Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 339

Subsection 125(1) of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the Regulations is to update references in the Family Law Regulations 1984 (the Principal Regulations) to ensure that it reflects current State and Territory legislation.

Regulation 12BA of the Principal Regulations prescribes the definitions of "child welfare officer" for each State and Territory. In particular it gives effect to section 66F of the Act as it allows relevant State child welfare officers to apply to the Family Court for a child maintenance order. It also gives effect to section 69ZK as it provides that consent of a child welfare officer is one of the circumstances that must apply before family court orders made under the Act may override orders made under child welfare laws.

Schedule 5 to the Principal Regulations prescribes "child welfare law" for each State and Territory. This gives effect to Subdivision F of Division 12 of Part VII of the Act by allowing orders made under State and Territory child welfare laws to continue to operate except in certain specific circumstances. This subdivision deals with the interaction of State and Territory child welfare orders and orders made under the Act.

Schedule 8 to the Principal Regulations contains a table of prescribed laws related to family violence orders. This gives effect to Division 11 of Part VII of the Act which concerns inconsistencies between contact orders and family violence orders.

The Regulations:

•       update the prescribed child welfare officers in Regulation 12BA for Tasmania, Queensland, the Australian Capital Territory and the Northern Territory;

•       update the child welfare laws listed in Schedule 5 by adding new laws for New South Wales and updating references for Queensland, South Australia, the Australian Capital Territory and the Northern Territory; and

•       update the Australian Capital Territory laws listed in Schedule 6 and 8

Details of the Regulations are as follows:

Regulation 1 provides the name of the proposed Regulations as the Family Law Amendment Regulations 2003 (No. 1)

Regulation 2 provides for commencement on gazettal.

Regulation 3 provides for the amendment to the Family Law Regulations 1984.

Item 1 amends Regulation 12BA to substitute the office of the Minister for Health and Human Services as the prescribed child welfare officer for Tasmania.

Item 2 amends Regulation 12BA to substitute the:

•       office of the Chief Executive of the Department of Families as the prescribed child welfare officer for Queensland

•       offices of the Chief Executive of the Department of Education Youth and Family Services and the Chief Psychiatrist appointed under section 112 of the Mental Health (Treatment and Care) Act 1994 for the ACT; and

•       office of the Minister for Health and Community Services for the Northern Territory.

Item 3 amends the prescribed list of child welfare laws in Schedule 5 to reflect changes to NSW legislation from amendment to the Adoption Act 2000, the Children (Care and Protection) Act 1987 and the Children and Young Persons (Care and Protection) Act 1998.

Item 4 amends the prescribed list of child welfare laws in Schedule 5 to reflect changes to the Queensland Mental Health Act 2000.

Item 5 amends the prescribed list of child welfare laws in Schedule 5 to reflect changes to the South Australian Adoption Act 1988.

Items 6-9 amend the prescribed list of child welfare laws in Schedule 5 to reflect the repeal of the Tasmanian Maintenance Act 1967 and amendments to that States Youth Justice Act 1997 and the Mental Health Act 1996.

Items 10-11 amends the prescribed list of child welfare laws in Schedule 5 to reflect amendments to the Northern Territory Adoption of Children Act, Mental Health and Related Services Act, and the Guardianship of Infants Act.

Item 12 amends the prescribed list of child welfare laws in Schedule 5 to reflect amendments to the ACT legislation.

Item 13 amends Schedule 6 which prescribes laws for the purposes of subsection 60H(1) related to artificial conception to reflect changes to the ACT Status of Children Act 1996.

Item 14 amends Schedule 8 which prescribes laws related to family violence orders to reflect changes to the ACT Protection Orders Act 2001.