EXPLANATORY STATEMENT

Select Legislative Instrument 2007 No. 212

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW AMENDMENT REGULATIONS 2007 (No. 2)

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations prescribing all matters (including court fees) 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 amend the Family Law Regulations 1984 (the Principal Regulations) to add a schedule to prescribe the relevant State and Territory laws for a new paragraph 69ZX(4)(b) of the Act. Subsection 69ZX(4) ensures that the best interests of the child are paramount when a court is determining whether confidential communications should be disclosed in family law proceedings concerning children.

Details of the Regulations are as follows:

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2007 (No. 2).

Regulation 2 provides for the commencement of the Regulations on the commencement of subsection 69ZX(4) of the Family Law Act 1975.

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

Schedule 1 – Amendment

This amendment inserted a regulation 12CE and a new schedule into the Family Law Regulations 1984. The Schedule is entitled “Schedule 9A – Professional confidential relationship privilege – prescribed laws (regulation 12CE)”.

The Evidence Amendment (Journalists’ Privilege) Act 2007 allows the court to direct that evidence not be adduced in a proceeding if doing so could disclose the identity of a person who communicated in confidence with a journalist. The Evidence Amendment (Journalists’ Privilege) Act 2007 inserted a new subsection 69ZX(4) into the Family Law Act 1975. The new subsection is as follows;

69ZX(4) The court must not, in proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration, direct under:

(a) subsection 126B(1) of the Evidence Act 1995; or

(b) a law of a State or Territory specified in the regulations relating to professional confidential relationship privilege;

that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child

 

This subsection ensures that the best interests of the child are paramount when a court is determining whether confidential communications should be disclosed in family law proceedings concerning children. The new Schedule will prescribe the State and Territory laws for paragraph 69ZX(4)(b).

 

At this stage only NSW has enacted legislation relating to confidential relationship privilege but other jurisdictions may enact similar legislation in the future. The relevant NSW provision is contained in the Evidence Act 1995 (NSW).