Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT REGULATIONS 2001 (NO. 2) 2001 NO. 117

STATUTORY RULES 2001 No. 117

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW AMENDMENT REGULATIONS 2001 (No. 2)

Subsection 125(1) of the Family Law Act 1975 ("the Act") empowers the Governor-General to make Regulations for the purposes of the Act.

The Regulations:

•       amend Schedule 1 Forms 2, 3, 4 and 5 of the Family Law Regulations 1984 ('Principal Regulations') that deal with the parentage testing procedures and reports provided for under regulation 21; and

•       amend Schedule 5.

Subsection 69W(1) of the Act provides that a court may make an order requiring a parentage test procedure where the parentage of a child is an issue in question in proceedings before the court. Regulations 21G and 21H provide for the collection of blood and bodily samples for the purpose of determining whether the putative parent's DNA type is consonant with that of the child. The credibility of parentage testing procedures depend on their conforming with laboratory protocols accredited by the National Association of Testing Authorities Australia ('NATA'). NATA was therefore consulted in preparing the Regulations. Schedule 1 of the Regulations prescribes the forms required for the testing process.

The Regulations give effect to the purpose of the Act by:

•       simplifying Forms 4 and 5 to make it easier for parentage testing laboratories to use them; and

•       reducing administrative duplication through the consolidation of Forms 2 and 3; and

•       bringing the terminology and requisite administrative procedure of Form 5 into line with current parentage testing practices.

The revised Form 2 at Schedule 1 of the Regulations replaces Forms 2 and 3, which were the subject of some confusion. Much of the confusion was attributable to the amount of overlap between the two Forms. The new Form 2 clarifies and simplifies the process and incorporates all the necessary information and particulars that were collected through Forms 2 and 3. Regulation 21F(2) which dealt with Form 3 has been deleted as a consequence of this change.

The purpose of Form 5 is to certify that a putative parent's tissue or blood sample has been tested in accordance with accredited parentage testing protocols. The report contains a conclusion as to the probability that a putative parent is the genetic father or mother of the child. The person who completes the report ('the reporter') is a person nominated by the particular parentage testing laboratory.

Form 5 has been amended to more clearly state the physical location at which the parentage test is done and to bring the description of the parentage test result into line with current scientific practice.

Amendments have also been made for dating the forms when they are signed, to reflect current drafting practice.

Definition of 'child welfare law'

Schedule 5 of the Principal Regulations has been amended to replace references to State and Territory child welfare laws in Queensland, Victoria, Tasmania and the Australian Capital Territory which have been repealed with references to the relevant current State and Territory legislation and to update references to prescribed State and Territory offices for the purposes of the definition of 'child welfare officer'.

Details of the Regulations are contained in the attachment.

The Regulations commence on gazettal.

Attachment

Family Law Amendment Regulations 2001 (No. 2)

This is an attachment to both the explanatory memorandum and explanatory statement.

Regulation 1 - Name of Regulations

Regulation 1 provides that the Regulations are called the Family Law Amendment Regulations 2001 (No.2).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 - Amendment of Family Law Regulations 1984

Regulation 3 provides that the Principal Regulations are amended by Schedule 1 of the Family Law Amendment Regulations 2001 (No.2).

SCHEDULE 1

Item 1 - Paragraph 12BA (c)

This item replaces reference to the office of the Minister for Youth and Community Services as a prescribed office of a child welfare officer in Victoria per subsection 60D(1)(a) of the Act with reference to the office of the Secretary to the Department of Human Services.

Item 2 - Subparagraph 12BA (d)(i)

This item replaces reference to the Director of Family Services in the Australian Capital Territory (ACT) with reference to the Chief Executive of the Department of Education and Community Services, to reflect the replacement of the Children's Services Act 1986 (ACT) with the Children and Young People Act 1999 (ACT).

Item 3 - Regulation 21F, heading

Item 3 deletes the current heading used in regulation 2 IF, and replaces it with the heading 'Provision of information by donor- Form 2'.

Item 4 - Paragraph 21F(1)(a)

Item 4 inserts a new sentence in paragraph 21F(1)(a) providing that Form 2 in Schedule 1 needs to be completed immediately before the sampler takes the bodily sample from the donor.

Item 5 - Subregulation 21F(2)

item 5 omits this subregulation as it refers to Form 3, which has been replaced by Form 2.

Item 6 - Subregulation 21F(3)

Item 6 deletes the following 'and the declaration referred to in subregulation (2)', as it refers to Form 3, which has been replaced by Form 2. The new Form 2 contains a similar declaration.

Item 7 - Paragraphs 21K (2)(b) and (c)

Item 7 removes the current subparagraph (2)(b), which refers to the declaration contained in subregulation 21F(2) which is to be omitted by Item 5. It will now read 'the statement completed under regulation 21J'. This is to ensure that the references to the other regulations comply with the amendments. The current paragraph 21K(2)(c) then becomes paragraph 21 K(2)(b).

Item 8 - Schedule 1, Form 1

Item 8 amends the provision for dating Form 1 to reflect current drafting practice.

Item 9 - Schedule 1, Forms 2 and 3

Item 9 combines Forms 2 and 3, replacing them with a new Form 2 incorporating all information and particulars by or in relation to the donor into one form. Form 2 continues to be an affidavit, but is now required to be signed and witnessed on the same day the samples are collected. Further, the donor's date of birth must be included on the form, and to avoid confusion, additional instructions appear on the form. If the person swearing or affirming the affidavit is not the donor, Part II must be completed, and the form now reads "Part II must be completed on behalf of the child or adult not capable of swearing or affirming the affidavit". A note reminding the person completing the form to complete either Part 1 or Part II and to sign the affidavit on page 2 has also been added.

Item 10 - Schedule 1, Form 4

Item 10 amends the provision for dating Form 4 to reflect current drafting practice.

Item 11 - Schedule 1, Form 5, Part 1, item 1

Item 11 changes the address of the reporter from 'insert address' to more appropriately read 'insert street address of laboratory where testing was performed'.

Item 12 - Schedule 1, Form 5, Part 1, item 4

Item 12 ensures that the physical address (not post office box) of the laboratory/laboratories where the testing has been performed is recorded, and allows for multiple dates, as samples are often received on different dates and testing procedures take more than one day.

Item 13 - Schedule 1, Form 5, Part 1, items 6, 7 and 8

Item 13 repositions paragraphs 6 and 7 in Form 5 to make the form more understandable to the user. The two alternative paragraphs 6 are now placed together, as are the two alternative paragraphs 7. The item also replaces references in both paragraphs 7 to 'paternity/maternity index', which no longer reflects current parentage testing practice, with 'Putative *father/*mother is (insert figure) times more likely to produce a child with the required alleles than a *man/*woman drawn randomly from the general population. This equates to a Relative Chance of *Paternity/*Maternity of (insert figure)'. Paragraph 8 has been amended to replace the words 'item 6 and 7 or both' with 'items 6 and 7, above' for greater clarity.

Item 14 - Schedule 1, Form 5, Part 11, item 1

Item 14 amends Form 5 to allow for several dates, as samples are often received on different dates and testing takes more than one day.

Item 15 - Schedule 1, Form 5, Part 11, both items 4

Item 15 amends both paragraphs 4 in Part 11 of Form 5 to allow for several dates, as samples are often received on different dates and testing takes more than one day. References to 'laboratory workbooks' in both paragraphs 4 are replaced with 'laboratory records' to reflect current practice.

Item 16 - Schedule 1, Form 5, after item 4, second occurring

Item 16 amends the provision for dating Form 5 to reflect current drafting practice.

Item 17 - Schedule 5, item 22

Item 17 updates reference to the former Children's Services Act 1965 (Qld), replacing it with reference to the Child Protection Act 1999 (Qld).

Item 18 - Schedule 5, items 42 and 43

Item 18 updates references in paragraphs 42 and 43 of Schedule 5 to the former Child Protection Act 1974 (Tas) and Child Welfare Act 1960 (Tas), with a single paragraph 42, which refers to the Children, Young Persons and Their Families Act 1997 (Tas) which commenced on 1 July 2000.

Item 19 - Schedule 5, item 57

Item 19 updates reference to the former Children's Services Act 1986 (ACT) replacing it with reference to the Children and Young People Act 1999.