Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW REGULATIONS (AMENDMENT) 1994 NO. 343

STATUTORY RULES 1994 No. 343

Issued by the Authority of the Attorney-General

Family Law Act 1975

Family Law Regulations (Amendment)

Regulation 125(1) of the Family Law Act 1975 (the Act) empowers the Governor-General to make regulations for the purposes of the Act.

The purpose of making an amendment to regulation 12D of the Family Law Regulations is to add Western Australia and Queensland to the list of prescribed states for the purposes of section 67(1A) of the Act.

This amendment was deemed necessary when it became apparent that certain children who were the subject of a custody order of the Family Court of Western Australia under the Family Court Act 1975 (WA Act) did not enjoy the protection of section 70A of the Act. The children in question are exnuptial children and Western Australia is the only state which has not referred power to the Commonwealth over such children.

Section 70A of the Act prevents the removal from Australia of a child who is the subject of a custody, guardianship or access order under the Act. The section enables the Australian Federal Police to put on their airport 'watch list' the names of children who are at risk of being removed illegally from the country. An order under the WA Act is not "an order made by a court in Australia" for the purposes of section 70A of the Act.

Section 67(1A) of the Act provides for the Rules of Court to make provision for the registration in the Family Court of Australia of a custody order made under the law of a prescribed state or territory. Regulation 12D lists those states and territories which are prescribed for the purposes of section 67(1A) of the Act. A custody order made under the WA Act could be registered under this section if Western Australia was a prescribed state. Ex-nuptial children in Western Australia would then enjoy the protection of section 70A of the Act.

Queensland is also to be included as a prescribed state in regulation 12D. Because Queensland has now referred its powers over ex-nuptial children to the Commonwealth, it should no longer be omitted from regulation 12D.