Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 370

EXPLANATORY STATEMENT

STATUTORY RULES 2004 No. 370

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW AMENDMENT REGULATIONS 2004 (No. 2)

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 that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The primary purpose of the Regulations is to amend the Family Law Regulations 1984 (the Principal Regulations) to add further safeguards to the parentage testing procedures prescribed under Part IIA of the Principal Regulations to reduce the risk of fraud. Other purposes of the Regulations are to update references to outdated State and Territory laws, to update references to outdated Commonwealth income support laws, to reflect changes due to the revised Family Law Rules that commenced operation in March 2004, and to update for changes in court processes.

Regulation 21F of the Principal Regulations requires a donor of a bodily sample to give the sampler an affidavit before the sample is taken. The Regulations add a requirement that a recent photograph of the donor must be attached to the affidavit that is to be provided to the sampler. This will be in addition to the current requirement that a photograph be provided to the sampler for attaching to the sample.

This amendment is to reduce the possibility of one person completing an affidavit and a different person attending an accredited laboratory for a parentage test under Part IIA of the Principal Regulations. It will be possible to compare the photograph attached to the affidavit with the photograph provided to the sampler as an extra safeguard.

This is consistent with the recommendation of the Australian Law Reform Commission (ALRC) report 96 entitled Essentially Yours: The Protection of Human Genetic Information. That report recommended that parentage testing requirements meet the highest ethical standards.

In that report the ALRC also recommended that a prescribed consent form be included in the regulations so that adult donors of genetic material could indicate that the sample was provided with their consent. Rather than insert a new form, the existing Form 2 in Schedule 1 which contains the standard form of the affidavit that is required, is amended for this purpose. The Form will prescribe that the adult donor must swear or affirm that they consent to the taking of a sample and the carrying out of testing procedures on that sample.

The existing Form 2 in Schedule 1 will also be amended to prescribe that an adult must swear or affirm that they consent to the taking of a sample from a child. The adult deponent will need to be a relevant person for the purposes of subsection 69Z(2) of the Act. That subsection of the Act provides that a parentage testing procedure must not be carried out in relation to a child without the consent of the child's parent or guardian or a person who, under a specific issues order, is responsible for the child's long-term or day-to-day care, welfare and development.

Details of the Regulations are as follows:

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2004 (No. 2).

Regulation 2 provides for the Regulations to commence on the date of Gazettal.

Regulation 3 provides that Schedule 1 amends the Family Law Regulations 1984 (the Principal Regulations).

Item 1 replaces paragraphs 12A (a), (b) and (c). The definition of `income tested pension, allowance or benefit in the general definitions section of the Act, subsection 4(1), means a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of the definition. Regulation 12A of the Principal Regulations prescribes `income tested pensions, allowances and benefits' for the purposes of this definition. This regulation is relevant for a number of purposes in the Act. For example, when a court is considering a maintenance agreement under subsection 87(4A) or a binding financial agreement under subsection 90F(1A) of the Act, a court can take into account whether the effect of the agreement is that a person will be unable to support themselves without an income tested pension, allowance or benefit. Further, under section 66C of the Act, parents have a primary duty to maintain their children, irrespective of either parent or the child being eligible for an income tested pension, allowance or benefit.

Paragraph 12A(a) of the Principal Regulations refers to a `service pension' within the meaning of the Veterans' Entitlements Act 1986 (VEA). The Regulations amend paragraph 12A(a) to add the specific section of the VEA which defines `service pension'. Subparagraphs 12A(a)(i) and (ii) insert two new allowances under the VEA, which are the Defence Force Income Support Allowance under subsection 5Q(1) and the income support supplement under Part IIIA of the VEA.

Paragraph 12A(b) of the Principal Regulations prescribes, for the purpose of the definition, social security payments under the Social Security Act 1991, excluding certain payments (family allowance, mobility allowance and a disaster relief payment). The amendment now more specifically prescribes a social security pension or social security benefit within the meaning of subsection 23(1) of the Social Security Act 1991. Examples of relevant payments under that subsection include (but are not limited to) a disability support pension, a carer payment and a special needs pension.

New paragraph 12A(c) adds to the list of prescribed payments the family tax benefit, defined by reference to the provisions of the A New Tax System (Family Assistance) Act 1999.

New paragraph 12A(ca) refers to the Aboriginal studies assistance scheme which is currently prescribed under paragraph 12A(c) of the Principal Regulations. The regulations make it clear that this is defined under the Social Security Act 1991 to remove potential ambiguity that could be caused by the reference to "that Act".

Item 2 is a technical amendment, consequential on the removal of a paragraph in regulation 12A as described by item 3. It replaces a semi-colon with a full-stop.

Item 3 omits paragraph 12A(h) of the Principal Regulations. This paragraph currently refers to a formal training assistance allowance which no longer exists.

Item 4 Regulation 12BA of the Principal Regulations prescribes child welfare officers in States and Territories for the purpose of subsection 60D(1) of the Act, which contains the definitions of child welfare officers for the purposes of Part VII of the Act related to children. Paragraph 12BA(d) refers to the `Department of Families' in Queensland. The amendment reflects the Department's change of name to the `Department of Child Safety'.

Item 5 Subregulation 15A(2) of the Principal Regulations defines for appeals in the Federal Magistrates Court what is a prescribed decree for the purposes of section 94AA of the Act. Section 94AA of the Act sets out where leave from the Full Court of the Family Court is needed for an appeal. Subregulation 15A(2) of the Principal Regulations currently refers to subsection 94AAA(1) in general which covers both a decree of the Federal Magistrates Court exercising original jurisdiction and a decree or decision of a Federal Magistrate exercising original jurisdiction under the Act rejecting an application to disqualify them from further hearing a matter.

The amendment would limits the prescribed decrees, appeals from which will not require leave, to those where the Federal Magistrates Court is exercising original jurisdiction as described by paragraph 94AAA(1)(a) of the Act. This corrects an error in the current provision. Under subsection 94(1AA) of the Act an appeal lies to the Full Court of the Family Court where a judge of the Family Court rejects an application to disqualify themself from further hearing a matter. The effect of the amendment will be that the same will apply for an appeal from such a decision by a Federal Magistrate.

Item 6 replaces an outdated reference to an Australian Capital Territory (ACT) law by a reference to the Protection Orders Act 2001 which is the current ACT legislation. Regulation 19 prescribes State and Territory laws that are not intended to be excluded or limited in operation by sections 68B, 68C, 114 and 114AA of the Act. These sections relate to the courts' powers to issue injunctions and powers of arrest.

Item 7 amends subregulation 21F(1). The subregulation provides that a sampler must not take a bodily sample for a parentage test before the donor has completed an affidavit and provided a photograph, or made an arrangement for a photograph to be taken. The temporal reference to `before' will be replaced with the word `unless' to make it clearer that when the proposed amendment under item 8 is made, the provision of an affidavit and photograph are both mandatory requirements.

Item 8 Subregulation 21F(1) specifies what information must be provided before a sampler can take a bodily sample from a donor in a parentage testing procedure. The regulations add a requirement that when a donor of a bodily sample completes an affidavit in accordance with Form 2 in Schedule 1 to the Principal Regulations, they must also attach a recent photograph. This amendment adds a reference to that photograph and is required for consistency with the proposed amendments to Form 2 of Schedule 1 of the Regulations in item 16.

Item 9 amends subregulation 21F(1) to make it clear that the provision of a photograph attached to the Form 2 affidavit is an additional requirement to the photograph supplied to the sampler or taken by the sampler when the bodily sample is taken. Subregulation 21F(1) specifies what information must be provided before a sampler can take a bodily sample from a donor in a parentage testing procedure.

Item 10 amends subregulation 21N(1) which prescribes that the National Association of Testing Authorities (NATA) must prepare a list of accredited laboratories and nominated reporters each `calendar' year for the Attorney-General, the Chief Executive Officer of the Family Court and the Registrar of the Family Court of Western Australia. This will be changed to preparation each `financial' year for convenience as the current requirement under subregulation 21N(2) is difficult to comply with. This does not substantively change the requirement, but makes it consistent with changes at item 11.

Item 11 amends subregulation 21N(2) so that instead of NATA providing a list to the Attorney-General, the Chief Executive Officer of the Family Court and the Registrar of the Family Court of Western Australia immediately before the beginning of each calendar year, it is provided immediately before the beginning of the financial year. This is to avoid problems with public holidays and staff leave which can make it difficult to meet this requirement. As stated in relation to item 10, it does not substantively change the requirement, as a list will still be prepared and provided annually. It merely ensures that the timing is more convenient.

Item 12 amends subregulation 21N(2) which sets out the people to whom NATA must provide copies of the list of accredited laboratories and nominated reporters. This item adds the word `and' to the end of paragraph 21N(2)(c) so that the Chief Executive Officer of the Federal Magistrates Court can be added as an additional person under item 13.

Item 13 inserts a new paragraph 21N(2)(d) that prescribes that NATA must provide the list of accredited laboratories and nominated reporters to the Chief Executive Officer of the Federal Magistrates Court in addition to the Attorney-General, the Chief Executive Officer of the Family Court of Australia and the Registrar of the Family Court of Western Australia. As the Federal Magistrates Court exercises jurisdiction in parentage testing matters under Part IIA of the Principal Regulations, it is appropriate that the Chief Executive Officer of the Federal Magistrates Court is also provided with a copy of the list annually.

Item 14 removes an outdated reference to the Family Law Rules 1984 which appears in paragraph 67D(c) of the Principal Regulations. That regulation relates to applications for referral to arbitration. Revised Family Law Rules commenced in March 2004. This reference to the previous Rules is replaced with a more general reference to the applicable Rules of Court in order to also encompass the Federal Magistrates Court Rules. Subsection 4(1) of the Act defines `applicable Rules of Court' to include the related Federal Magistrates Rules and the standard rules of any other court.

Item 15 removes an outdated reference to the Family Law Rules 1984 which appears in subregulation 67N(3) of the Principal Regulations. That Regulation relates to the form of applications for subpoenas for arbitration. This is replaced with a more general reference to the applicable Rules of Court to ensure that the Federal Magistrates Court Rules are also covered. Subsection 4(1) of the Act defines `applicable Rules of Court' to include the related Federal Magistrates Rules and the standard rules of any other court.

Item 16 replaces Schedule 1, Form 2 which is a prescribed affidavit that donors of genetic material must complete prior to the taking of a bodily sample for the purpose of a parentage testing procedure under subregulation 21F(1). The additional requirements are:

•       a recent photograph of a donor of a bodily sample for the purposes of a parentage testing procedure will be required to be attached to the affidavit which is completed prior to the sample being taken by the sampler. The photograph attached to the affidavit will be required to be signed by the deponent of the affidavit and the witness to the affidavit and marked as attachment `A'. This will be in addition to the current requirement that a photograph be provided to the sampler for attaching to the sample by the sampler under paragraph 21F(1)(b). This means that the two photographs can be compared to assess whether the same person completed the affidavit and provided the bodily sample to the sampler.

•       a donor will be required to swear or affirm that they consent to the taking of a sample and the carrying out of testing procedures on that sample. Under Part 2 of Form 2 where an adult is swearing or affirming that they consent to the taking of a sample from a child, they will need to be a relevant person for the purposes of subsection 69Z(2) of the Act. That subsection of the Act provides that a parentage testing procedure must not be carried out in relation to a child under the order without the consent of the child's parent or guardian or a person who, under a specific issues order, is responsible for the child's long-term or day-to-day care, welfare and development. Part 2 of Form 2 also applies to an adult who is not capable of swearing or affirming the affidavit and the person swearing or affirming on their behalf will also be required to consent to the taking of a sample and the carrying out of testing procedures on that sample.

Item 17 updates the prescribed New South Wales (NSW) and Queensland laws in Schedule 8 to reflect changes to laws in those States. Schedule 8 prescribes laws of States and Territories for the definition of `family violence order' under subsection 60D(1) of the Act which is the definition that applies for the purposes of Part VII of the Act related to children.

The amendment replaces reference to specific sections of the NSW Crimes Act 1900 with a reference to Part 15A of that Act, as this Part includes additional sections. The NSW De Facto Relationships Act 1984 is no longer in force and the reference to this Act is replaced by a reference to Part 5 of its replacement Act, the NSW Property (Relationships) Act 1984.

The sections of the Queensland Domestic Violence (Family Protection) Act 1989 will be replaced with a reference to Part 3 of that Act, as this Part includes the sections currently referred to, plus other relevant sections. Section 66 of that Act is included to incorporate reference to orders that are varied or discharged on appeal.

Item 18 amends the reference to the South Australian (SA) Domestic Violence Act 1994 in item 4 of Schedule 8 to exclude new section 10A of that Act which deals with gambling orders. This excludes orders about gambling under the SA Problem Gambling Family Protection Orders Act 2004 which are not relevant for Schedule 8 which prescribes laws of States and Territories for the definition of `family violence order' under subsection 60D(1) of the Act which is the definition that applies for the purposes of Part VII of the Act related to children.

Item 19 amends the reference to the SA Summary Procedure Act 1921 in item 5 of Schedule 8 to exclude section 99AA of that Act. This excludes paedophile restraining orders. Such orders are not limited to family members and are not relevant for Schedule 8 which prescribes laws of States and Territories for the definition of `family violence order' under subsection 60D(1) of the Act which is the definition that applies for the purposes of Part VII of the Act related to children.

Item 20 inserts a reference to section 7 of the SA Youth Court Act 1993 which will be item 6A of Schedule 8. Schedule 8 prescribes laws of States and Territories for the definition of `family violence order' under subsection 60D(1) of the Act which is the definition that applies for the purposes of Part VII of the Act related to children. Section 7 of the SA Youth Court Act 1993 is relevant because it gives the Youth Court the same jurisdiction as the Magistrates Court to make a restraining order under the SA Summary Procedure Act 1921 or a domestic violence restraining order under the SA Domestic Violence Act 1994 where the person for or against whom protection is sought is a child or youth.

Item 21 amends the Tasmanian legislation in item 7 of Schedule 8 by replacing the sections of the Tasmanian Justices Act 1959 with a reference to Part XA in which the sections are contained. That Part also contains other relevant sections for the purposes of Schedule 8. Schedule 8 prescribes laws of States and Territories for the definition of `family violence order' under subsection 60D(1) of the Act which is the definition that applies for the purposes of Part VII of the Act related to children.

Item 22 amends the Victorian legislation in item 8 of Schedule 8 by adding references to some extra sections of the Victorian Crimes (Family Violence) Act 1987 which relate to intervention orders by consent and registration of interstate and New Zealand orders. Schedule 8 prescribes laws of States and Territories for the definition of `family violence order' under subsection 60D(1) of the Act which is the definition that applies for the purposes of Part VII of the Act related to children.


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