EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 259

 

Issued by the Authority of the Attorney-General

 

Family Law Act 1975

 

Family Law Amendment Regulations 2008 (No. 4)

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations 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 proposed Regulations is to update regulation 19 of, and Schedule 8 to, the Family Law Regulations 1984 (the Principal Regulations) to reflect various amendments to family violence legislation that have or will come into force in New South Wales, Victoria, Western Australia, the Australian Capital Territory and the Northern Territory.

 

Regulation 19 is a list of the prescribed laws of States and Territories which can operate concurrently with sections 68B, 68C, 114 and 114AA of the Act. Those sections relate to the personal protection of parties and/or their children.

 

Regulation 12BB provides that laws listed in Schedule 8 to the Principal Regulations are prescribed laws of States and Territories for the purpose of defining a ‘family violence order’ under the Act. The effect of prescribing these laws is that, among other things, Family Law Courts are required to explicitly consider these orders in determining the best interests of the child. It also invokes an obligation on parties to inform the court of the existence of these orders, resulting in a more effective response to family violence.

 

The Principal Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The proposed Regulations would commence in accordance with the provisions in the proposed Regulation 2.

 

Consultation on these regulations is unnecessary because they are of a minor and machinery nature and do not substantially alter existing arrangements. However, the relevant jurisdictions have been informed of the proposed Regulations.

 

Details of the Regulations are as follows:

 

 

Regulation 1 - Name of Regulations

 

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2008 (No. 4).

 

Regulation 2 – Commencement

 

Paragraph 2(a) provides that regulations 1, 2 and 3 and Schedule 1 commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

 

Paragraph 2(b) provides that Schedule 2 commences on 30 March 2009.

 

Paragraph 2(c) provides that if these Regulations are registered on or before the commencement of section 212 of the Family Violence Protection Act 2008 (Vic), Schedule 3 commences on the day after that section commences. However, if these Regulations are registered after the commencement of section 212 of the Family Violence Protection Act 2008 (Vic), Schedule 3 commences on the day after the Regulations are registered.

 

Regulation 3 - Amendment of the Family Law Regulations 1984

 

Regulation 3 provides that Schedules 1, 2 and 3 amend the Principal Regulations.

 

Schedule 1 – Amendments commencing on the day after registration

 

Item [1]: Paragraph 19(a)

 

This item replaces the existing reference to Part 15A of the Crimes Act 1900 (NSW) in paragraph 19(a) of the Principal Regulations with a reference to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

 

Part 15A of the Crimes Act 1900 (NSW) was repealed and replaced by the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which commenced on 10 March 2008.

Item [2]: Paragraph 19(d)

 

This item removes the existing reference to Divisions 1 and 2 of Part 9 of the Restraining Orders Act 1997 (WA) in paragraph 19(d) of the Principal Regulations.

 

The provisions of Part 9 of the Restraining Orders Act 1997 (WA) were transitional provisions that dealt with Part VII orders made under the Justices Act 1902 (WA) that were still in force at the time the Restraining Orders Act 1997 (WA) commenced. Part 9 has since been omitted under paragraph 7(4)(e) of the Reprints Act 1984 (WA). The Justices Act 1902 (WA) was repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA).

 

Item [3]: Paragraph 19(h)

 

The item replaces the existing reference to the Domestic Violence Act (NT) in paragraph 19(h) of the Principal Regulations with a reference to the Domestic and Family Violence Act 2007 (NT).

 

The Domestic Violence Act (NT) was repealed and replaced by the Domestic and Family Violence Act 2007 (NT), which commenced on 1 July 2008.

Item [4]: Paragraph 19(i)

 

This item inserts paragraph 19(i) into the Principal Regulations, which is a reference to the Domestic Violence Act 1995 (NI).

 

This item rectifies the omission of the Domestic Violence Act 1995 (NI) from the Principal Regulations. It also ensures that the Domestic Violence Act 1995 (NI) will be able to operate concurrently with sections 68B, 68C, 114 and 114AA of the Family Law Act 1975 (Cth).

Item [5]: Schedule 8, item 1, column 2

 

This item replaces the existing reference to the Crimes Act 1900 (NSW) at item 1 of the table in Schedule 8 to the Principal Regulations with a reference to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

 

This item amends the Principal Regulations for the same reasons as item [1] of Schedule 1 to the Regulations.

 

Item [6]: Schedule 8, item 13, column 2

 

This item replaces the existing reference to the Domestic Violence Act (NT) at item 13 of the table in Schedule 8 to the Principal Regulations with a reference to the Domestic and Family Violence Act 2007 (NT).

 

This item amends the Principal Regulations for the same reasons as item [3] of Schedule 1 to the Regulations.

 

Schedule 2 – Amendments commencing on 30 March 2009

 

Item [1]: Paragraph 19(g)

 

This item replaces the existing reference to the Domestic Violence and Protection Orders Act 2001 (ACT) in paragraph 19(g) of the Principal Regulations with a reference to the Domestic Violence and Protection Orders Act 2008 (ACT).

 

The Domestic Violence and Protection Orders Act 2001 (ACT) will be repealed and replaced by the Domestic Violence and Protection Orders Act 2008 (ACT), which commences on 30 March 2009.

 

Item [2]: Schedule 8, item 12, column 2

 

This item replaces the existing reference to the Domestic Violence and Protection Orders Act 2001 (ACT) at item 12 of the table in Schedule 8 to the Principal Regulations with a reference to the Domestic Violence and Protection Orders Act 2008 (ACT).

 

This item amends the Principal Regulations for the same reasons as item [1] of Schedule 2 to the Regulations.

 

Schedule 3 – Amendments commencing on the day after the commencement of section 212 of the Family Violence Protection Act 2008 (Vic) or on the day after registration

 

Item [1]: Paragraph 19(b)

 

This item replaces the existing reference to the Crimes (Family Violence) Act 1987 (Vic) in paragraph 19(b) of the Principal Regulations with a reference to the Family Violence Protection Act 2008 (Vic).

 

Section 212 of the Family Violence Protection Act 2008 (Vic) will repeal the Crimes (Family Violence) Act 1987 (Vic). Subsections 3(2) and (3) of the Family Violence Protection Act 2008 (Vic) provide that provisions other than sections 1, 3 and 224 will commence on a day to be proclaimed or in default of this on 1 October 2009.

 

Item [2]: Schedule 8, item 3, column 2

This item replaces the existing reference to the Crimes (Family Violence) Act 1987 (Vic) at item 3 of the table in Schedule 8 to the Principal Regulations with a reference to the Family Violence Protection Act 2008 (Vic).

 

This item amends the Principal Regulations for the same reasons as item [1] of Schedule 3 to the Regulations.