) does not invalidate a sentence.
(5) A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:
(a) suspend the sentence upon the terms and conditions determined by the court; and
(b) terminate a suspension made under paragraph (a).
(6) A court, when sentencing a person to imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (7) after he or she has served a specified part of the term of imprisonment.
(7) A bond for the purposes of subsection (6) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.
(8) A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.
(9) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NFB(2)(e) for failure to make a payment under a child maintenance order does not affect the person’s liability to make the payment.
70NFH Relationship between Subdivision and other laws
(1) This section applies where an act or omission by a person:
(a) constitutes a contravention of an order under this Act affecting children; and
(b) is also an offence against any law.
(2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NFB in respect of the contravention of the order must:
(a) adjourn those proceedings until the prosecution has been completed; or
(b) dismiss those proceedings.
(3) The person may be prosecuted for, and convicted of, the offence.
(4) Nothing in this section renders the person liable to be punished twice in respect of the same act or omission.
70NFI Arrangements with States and Territories for carrying out of sentences and orders
An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Subdivision.
70NFJ Subdivision does not limit operation of section 105
Nothing in this Subdivision is intended to limit the operation of section 105.
7 Subsection 117(1)
After “subsection (2)”, insert “, subsection 70NFB(1)”.
Part 2 — Application of amendments and savings
8 Definitions
In this Part:
commencement means the commencement of this Schedule.
new Act means the Family Law Act 1975 as in force after commencement.
old Act means the Family Law Act 1975 as in force immediately before commencement.
9 Application
The amendments made by this Schedule apply to a contravention or alleged contravention of a parenting order, if the contravention occurs, or the alleged contravention is alleged to occur, on or after commencement.
10 Saving of regulations
Despite the repeal of a provision of the old Act specified in the following table, regulations that:
(a) were made for the purposes of that provision of the old Act; and
(b) were in force immediately before commencement;
continue to have effect on and after commencement as if those regulations had been made for the purposes of the corresponding provision of the new Act that is specified in the table in relation to that provision of the old Act:
| Saving regulations made under provisions of old Act | ||
| Item | Provision of old Act |
Corresponding provision of new Act |
| 1 | paragraph 70NK(2A)(c) | paragraph 70NFC(3)(c) |
| 2 | subsection 70NK(3) | subsection 70NFC(4) |
| 3 | definition of maximum period in subsection 70NK(5) | definition of maximum period in subsection 70NFC(6) |