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Western Australia
Family Court Amendment Bill 2001
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Amendments about the
consequences of failure to comply
with orders and other obligations
4. Section 5 amended 3
5. Section 78A inserted 3
6. Section 86A inserted 4
7. Section 89 amended 5
8. Section 89A inserted 5
9. Section 99 amended 7
10. Section 103 amended 7
11. Section 104 amended 7
12. Division 13 inserted in Part 5 7
13. Section 220A inserted 28
14. Section 222A inserted 31
15. Heading to Part 10 replaced 32
16. Section 223 replaced 32
17. Section 224 amended 33
18. Section 225 amended 33
19. Section 226 amended 34
20. Section 227 amended 35
21. Section 228 replaced 36
22. Section 229 amended 37
23. Section 230 amended 37
24. Section 232 amended 37
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Family Court Amendment Bill 2001
Contents
25. Saving 37
26. Heading to Part 10 Division 3 replaced and section
233A inserted 38
27. Section 234 amended 38
28. Section 244 amended 39
Part 3 -- Amendments about de facto
relationships
29. Section 5 amended 40
30. Section 8 amended 40
31. Section 33 amended 41
32. Section 36 amended 41
33. Section 39 amended 42
34. Section 43 amended 42
35. Section 43A inserted 43
36. Section 46 amended 45
37. Section 47 amended 45
38. Section 48 amended 46
39. Division 3A inserted in Part 4 46
40. Section 61 amended 49
41. Section 62A inserted 50
42. Section 63 amended 50
43. Heading to Part 4 Division 4 deleted 50
44. Section 65 amended 50
45. Section 124 amended 51
46. Section 160 amended 51
47. Part 5A inserted 51
48. Section 235A inserted 83
49. Section 236 amended 84
50. Section 244 amended 85
51. Section 245 amended 86
52. Consequential and related amendments -- Schedule 1 87
Part 4 -- Other amendments
53. Section 44 amended 88
54. Section 79 amended 88
55. Section 88 amended 89
56. Section 113 amended 89
57. Section 118 amended 89
58. Section 123 amended 89
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Family Court Amendment Bill 2001
Contents
59. Section 128 amended 89
60. Subdivision 5A inserted in Part 5 Division 7 91
61. Section 131A inserted and transitional 92
62. Section 132 replaced and transitional 93
63. Section 144 amended 94
64. Section 149 amended 94
65. Section 152 amended 94
66. Section 155 amended 94
67. Section 214A inserted 95
68. Section 219A inserted 95
69. Section 236 amended 96
70. Section 240 amended 96
71. Section 243 amended 96
72. Section 243A inserted 98
73. Section 245 amended 99
74. References to "recognizance" changed to "bond" 99
75. Certain penalties increased 99
Schedule 1 -- Consequential and
related amendments 101
1. Administration Act 1903 amended 101
2. Stamp Act 1921 amended 104
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in committee)
Family Court Amendment Bill 2001
A Bill for
An Act to amend the Family Court Act 1997, the Administration Act
1903, and the Stamp Act 1921.
The Parliament of Western Australia enacts as follows:
page 1
Family Court Amendment Bill 2001
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Family Court Amendment
Act 2001.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. The Act amended
10 The amendments in this Act are to the Family Court Act 1997*,
unless otherwise specified.
[* Act No. 40 of 1997.
For subsequent amendments see 2000 Index to Legislation of
Western Australia Table 1, p. 149 and Act No. 43 of 2000.]
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Family Court Amendment Bill 2001
Amendments about the consequences of failure to comply with Part 2
orders and other obligations
s. 4
Part 2 -- Amendments about the consequences of
failure to comply with orders and other obligations
4. Section 5 amended
Section 5 is amended as follows:
5 (a) by inserting in the appropriate alphabetical position the
following definition --
"
"Child Support (Registration and Collection) Act"
means the Child Support (Registration and
10 Collection) Act 1988 of the Commonwealth as
adopted by the Child Support (Adoption of Laws)
Act 1990;
";
(b) in the definition of "family and child mediation" by
15 inserting after "mediation" --
" , conducted in accordance with the regulations, ";
(c) in the definition of "family and child mediator" by
deleting paragraph (a) and inserting the following
paragraph instead --
20 "
(a) a person employed or engaged by the Family
Court of Australia or the Court to provide
family and child mediation services;
".
25 5. Section 78A inserted
After section 78 the following section is inserted --
"
78A. Explanation by person advising or assisting in the
making of a parenting plan -- FLA s. 63DA
30 (1) If a person who is a family and child counsellor, a
family and child mediator or a legal practitioner gives
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Part 2 Amendments about the consequences of failure to comply with
orders and other obligations
s. 6
advice or assistance to people in connection with the
making by them of a parenting plan, the person must
explain to them, in language likely to be readily
understood by them --
5 (a) the obligations that the plan creates;
(b) the consequences that may follow if either of
them fails to comply with any of those
obligations; and
(c) the availability of programs to help people who
10 experience difficulties in complying with a
parenting plan.
(2) A court may cause to be prepared, and given to persons
who are making a parenting plan, a document setting
out particulars of the availability of programs to help
15 people who experience difficulties in complying with a
parenting plan.
".
6. Section 86A inserted
After section 86 the following section is inserted --
20 "
86A. Measures to promote the exercise of parental
responsibility -- FLA s. 65AA
(1) Measures designed, as stage 1 of a parenting
compliance regime, to improve communication
25 between separated parents and to educate parents about
their respective responsibilities in relation to their
children are contained in this Division (see section 89A).
(2) Remedial measures designed, as stage 2 of a parenting
compliance regime, to enable parents to resolve issues
30 of conflict about parenting and to help in the
negotiation of improved parenting are contained in
Division 13 Subdivision 2.
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orders and other obligations
s. 7
(3) Further measures designed, as stage 3 of a parenting
compliance regime, to ensure that, as a last resort, a
parent is dealt with for deliberate disregard of an order
made by a court are contained in Division 13
5 Subdivision 3.
".
7. Section 89 amended
Section 89 is amended by inserting after subsection (2) the
following subsection --
10 "
(3) If the application for the parenting order was made as a
result of the adjournment under section 205H(1)(c) of
proceedings under Division 13 Subdivision 2 --
(a) the court must hear and determine the
15 application as soon as practicable; and
(b) if the court makes a parenting order on the
application, the court may, if it thinks it is
appropriate to do so, dismiss the proceedings
under that Subdivision.
20 ".
8. Section 89A inserted
After section 89 the following section is inserted --
"
89A. Parenting orders: stage 1 of parenting compliance
25 regime -- FLA s. 65DA
(1) This section applies when a court makes a parenting
order.
(2) It is the duty of the court to include in the order
particulars of --
30 (a) the obligations that the order creates; and
(b) the consequences that may follow if a person
contravenes the order.
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s. 8
(3) If any of the persons to whom the order is directed is
not represented by a legal practitioner, it is also the
duty of the court to explain to the person, or to each of
the persons --
5 (a) the availability of programs to help people to
understand their responsibilities under
parenting orders; and
(b) the availability and use of location and recovery
orders to ensure that parenting orders are
10 complied with.
(4) The court may cause to be prepared, and given to
persons to whom a parenting order is directed, a
document setting out particulars of the matters
mentioned in subsection (3)(a) and (b).
15 (5) If a person to whom the order is directed is represented
by a legal practitioner, the court may request the
practitioner --
(a) to assist in explaining to the person the matters
mentioned in subsection (2)(a) and (b); and
20 (b) to explain to the person the matters mentioned
in subsection (3)(a) and (b).
(6) If a request is made by the court to a legal practitioner
under subsection (5)(a) or (b), it is the duty of the
practitioner to comply with the request.
25 (7) Failure to comply with a requirement of, or with a
request made under, this section does not affect the
validity of a parenting order.
(8) Any matter that is required by this section to be
included in a parenting order or any explanation that is
30 required by this section to be given to a person is to be
expressed in language that is likely to be readily
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orders and other obligations
s. 9
understood by the person to whom the order is directed
or the explanation is given.
".
9. Section 99 amended
5 Section 99(1)(c) and (d) are amended by deleting "section 226"
in both places where it occurs and inserting instead --
" Division 13 ".
10. Section 103 amended
Section 103(1)(b) and (c) are amended by deleting
10 "section 226" in both places where it occurs and inserting
instead --
" Division 13 ".
11. Section 104 amended
Section 104(1)(b) and (c) are amended by deleting
15 "section 226" in both places where it occurs and inserting
instead --
" Division 13 ".
12. Division 13 inserted in Part 5
After Part 5 Division 12 the following Division is inserted in
20 Part 5 --
"
Division 13 -- Consequences of failure to comply with
orders, and other obligations, that affect children
Subdivision 1 -- Preliminary
25 205A. Definitions -- FLA s. 70NB
In this Division --
"appropriate post-separation parenting program"
or "appropriate program", in relation to a
person, means a post-separation parenting program
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orders and other obligations
s. 12
that is available within a reasonable distance from
the person's place of residence or place of work;
"community service order" has the meaning given by
section 205M;
5 "contravened an order" has the meaning given by
section 205C;
"order under this Act affecting children", in relation
to a court, means --
(a) a parenting order;
10 (b) an injunction granted by a court --
(i) under section 235; or
(ii) under section 235A in so far as the
injunction is for the protection of a
child;
15 (c) an undertaking given to, and accepted by a
court in proceedings under this Act that
relate wholly or partly to, or to the making
of, a parenting order;
(d) a subpoena issued under the rules in
20 proceedings under this Act that relate wholly
or partly to a parenting order, being a
subpoena issued to a party to the
proceedings;
(e) a parenting plan registered in a court under
25 section 79;
(f) a bond entered into --
(i) under a parenting order;
(ii) under section 205L(5)(b); or
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s. 12
(iii) for the purposes of section 205Q(5),
and includes an order, injunction, plan or bond
that --
(g) is an order under this Act affecting children
5 made by another court because of
paragraph (a), (b), (e) or (f); and
(h) has been registered in the first-mentioned
court;
"post-separation parenting program" or "program"
10 has the same meaning as in section 70NB of the
Family Law Act;
"primary order" has the meaning given by
section 205G or 205L;
"reasonable excuse for contravening an order"
15 includes the meanings given by section 205E.
205B. Application of Division -- FLA s. 70NBA
Despite anything contained in any other provision of
this Division, this Division does not apply in respect of
a contravention, committed before this Division
20 commences, of an order under this Act affecting
children if a court made an order, in respect of that
contravention before this Division commences, under
this Act as previously in force.
205C. Meaning of "contravened an order" --
25 FLA s. 70NC
For the purposes of this Division, a person is to be
treated as having contravened an order under this Act
affecting children if, and only if --
(a) where the person is bound by the order, the
30 person has --
(i) intentionally failed to comply with the
order; or
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Part 2 Amendments about the consequences of failure to comply with
orders and other obligations
s. 12
(ii) made no reasonable attempt to comply
with the order;
or
(b) in any other case, the person has --
5 (i) intentionally prevented compliance with
the order by a person who is bound by
it; or
(ii) aided or abetted a contravention of the
order by a person who is bound by it.
10 205D. Requirements treated as included in certain
orders -- FLA s. 70ND
For the purposes of this Division --
(a) a residence order is to be treated as including a
requirement that persons act in accordance with
15 section 96 in relation to the order;
(b) a contact order is to be treated as including a
requirement that persons act in accordance with
section 97 in relation to the order; and
(c) a specific issues order to which section 98
20 applies is to be treated as including a
requirement that persons act in accordance with
that section in relation to the order.
205E. Meaning of "reasonable excuse for contravening an
order" -- FLA s. 70NE
25 (1) The circumstances in which a person may be treated as
having had, for the purposes of this Division, a
reasonable excuse for contravening an order under this
Act affecting children include, but are not limited to,
the circumstances set out in subsections (2), (4), (5)
30 and (6).
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(2) A person (the "respondent") is to be treated as having
a reasonable excuse for contravening an order under
this Act affecting children if --
(a) the respondent contravened the order because,
5 or substantially because, the respondent did not,
at the time of the contravention, understand the
obligations imposed by the order on the person
who was bound by it; and
(b) the court is satisfied that the respondent ought
10 to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse
for contravening an order under this Act for the reason
referred to in subsection (2)(a), it is the duty of the
court to explain to the person, in language likely to be
15 readily understood by the person, the obligations
imposed on the person by the order and the
consequences that may follow if the person again
contravenes the order.
(4) A person (the "respondent") is to be treated as having
20 a reasonable excuse for contravening a residence order
in a way that resulted in a child not living with a person
in whose favour the order was made if --
(a) the respondent believed on reasonable grounds
that the actions constituting the contravention
25 were necessary to protect the health or safety of
a person (including the respondent or the child);
and
(b) the period during which, because of the
contravention, the child did not live with the
30 person in whose favour the order was made was
not longer than was necessary to protect the
health or safety of the person referred to in
paragraph (a).
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s. 12
(5) A person (the "respondent") is to be treated as having
a reasonable excuse for contravening a contact order in
a way that resulted in a person and a child being
deprived of contact they were supposed to have had
5 under the order if --
(a) the respondent believed on reasonable grounds
that the deprivation of contact was necessary to
protect the health or safety of a person
(including the respondent or the child); and
10 (b) the deprivation of contact was not longer than
was necessary to protect the health or safety of
the person referred to in paragraph (a).
(6) A person (the "respondent") is to be treated as having
had a reasonable excuse for contravening a specific
15 issues order by acting contrary to section 98 if --
(a) the respondent believed on reasonable grounds
that the action constituting the contravention
was necessary to protect the health or safety of
a person (including the respondent or the child);
20 and
(b) the period during which, because of that action,
a person in whose favour the order was made
was hindered in or prevented from discharging
responsibilities under the order was not for
25 longer than was necessary to protect the health
or safety of the person referred to in paragraph (a).
205F. Standard of proof of reasonable excuse --
FLA s. 70NEA
The standard of proof to be applied in determining, in
30 proceedings under this Division, whether a person who
contravened an order under this Act affecting children
had a reasonable excuse for the contravention is proof
on the balance of probabilities.
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Amendments about the consequences of failure to comply with Part 2
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s. 12
Subdivision 2 -- Powers of court where a person
contravenes an order under this Act affecting children:
stage 2 of parenting compliance regime
205G. Application of Subdivision -- FLA s. 70NF
5 (1) Subject to subsection (2), this Subdivision applies if --
(a) an order under this Act affecting children (the
"primary order") has been made, whether
before or after the commencement of this
Division;
10 (b) a court is satisfied that a person has, whether
before or after that commencement, committed
a contravention (the "current contravention")
of the primary order;
(c) the person does not prove that the person had a
15 reasonable excuse for the current contravention;
and
(d) either of the following applies --
(i) a court has not previously determined
that the person has, without reasonable
20 excuse, contravened the primary order;
(ii) a court has previously determined that
the person has, without reasonable
excuse, contravened the primary order
but the court dealing with the current
25 contravention is satisfied that it is more
appropriate for that contravention to be
dealt with under this Subdivision,
and, if the primary order is an order for the
maintenance of a child, this Subdivision applies
30 irrespective of the period since the current
contravention occurred.
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Part 2 Amendments about the consequences of failure to comply with
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s. 12
(2) This Subdivision does not apply if, in circumstances
mentioned in subsection (1)(d)(i), the court dealing
with the current contravention is satisfied that the
person who contravened the primary order has behaved
5 in a way that showed a serious disregard for the
person's obligations under the primary order.
205H. Powers of court -- FLA s. 70NG
(1) If this Subdivision applies, a court may do any or all of
the following --
10 (a) make an order in respect of the person who
committed the current contravention, or
(subject to subsection (2)) in respect of both
that person and another specified person, as
follows --
15 (i) directing the person or each person to
attend before the provider of a specified
appropriate post-separation parenting
program so that the provider can make
an initial assessment as to the suitability
20 of the person concerned to attend such a
program;
(ii) if a person so attending before a
provider is assessed by the provider to
be suitable to attend such a program or a
25 part of such a program and the provider
nominates a particular appropriate
program for the person to attend,
directing the person to attend that
program or that part of that program;
30 (b) make a further parenting order that
compensates for contact forgone as a result of
the current contravention;
(c) adjourn the proceedings to allow either or both
of the parties to the primary order to apply for a
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orders and other obligations
s. 12
further parenting order under Part 5 Division 6
that discharges, varies or suspends the primary
order or revives some or all of an earlier
parenting order.
5 (2) In deciding whether to adjourn the proceedings as
mentioned in subsection (1)(c), the court must have
regard to the following --
(a) whether the primary order was made by
consent;
10 (b) whether either or both of the parties to the
proceedings in which the primary order was
made were represented in those proceedings by
a legal practitioner;
(c) the length of the period between the making of
15 the primary order and the occurrence of the
current contravention;
(d) any other matters that the court thinks relevant.
(3) The court must not make an order under
subsection (1)(a) directed to a person other than the
20 person who committed the current contravention
unless --
(a) the person brought the proceedings before the
court in relation to the current contravention or
is otherwise a party to those proceedings; and
25 (b) the court is satisfied that it is appropriate to
direct the order to the person because of the
connection between the current contravention
and the carrying out by the person of the
person's parental responsibilities in relation to
30 the child or children to whom the primary order
relates.
(4) If the court makes an order under subsection (1)(a) that
a person is to attend before the provider of a program
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orders and other obligations
s. 12
for assessment, or is to attend a program, the court
must cause the provider of the program to be notified,
in accordance with the rules, of the making of the
order.
5 205I. Duties of provider of program -- FLA s. 70NH
(1) The provider of a program before whom a person
attends under an order made under
section 205H(1)(a)(i) must inform the court, in
accordance with the rules, if the person is unsuitable to
10 attend any program.
(2) If a person is ordered to attend a program or a part of a
program, the provider of the program must inform the
court, in accordance with the rules, if --
(a) the person fails to attend the program or the
15 part of the program; or
(b) the provider considers that the person is
unsuitable to take any further part in the
program or part of the program.
205J. Evidence -- FLA s. 70NI
20 Evidence of anything said, or of any admission made,
by a person attending before the provider of a program
for assessment, or attending a program, is not
admissible --
(a) in a court (whether of a kind referred to in
25 section 8(a) or (b) or otherwise); or
(b) in any proceedings before a person authorised
by a law of the Commonwealth, or of a State or
Territory, or by the consent of the parties, to
hear evidence.
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205K. Court may make further orders in relation to
attendance at program -- FLA s. 70NIA
If it appears to a court that a person has not attended a
program or a part of a program that the person was
5 ordered to attend, the court may, by order, give further
directions to the person with respect to the person
attending the program.
Subdivision 3 -- Court to take action in respect of person
who contravenes an order: stage 3 of parenting compliance
10 regime
205L. Powers of court -- FLA s. 70NJ
(1) Subject to subsection (2), this Subdivision applies if --
(a) an order under this Act affecting children (the
"primary order") has been made, whether
15 before or after the commencement of this
Division;
(b) a court is satisfied that a person has, whether
before or after that commencement, committed
a contravention (the "current contravention")
20 of the primary order;
(c) the person does not prove that the person had a
reasonable excuse for the current contravention;
and
(d) either of the following applies --
25 (i) a court has not previously determined
that the person has, without reasonable
excuse, contravened the primary order
but the court dealing with the current
contravention is satisfied that the person
30 has behaved in a way that showed a
serious disregard of the person's
obligations under the primary order;
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s. 12
(ii) a court has previously determined that
the person has, without reasonable
excuse, contravened the primary order.
(2) This Subdivision does not apply if a court dealing with
5 the current contravention is satisfied that it is more
appropriate for that contravention to be dealt with
under Subdivision 2.
(3) If this Subdivision applies, a court must make, in
respect of the person who committed the current
10 contravention, the order or orders available to be made
under subsection (5) that it considers to be appropriate
in the circumstances.
(4) This section applies whether the primary order was
made, and whether the current contravention occurred,
15 before or after the commencement of this Division.
(5) The orders that are available to be made by a court
are --
(a) a community service order of a kind referred to
in, and in accordance with, section 205M;
20 (b) an order requiring the person to enter into a
bond in accordance with section 205O;
(c) if the person has contravened a parenting order,
an order varying the order so contravened,
subject to subsection (7);
25 (d) to fine the person --
(i) in the case of a natural person, not more
than $6 600; or
(ii) in the case of a body corporate, not
more than $33 000;
30 or
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s. 12
(e) subject to subsection (8), to impose a sentence
of imprisonment on the person in accordance
with section 205Q.
(6) If a court varies or discharges under section 205N a
5 community service order made under subsection (5)(a),
the court may give any directions as to the effect of the
variation or discharge that the court considers
appropriate.
(7) When making an order under subsection (5)(c) varying
10 a parenting order, the court, in addition to regarding,
under section 90, the best interests of the child as the
paramount consideration, must, if any of the following
considerations is relevant, take that consideration into
account --
15 (a) the person who contravened the parenting order
did so after having attended, after having
refused or failed to attend, or after having been
found to be unsuitable to take any further part
in, a post-separation parenting program or a
20 part of such a program;
(b) there was no appropriate post-separation
parenting program that the person who
contravened the parenting order could attend;
(c) because of the behaviour of the person who
25 contravened the parenting order, it was not
appropriate, in the court's opinion, for the
person to attend a post-separation parenting
program, or a part of such a program;
(d) the parenting order was a compensatory
30 parenting order made under section 205H(1)(b)
after the person had contravened a previous
order under this Act affecting children.
(8) The court must not make an order imposing a sentence
of imprisonment on a person under this section in
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respect of a contravention of a child maintenance order
made under this Act unless the court is satisfied that
the contravention was intentional or fraudulent.
(9) The court must not make an order imposing a sentence
5 of imprisonment on a person under this section in
respect of --
(a) a contravention of an administrative assessment
of child support made under the Child Support
(Assessment) Act;
10 (b) a breach of a child support agreement made
under that Act; or
(c) a contravention of an order made by a court
under Part 7 Division 4 of that Act for a
departure from such an assessment (including
15 such an order that contains matters mentioned
in section 141 of that Act).
(10) An order under this section may be expressed to take
effect immediately, at the end of a specified period or
on the occurrence of a specified event.
20 (11) When a court makes an order under this section, the
court may make any other orders that the court
considers necessary to ensure compliance with the
order that was contravened.
205M. When court is empowered to impose a community
25 service order -- FLA s. 70NK
(1) In this section --
"Sentencing Act" means the Sentencing Act 1995.
(2) A community service order imposed on a person under
section 205L(5)(a) can be one of the following
30 kinds --
(a) a community based order, within the meaning
of the Sentencing Act, imposed in accordance
with the provisions of Part 9 of that Act;
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(b) an intensive supervision order, within the
meaning of the Sentencing Act, imposed in
accordance with the provisions of Part 10 of
that Act.
5 (3) For the purposes of this Act --
(a) a reference in Part 9 or 10 of the Sentencing
Act to an offence includes a reference to the
contravention of an order;
(b) a reference in Part 9 or 10 of the Sentencing
10 Act to an offender is a reference to a person
who contravened an order; and
(c) a reference in Part 9 or 10 of the Sentencing
Act to an offender's criminal behaviour is a
reference to the behaviour of a person who
15 contravened an order when contravening that
order.
(4) A person who, under the Sentencing Act --
(a) is the chief executive officer; or
(b) is a community corrections officer,
20 has, for the purposes of this Act, the same functions as
the person has under Part 9 or 10 of the Sentencing
Act, unless a court orders otherwise.
(5) Where, under section 205L(5)(a), a court proposes to
impose a community service order of a kind referred to
25 in this section on a person, the court must, before doing
so, explain or cause to be explained to the person, in
language likely to be readily understood by the
person --
(a) the purpose and effect of the proposed
30 community service order;
(b) the requirements, obligations and conditions
applicable to that person under the proposed
community service order;
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(c) the consequences that may follow if the person
fails to comply with the proposed community
service order or with any requirement,
obligation or condition applicable to that person
5 under the proposed community service order;
and
(d) how the proposed community service order
may be discharged or varied.
(6) If, in the application of Part 9 or 10 of the Sentencing
10 Act for the purposes of this Act, there is any
inconsistency between the provisions of the Sentencing
Act and this Act, the provisions of this Act prevail.
205N. Variation and discharge of community service
orders -- FLA s. 70NL
15 If --
(a) the Court makes a community service order
under section 205L(5)(a) then the Court can
vary or discharge the order; or
(b) a court other than the Court makes a
20 community service order under
section 205L(5)(a) then that court or the Court
can vary or discharge the order.
205O. Bonds -- FLA s. 70NM
(1) This section provides for bonds that a court may
25 require a person to enter into under section 205L(5)(b).
(2) A bond must be for a specified period of up to 2 years.
(3) A bond may be --
(a) with or without surety; and
(b) with or without security.
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(4) The conditions that may be imposed on a person by a
bond include, but are not limited to, conditions of the
following kinds --
(a) a condition requiring the person to attend upon
5 a family and child counsellor, or a welfare
officer, for counselling;
(b) a condition requiring the person to be of good
behaviour.
(5) Where a court proposes to require a person to enter into
10 a bond it must, before making the requirement, explain
to the person, in language likely to be readily
understood by the person --
(a) the purpose and effect of the proposed
requirement; and
15 (b) the consequences that may follow if the
person --
(i) fails to enter into the bond; or
(ii) having entered into the bond, fails to act
in accordance with the bond.
20 205P. Procedure for enforcing community service orders
or bonds -- FLA s. 70NN
(1) This section applies where a court (the "court") makes
a community service order under section 205L(5)(a) in
respect of a person, or an order under paragraph
25 205L(5)(b) requiring a person to enter into a bond in
accordance with section 205O.
(2) Sections 62(3) and 69(4) of the Sentencing Act 1995 do
not apply for the purposes of this Act.
(3) If an information is laid before a magistrate, whether
30 before or after the end of the period for which the
community service order or the bond is to operate, or
operated, alleging that the person has, without
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s. 12
reasonable excuse, contravened the order or any
requirement made in relation to the order, or the bond,
the magistrate may --
(a) issue a summons directing the person to appear,
5 on a date, at a time and at a place fixed in the
summons, before the court; or
(b) if the information is laid on oath and the
magistrate thinks that proceedings against the
person by summons might not be effective,
10 issue a warrant for the arrest of the person.
(4) If --
(a) the person is served with a summons issued
under subsection (3); and
(b) the person fails to attend before the court as
15 required by the summons,
the court may, on proof of the service of the summons,
issue a warrant for the arrest of the person.
(5) If --
(a) the person is arrested under a warrant issued
20 under subsection (3), (4) or (7); and
(b) the court is not sitting at the time of the arrest,
the person is to be brought before a magistrate.
(6) The magistrate may --
(a) order that the person be released from custody
25 upon the person entering into a bond (with or
without surety or security) that the person will
attend before the court on a date, at a time and
at a place specified by the magistrate; or
(b) direct that the person be kept in custody in
30 accordance with the warrant.
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(7) If --
(a) on entering into a bond under subsection (6),
the person is released under an order made by a
magistrate under subsection (6)(a); and
5 (b) the person fails to attend before the court as
required by the bond,
the court may, on proof of the entering into of the
bond, issue a warrant for the arrest of the person.
(8) If --
10 (a) in accordance with this section, the person is
brought before the court; and
(b) the court (whether or not constituted by the
Judge or magistrate who made the community
service order or required the bond to be entered
15 into in accordance with section 205O) is
satisfied that the person has, without reasonable
excuse, failed to comply with the order or bond,
the court may take action under subsection (9).
(9) The court may --
20 (a) without prejudice to the continuance of the
community service order or the bond entered
into in accordance with section 205O, impose a
fine not exceeding $1 100 on the person; or
(b) revoke the community service order or the bond
25 entered into in accordance with section 205O
and, subject to subsection (10), deal with the
person, for the contravention in respect of
which the community service order was made
or the bond was entered into, in any manner in
30 which the person could have been dealt with for
the contravention if --
(i) the community service order had not
been made or the bond had not been
entered into; and
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s. 12
(ii) the person was before the court under
section 205L in respect of the
contravention.
(10) In dealing with the person as mentioned in
5 subsection (9)(b), the court must, in addition to any
other matters that it considers should be taken into
account, take into account --
(a) the fact that the community service order was
made or the bond was entered into;
10 (b) anything done under the community service
order or pursuant to the bond; and
(c) any fine imposed, and any other order made,
for or in respect of the contravention.
(11) A warrant issued under subsection (3), (4) or (7) in
15 relation to the person authorises --
(a) the arrest of the person;
(b) the bringing of the person before the court as
soon as practicable after the person is arrested;
and
20 (c) the detention of the person in custody until the
person is released by order of the court, or in
accordance with subsection (6).
205Q. Sentences of imprisonment -- FLA s. 70NO
(1) A sentence of imprisonment imposed on a person
25 under paragraph 205L(5)(e) must be expressed to be --
(a) for a specified period of 12 months or less; or
(b) for a period ending when the person --
(i) complies with the order concerned; or
(ii) has been imprisoned under the sentence
30 for 12 months or such lesser period as is
specified by the court,
whichever happens first.
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(2) A court must not sentence a person to imprisonment
under section 205L(5)(e) unless the court is satisfied
that, in all the circumstances of the case, it would not
be appropriate for the court to deal with the
5 contravention under any of the other paragraphs of
section 205L(5).
(3) If a court sentences a person to imprisonment under
section 205L(5)(e), the court must --
(a) state the reasons why it is satisfied as
10 mentioned in subsection (2); and
(b) cause those reasons to be entered in the records
of the court.
(4) The failure of a court to comply with subsection (3)
does not invalidate a sentence.
15 (5) A court, when sentencing a person to imprisonment
under paragraph 205L(5)(e), may, if it considers it
appropriate to do so, direct that the person be released
upon the person entering into a bond described in
subsection (6) after the person has served a specified
20 part of the term of imprisonment.
(6) A bond for the purposes of subsection (5) is a bond
(with or without surety or security) that the person will
be of good behaviour for a specified period of up to
2 years.
25 (7) A court that has sentenced a person to imprisonment
for a period referred to in subsection (1)(b) may order
the release of the person if it is satisfied that the person
will, if released, comply with the order concerned.
(8) To avoid doubt, the serving by a person of a period of
30 imprisonment under a sentence imposed on the person
under section 205L(5)(e) for failure to make a payment
under a child maintenance order does not affect the
person's liability to make the payment.
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s. 13
205R. Relationship between Subdivision and other laws --
FLA s. 70NP
(1) This section applies where an act or omission by a
person --
5 (a) constitutes a contravention of an order under
this Act affecting children; and
(b) is also an offence under a written law
(an "offence").
(2) If a person is prosecuted in respect of an offence then a
10 court in which proceedings brought under section 205L
in respect of the contravention of the order must
either --
(a) adjourn those proceedings until the prosecution
has been completed; or
15 (b) dismiss those proceedings.
(3) A person may be prosecuted for, and convicted of, an
offence.
(4) Nothing in this section renders a person liable to be
punished twice in respect of the same act or omission.
20 205S. Subdivision does not affect enforcement of child
maintenance orders etc. -- FLA s. 70NR
Nothing in this Subdivision is intended to limit the
operation of section 220.
".
25 13. Section 220A inserted
After section 220 the following section is inserted --
"
220A. Rules relating to enforcement -- FLA s. 109A
(1) The power of the Judges, or a majority of them, under
30 section 244 to make rules extends to making rules for
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s. 13
or in relation to, or for or in relation to anything
incidental to, the enforcement by a court of --
(a) an order under this Act affecting children
(within the meaning of Part 5 Division 13);
5 (b) an order under this Act (within the meaning of
section 223);
(c) the Child Support (Registration and Collection)
Act; or
(d) the Child Support (Assessment) Act.
10 (2) Without limiting the generality of subsection (1), the
rules may make provision for and in relation to --
(a) requiring a person to do any one or more of the
following --
(i) to attend before a court or Registrar and
15 answer questions or produce documents;
(ii) to deliver a document or article to, or to
a person specified by, a court or
Registrar;
(iii) to transfer the ownership of specified
20 property to another person;
(iv) to give another person possession
(including exclusive possession) of
specified property;
(v) to deliver a specified chattel to another
25 person;
(vi) to do, or abstain from doing, any other
act;
(b) prescribing the practice and procedure to be
followed for a hearing before a court or
30 Registrar for the purpose of giving effect to a
requirement made under paragraph (a)(i);
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s. 13
(c) taking any one or more of the actions
mentioned in subsection (3) in respect of a
person who --
(i) fails to pay the amount of a fine
5 imposed under Part 5 Division 13 or
under Part 10 Division 2;
(ii) fails to pay an amount payable under a
bond entered into under Part 5
Division 13 or under Part 10 Division 2;
10 (iii) fails to pay under section 123 an amount
of maintenance for a person who is 18
or more years of age;
(iv) fails to pay an amount payable under a
registered maintenance liability under
15 the Child Support (Registration and
Collection) Act or the Child Support
(Assessment) Act; or
(v) fails to comply with a requirement made
as referred to in paragraph (a);
20 and
(d) delegating to a Registrar all or any of the
powers conferred on a court by rules referred to
in this section.
(3) Subject to subsection (4), the actions in respect of a
25 person the taking of which may be provided for by
rules as mentioned in subsection (2)(c) are as
follows --
(a) the issue of a warrant for the arrest of the
person;
30 (b) the issue of a warrant of execution against
property of the person;
(c) the making of an order authorising the taking of
possession of property of the person;
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s. 14
(d) the making of an order for the sequestration,
and if necessary the sale, of property of the
person;
(e) the making of an order for the attachment, by
5 garnishment or attachment of earnings, of debts
owed to the person;
(f) the appointment of a receiver of property of the
person.
(4) A reference in subsection (2)(c) to a failure to pay an
10 amount is a reference to any such failure irrespective of
the length of the period during which the failure has
continued, and includes a reference to a failure to pay
part of an amount.
(5) In this section --
15 "property" means real or personal property;
"Registrar" means --
(a) in relation to the Court, the Principal
Registrar, a Registrar or a Deputy Registrar;
and
20 (b) in relation to any other court, the clerk of
petty sessions of that court.
".
14. Section 222A inserted
After section 222 the following section is inserted in Part 9 --
25 "
222A. People not to be imprisoned for failure to comply
with certain orders -- FLA s.
107
(1) A person must not be imprisoned or otherwise placed
30 in custody because of a contravention of an order made
under this Act for the payment of money.
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s. 15
(2) This section does not affect the operation of Part 5
Division 13 or the operation of Part 10 Division 2.
".
15. Heading to Part 10 replaced
5 The heading to Part 10 is deleted and the following heading is
inserted instead --
"
Part 10 -- Sanctions for failure to comply with
orders, and other obligations, that do not
10 affect children
".
16. Section 223 replaced
Section 223 is repealed and the following section is inserted
instead --
15 "
223. Interpretation -- FLA s. 112AA
In this Part --
"maintenance order", in relation to a court, means an
order made by a court --
20 (a) under Part 5 Division 8 Subdivision 2; or
(b) under this Act that deals with the
maintenance of a person;
"order under this Act", in relation to a court,
means --
25 (a) an order (however described) made under
this Act by a court (other than a parenting
order);
(b) an injunction granted by a court under
section 235A except in so far as the
30 injunction is for the protection of a child;
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s. 17
(c) an undertaking given to, and accepted by, a
court in proceedings under this Act other
than proceedings that relate wholly or partly
to, or to the making of, a parenting order;
5 (d) a subpoena issued under the rules in
proceedings under this Act other than a
subpoena issued in, and so issued to a party
to, proceedings that relate wholly or partly
to, or to the making of, a parenting order;
10 (e) a bond --
(i) entered into under an order of a court
under this Act other than an order under
Part 5 Division 13; or
(ii) entered into, for the purposes of
15 section 227(5), on the direction of the
court,
and includes an order, injunction or bond that --
(f) is an order under this Act made by another
court because of paragraph (a), (b) or (e);
20 and
(g) has been registered in the first-mentioned
court in accordance with the regulations.
".
17. Section 224 amended
25 Section 224(2) is repealed.
18. Section 225 amended
(1) Section 225(1) is amended by deleting "this section" and
inserting instead --
" subsection (2) ".
30 (2) Section 225(3), (4) and (5) are repealed.
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s. 19
19. Section 226 amended
(1) Section 226(1), (2), (3) and (4) are repealed and the following
subsections are inserted instead --
"
5 (1) If --
(a) a court is satisfied that a person has
contravened an order under this Act; and
(b) the person does not prove on the balance of
probabilities that the person had a reasonable
10 excuse for contravening the order,
then the court may make an order for the imposing, in
respect of the person, of one or more of the sanctions
available to be imposed under subsection (3) that it
considers to be appropriate in the circumstances.
15 (2) The power given to a court under subsection (1) in
respect of a contravention of a maintenance order
applies even if the order has been complied with before
the matter of the contravention comes before the court.
(3) The sanctions that are available to be imposed by a
20 court are --
(a) to require the person to enter into a bond in
accordance with section 228;
(b) to impose a sentence on the person, or make an
order directed to the person, in accordance with
25 section 229;
(c) to fine the person --
(i) in the case of a natural person, not more
than $6 600; or
(ii) in the case of a body corporate, not
30 more than $33 000;
or
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s. 20
(d) to impose a sentence of imprisonment on the
person in accordance with section 227.
(4) A court must not impose a sentence of imprisonment
on a person under subsection (3)(d) in respect of the
5 contravention of a maintenance order unless the court
is satisfied that the contravention was intentional or
fraudulent.
".
(2) Section 226(5) is amended by deleting "or (2)".
10 (3) Section 226(6) is amended by deleting "or (2)".
(4) Section 226(7) is repealed.
20. Section 227 amended
(1) Section 227(1) is amended by deleting "(a)" and inserting
instead --
15 " (d) ".
(2) Section 227(2) is amended by deleting "(a)" and inserting
instead --
" (d) ".
(3) Section 227(3) is amended by deleting "(a)" and inserting
20 instead --
" (d) ".
(4) Section 227(5) and (6) are repealed and the following
subsections are inserted instead --
"
25 (5) A court, when sentencing a person to imprisonment
under section 226(3)(d) may, if it considers it
appropriate to do so, direct that the person be released
upon the person entering into a bond described in
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Part 2 Amendments about the consequences of failure to comply with
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s. 21
subsection (6) after the person has served a specified
part of the term of imprisonment.
(6) A bond for the purposes of subsection (5) is a bond
(with or without surety or security) that the person will
5 be of good behaviour for a specified period of up to
2 years.
".
(5) After section 227(7) the following subsection is inserted --
"
10 (8) To avoid doubt, the serving by a person of a period of
imprisonment under a sentence imposed on the person
under section 226(3)(d) for failure to make a payment
under a child maintenance order does not affect the
person's liability to make the payment.
15 ".
21. Section 228 replaced
Section 228 is repealed and the following section is inserted
instead --
"
20 228. Bonds -- FLA s. 112AF
(1) This section provides for bonds that a court may
require a person to enter into under section 226(3)(a).
(2) A bond must for a specified period of up to 2 years.
(3) A bond may be --
25 (a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a
bond include a condition requiring the person to be of
good behaviour.
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s. 22
(5) Where a court proposes to require a person to enter into
a bond it must, before making the requirement, explain
to the person, in language likely to be readily
understood by the person --
5 (a) the purpose and effect of the proposed
requirement; and
(b) the consequences that may follow if the
person --
(i) fails to enter into the bond; or
10 (ii) having entered into the bond, fails to act
in accordance with the bond.
".
22. Section 229 amended
(1) Section 229(2) is amended by deleting "(d)" and inserting
15 instead --
" (b) ".
(2) Section 229(5) is amended by deleting "(d)" and inserting
instead --
" (b) ".
20 23. Section 230 amended
Section 230(1) is amended by deleting "(d)" and inserting
instead --
" (b) ".
24. Section 232 amended
25 Section 232(5) is repealed.
25. Saving
The amendments effected by this Part do not affect any act or
thing done by a court under Part 10 Division 2 of the Family
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Part 2 Amendments about the consequences of failure to comply with
orders and other obligations
s. 26
Court Act 1997 before the commencement of this Part, and any
such act or thing continues to have effect according to its terms
after that commencement as if those amendments had not been
made.
5 26. Heading to Part 10 Division 3 replaced and section 233A
inserted
The heading to Part 10 Division 3 is deleted and the following
heading and section are inserted --
"
10 Part 10A -- Contempt of court
233A. Interpretation
In this Part --
"contravene an order" has the same meaning as in
section 224;
15 "maintenance order" has the same meaning as in
section 223;
"order under this Act" has the same meaning as in
section 223.
".
20 27. Section 234 amended
(1) Section 234(1) is amended by deleting "This" and inserting
instead --
" Subject to subsection (1a), this ".
(2) After section 234(1) the following subsection is inserted --
25 "
(1a) This section does not apply to a contempt that
constitutes a contravention of a maintenance order if
the order has been complied with before the matter of
the contravention comes before the court.
30 ".
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(3) After section 234(7) the following subsection is inserted --
"
(8) To avoid doubt, the serving by a person of a period of
imprisonment as a result of a contempt of a court
5 arising out of a failure by the person to make a
payment in respect of the maintenance of another
person does not affect the first-mentioned person's
liability to make the payment.
".
10 28. Section 244 amended
Section 244(3)(n) is deleted.
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Family Court Amendment Bill 2001
Part 3 Amendments about de facto relationships
s. 29
Part 3 -- Amendments about de facto relationships
29. Section 5 amended
(1) Section 5 is amended by inserting in the appropriate
alphabetical positions the following definitions --
5 "
(FLA s. 4(1))
"arbitrator" means a person who meets the prescribed
requirements for an arbitrator;
(FLA s. 4(1))
10 "Part 5A proceedings" means proceedings under
Part 5A for orders with respect to the maintenance
of a de facto partner or to the property of de facto
partners, but does not include any proceedings
specified in the regulations for the purposes of this
15 definition;
(FLA s. 4(1))
"private arbitration" means arbitration other than
arbitration carried out as a result of an order made
under section 60A;
20 ".
(2) Section 5 is amended in the definition of "step-parent" by
inserting after "married to" --
" , or in a de facto relationship with, ".
30. Section 8 amended
25 Section 8 is amended by inserting --
(a) after "5" --
" , 5A "; and
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Family Court Amendment Bill 2001
Amendments about de facto relationships Part 3
s. 31
(b) after "10" --
" , 10A ".
31. Section 33 amended
Section 33(3) is amended as follows:
5 (a) after paragraph (c) by deleting "or";
(b) after paragraph (d) by deleting the comma and
inserting --
"
; or
10 (e) an order setting aside a registered award under
section 60E,
".
32. Section 36 amended
(1) After section 36(4) the following subsection is inserted --
15 "
(4a) Without limiting subsection (1), the Court has
jurisdiction under Part 5A to --
(a) make declarations and to revoke declarations
that it has made;
20 (b) hear and decide all other matters under that
Part,
and in particular the Court has jurisdiction to hear and
decide the following --
(c) applications for orders with respect to property;
25 (d) applications for orders for the provision of
maintenance.
".
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Part 3 Amendments about de facto relationships
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(2) After section 36(7) the following subsection is inserted --
"
(8) Non-federal jurisdiction conferred on the Court is
exclusive of any other court except as provided under
5 section 39 or where an appeal lies to the Supreme
Court.
".
33. Section 39 amended
Section 39 is amended by inserting after "section 37" --
10 " , where applicable ".
34. Section 43 amended
(1) Section 43(1) is repealed and the following subsection is
inserted instead --
"
15 (1) This section applies --
(a) if --
(i) proceedings for a parenting order (other
than a child maintenance order) or an
order relating to the welfare of a child
20 are instituted in a court of summary
jurisdiction ("the court"); and
(ii) the respondent, in answer to the
application by which the proceedings
were instituted, seeks an order different
25 from that sought in the application;
or
(b) if --
(i) Part 5A proceedings are instituted in, or
transferred to, a court of summary
30 jurisdiction that is of a class or
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Amendments about de facto relationships Part 3
s. 35
description prescribed in the regulations
for the purposes of this paragraph
("the court") in relation to property of
a total value exceeding $300 000, or
5 such other amount, if any, as is
prescribed in the regulations; and
(ii) the respondent, in answer to the
application by which the proceedings
are instituted, seeks an order different
10 from that sought in the application.
".
(2) After section 43(4) the following subsections are inserted --
"
(4a) A reference in subsection (1)(b) to proceedings in
15 respect of property does not include a reference to
proceedings with respect to arrears of maintenance.
(4b) In determining the value of any property for the
purposes of subsection (1)(b), any mortgage, lien,
charge or other security over the property is to be
20 disregarded.
".
35. Section 43A inserted
After section 43 the following section is inserted --
"
25 43A. Transfer of proceedings from a court of summary
jurisdiction in other cases
(1) If proceedings are instituted in a court of summary
jurisdiction, other than a court prescribed for the
purposes of section 43(1)(b) ("the court"), in relation
30 to property of a total value exceeding $20 000 and the
respondent, in answer to the application by which the
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Part 3 Amendments about de facto relationships
s. 35
proceedings are instituted, seeks an order different
from that sought in the application --
(a) the court must, before proceeding to hear and
determine the proceedings, inform the parties
5 that, unless each of them consents to the court
hearing and determining the proceedings, the
court is required to transfer the proceedings to
the Court; and
(b) unless the parties consent to the court hearing
10 and determining the proceedings, the court
must transfer the proceedings to the Court.
(2) A reference in subsection (1) to proceedings in respect
of property does not include a reference to proceedings
with respect to arrears of maintenance.
15 (3) In determining the value of any property for the
purposes of subsection (1), any mortgage, lien, charge
or other security over the property is to be disregarded.
(4) If proceedings referred to in subsection (1) are
instituted in the court and the parties consent to the
20 proceedings being heard and determined by that court,
a party is not entitled, without the leave of the court,
subsequently to object to the proceedings being so
heard and determined but, where the court
subsequently gives leave to a party to object to the
25 proceedings being so heard and determined, the court is
to transfer the proceedings to the Court.
(5) Where proceedings referred to in subsection (1) are
before it, the court may transfer the proceedings of its
own motion, notwithstanding that the parties would be
30 willing for the court to hear and determine the
proceedings.
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(6) Before transferring proceedings under this section, the
court may make such orders as it considers necessary
pending the disposal of the proceedings by the Court.
(7) Where proceedings are transferred or removed to a
5 court in pursuance of this section, that court shall
proceed as if the proceedings had been originally
instituted in that court.
(8) Failure by the court to comply with this section does
not invalidate any order of the court in the proceedings.
10 ".
36. Section 46 amended
(1) Section 46 is amended by deleting "Before" and inserting
instead --
" (1) Subject to subsection (2), before ".
15 (2) At the end of section 46 the following subsection is inserted --
"
(2) In addition to the orders referred to in subsection (1), a
court of summary jurisdiction prescribed for the
purposes of section 43(1)(b) may --
20 (a) make such interim orders under Part 5A
Division 2; or
(b) make such interim orders, or grant such
injunctions, under section 235A,
as it considers necessary.
25 ".
37. Section 47 amended
Section 47 is amended in the definition of "primary dispute
resolution methods" as follows:
(a) after paragraph (b) by deleting "and";
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Part 3 Amendments about de facto relationships
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(b) after paragraph (c) by deleting the full stop and inserting
instead --
"
; and
5 (d) arbitration services provided by arbitrators.
".
38. Section 48 amended
Section 48(a) is amended by inserting after "mediation" --
" , arbitration ".
10 39. Division 3A inserted in Part 4
After section 60 the following Division and Division heading is
inserted --
"
Division 3A -- Arbitration
15 60A. Court may refer proceedings to arbitration --
FLA s. 19D
(1) In any Part 5A proceedings the court may, subject to
the rules, make an order referring the proceedings, or
any part of them, or any matter arising in them, to an
20 arbitrator for arbitration in accordance with the rules.
(2) However, a court may only make an order under
subsection (1) with the consent of all the parties to the
proceedings.
(3) Where a court makes an order under subsection (1), it
25 may, if necessary, adjourn the proceedings and may
make such additional orders as it thinks appropriate to
facilitate the effective conduct of the arbitration.
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(4) Where a court makes an order under subsection (1), the
arbitration must be carried out by the arbitrator in
accordance with the rules.
(5) A party to an award in an arbitration carried out as a
5 result of an order under this section may register the
award, in accordance with the regulations, in the court
that made that order and the award, when so registered,
has effect as if it were a decree made by that court.
60B. Private arbitration -- FLA s. 19E
10 (1) A court may, on application by a party to the private
arbitration of a dispute, make such orders as the court
thinks appropriate to facilitate the effective conduct of
the arbitration.
(2) A party to an award made in a private arbitration of a
15 dispute may register the award, in accordance with the
regulations, in a court and the award, when so
registered, has effect as if it were a decree made by that
court.
(3) In this section --
20 "dispute" means --
(a) Part 5A proceedings;
(b) any part of such proceedings;
(c) any matter arising in such proceedings; or
(d) a dispute about a matter with respect to
25 which such proceedings could be instituted.
60C. Referral by arbitrator of questions of law to a
court -- FLA s. 19EA and 19EB
(1) At any time before making an award in section 60A
arbitration or private arbitration, the arbitrator may
30 refer for determination by a court a question of law
arising in relation to the arbitration.
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Part 3 Amendments about de facto relationships
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(2) The arbitrator may do so --
(a) on the arbitrator's own initiative; or
(b) at the request of one or more of the parties to
the arbitration if the arbitrator considers it
5 appropriate to do so.
(3) The arbitrator must not make an award in the
arbitration before a court has either --
(a) determined the question of law; or
(b) remitted the matter to the arbitrator having
10 found that no question of law arises.
60D. Review of awards by a court -- FLA s. 19F
and 19FA
(1) A party to a registered award made in section 60A
arbitration or private arbitration may apply to a court
15 for review of the award on questions of law.
(2) On a review of an award under this section, a court
may --
(a) determine all questions of law arising in
relation to the arbitration; and
20 (b) make such decrees as it thinks appropriate,
including a decree affirming, reversing or
varying the award.
60E. Setting aside awards -- courts -- FLA s. 19G
and 19GA
25 If an award made in section 60A arbitration or private
arbitration, or an agreement made as a result of such
arbitration, is registered in a court, a court may make a
decree affirming, reversing or varying the award or
agreement if it is satisfied that --
30 (a) the award or agreement was obtained by fraud
(including non-disclosure of a material matter);
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(b) the award or agreement is void, voidable or
unenforceable;
(c) in the circumstances that have arisen since the
award or agreement was made it is
5 impracticable for some or all of it to be carried
out; or
(d) the arbitration was affected by bias, or there
was a lack of procedural fairness in the way in
which the arbitration process, as agreed
10 between the parties and the arbitrator, was
conducted.
60F. Fees for arbitration -- FLA s. 19H
(1) An arbitrator conducting section 60A arbitration or
private arbitration may charge the parties to the
15 arbitration fees for conducting it.
(2) The arbitrator must give written information about
those fees to the parties before the arbitration starts.
Division 4 -- Miscellaneous
".
20 40. Section 61 amended
(1) Section 61(1)(a) is amended by inserting after "mediation" --
" or arbitration ".
(2) Section 61(2) is amended by inserting after "mediation" --
" and arbitration ".
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Part 3 Amendments about de facto relationships
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41. Section 62A inserted
After section 62 the following section is inserted --
"
62A. Oath or affirmation by arbitrator -- FLA s. 19L
5 An arbitrator must, before performing any function
under this Act of an arbitrator, make before a person
authorised to take affidavits in this State, an oath or
affirmation in accordance with the prescribed form.
".
10 42. Section 63 amended
Section 63 is amended as follows:
(a) by inserting after "mediator" in the first place where it
occurs --
" and an arbitrator ";
15 (b) by inserting after "mediator" in the second place where
it occurs --
" or arbitrator ".
43. Heading to Part 4 Division 4 deleted
The Heading to Part 4 Division 4 is deleted.
20 44. Section 65 amended
After section 65(2) the following subsection is inserted --
"
(3) An arbitrator may, in accordance with any relevant
regulations, advertise at the Court's registry the
25 arbitration services the arbitrator provides.
".
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Amendments about de facto relationships Part 3
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45. Section 124 amended
Section 124(3)(b) is amended by inserting after "to" --
" , or de facto relationship with, ".
46. Section 160 amended
5 Section 160(1) is amended as follows:
(a) after paragraph (c) by deleting "or";
(b) after paragraph (d) by deleting the full stop and
inserting --
"
10 ; or
(e) an arbitrator.
".
47. Part 5A inserted
After Part 5 the following Part is inserted --
15 "
Part 5A -- De facto relationships
Division 1 -- Introductory
205T. Interpretation
In this Part --
20 "child", of a de facto relationship, includes --
(a) a biological child of both of the de facto
partners born before the commencement of
the de facto relationship;
(b) a child adopted since the commencement of
25 the de facto relationship by the de facto
partners or by either of them with the
consent of the other; or
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Part 3 Amendments about de facto relationships
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(c) a child of a de facto partner whose de facto
partner is presumed or proved to be the other
parent of the child under a Commonwealth,
State or Territory law,
5 and includes a child of a de facto relationship that
has ended;
(FLA s. 4(1))
"financial agreement" means a financial agreement
within the meaning of section 205ZN, 205ZO or
10 205ZP;
(FLA s. 4(1))
"financial matters", in relation to de facto partners,
means matters with respect to --
(a) the maintenance of one of the de facto
15 partners;
(b) the property of those partners or either of
them; or
(c) the maintenance of children of the de facto
partners;
20 "former financial agreement" means an agreement
made before the commencement of this Part
between de facto partners with respect to any of
the matters mentioned in sections 205ZN(2)(a) or
(b), 205ZO(2)(a) or (b) or 205ZP(2)(a) or (b), or
25 matters incidental or ancillary to those matters;
(FLA s. 4(1))
"income tested pension, allowance or benefit" means
a pension, allowance or benefit prescribed, or
included in a class of pensions, allowances or
30 benefits prescribed, for the purposes of this
definition;
(FLA s. 4(1))
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"property", in relation to de facto partners, or either of
them, means property to which those parties are, or
that party is, as the case may be, entitled, whether
in possession or reversion.
5 205U. Application of Part generally
(1) This Part applies to de facto relationships.
(2) However, this Part does not apply to a de facto
relationship that ended before the commencement of
this Part.
10 (3) This Part does not authorise anything that would
otherwise be unlawful.
205V. Right to certain civil proceedings limited
A de facto partner who is, or was, eligible to apply for
an order with respect to property under Division 2 may
15 not apply to the Supreme Court in its equitable
jurisdiction for relief in respect of that property.
Division 2 -- Property adjustment orders and
maintenance orders
Subdivision 1 -- Introductory
20 205W. This Division does not apply to certain matters
covered by binding financial agreements or former
financial agreements -- FLA s. 71A
(1) This Division does not apply to --
(a) financial matters to which a financial
25 agreement that is binding on the parties to the
agreement applies; or
(b) financial resources to which a financial
agreement that is binding on the parties to the
agreement applies.
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Part 3 Amendments about de facto relationships
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(2) This Division does not apply to --
(a) financial matters to which a former financial
agreement that is binding on the parties to the
agreement applies; or
5 (b) financial resources to which a former financial
agreement that is binding on the parties to the
agreement applies.
205X. People to whom this Part applies -- connection
with WA
10 Despite section 36(5), before making an order under
this Division a court must be satisfied --
(a) that one or both of the parties to the application
were resident in Western Australia on the day
on which the application was made; and
15 (b) that --
(i) both parties have resided in Western
Australia for at least one third of the
duration of their de facto relationship; or
(ii) substantial contributions of the kind
20 referred to in section 205ZG(4)(a), (b)
or (c) have been made in the State by
the applicant.
205Y. Court not otherwise limited by connection with WA
referred to in section 205X
25 Where a court is satisfied as to the matters specified in
section 205X(a) and (b), it may make an order under
this Division by reason of facts and circumstances even
if those facts and circumstances, or some of them, took
place before the day on which the application was
30 made or outside the State.
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205Z. Where court may make order under this Division
(1) A court may make an order in relation to a de facto
relationship only if satisfied --
(a) there has been a de facto relationship between
5 the partners for at least 2 years;
(b) there is a child of the de facto relationship who
has not yet attained the age of 18 years and
failure to make the order would result in serious
injustice to the partner caring or responsible for
10 the child; or
(c) the de facto partner who applies for the order
made substantial contributions of a kind
mentioned in section 205ZG(4)(a), (b) or (c)
and failure to make the order would result in
15 serious injustice to the partner.
(2) In deciding whether there has been a de facto
relationship between the partners for at least 2 years,
the court must consider whether there was any break in
the continuity of the relationship and, if so, the length
20 of the break and the extent of the breakdown in the
relationship.
(3) Subsection (2) does not limit the matters the court may
consider.
205ZA. Declaration of interests in property -- FLA s. 78
25 (1) In a proceeding between de facto partners with respect
to existing title or rights in respect of property, a court
may declare the title or rights, if any, that a partner has
in respect of the property.
(2) Where a court makes a declaration under
30 subsection (1), it may make consequential orders to
give effect to the declaration, including orders as to
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Part 3 Amendments about de facto relationships
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sale or partition and interim or permanent orders as to
possession.
(3) A declaration or order under this section is binding on
the de facto partners but not on anyone else.
5 Subdivision 2 -- Alteration of property interests, and
maintenance
205ZB. Applications, and notifications to spouses
(1) A de facto partner whose de facto relationship has
ended may apply for an order under this Division in
10 relation to the relationship only if the application is
made within one year ("the application period") after
the relationship ended.
(2) However, the court may grant a de facto partner leave
to apply after the application period if satisfied that
15 hardship would be caused to a de facto partner if leave
were not granted.
(3) If a de facto partner who is a party to an application
under this Division has a spouse, that person is to give
that spouse notification of the application in
20 accordance with the rules.
205ZC. Right of de facto partner to maintenance --
FLA s. 72
A de facto partner is liable to maintain the other
de facto partner, to the extent that the first-mentioned
25 partner is reasonably able to do so, if, and only if, that
other party is unable to support herself or himself
adequately whether --
(a) by reason of having the care and control of a
child of the de facto relationship who has not
30 attained the age of 18 years;
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(b) by reason of age or physical or mental
incapacity for appropriate gainful employment;
or
(c) for any other adequate reason,
5 having regard to any relevant matter referred to in
section 205ZD.
205ZD. Maintenance orders -- FLA s. 75
(1) A court may make such order as it considers proper for
the maintenance of a de facto partner.
10 (2) In exercising jurisdiction under this section, the court
must take into account only the matters referred to in
subsection (3).
(3) The matters to be taken into account are --
(a) the age and state of health of each of the
15 de facto partners;
(b) the income, property and financial resources of
each of the de facto partners and the physical
and mental capacity of each of them for
appropriate gainful employment;
20 (c) whether either de facto partner has the care or
control of a child of the de facto relationship
who has not attained the age of 18 years;
(d) commitments of each of the de facto partners
that are necessary to enable the partner to
25 support --
(i) himself or herself; and
(ii) a child or another person that the party
has a duty to maintain;
(e) the responsibilities of either party to support
30 any other person;
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(f) subject to subsection (4), the eligibility of either
party for a pension, allowance or benefit
under --
(i) any law of the Commonwealth, of a
5 State or Territory or of another country;
or
(ii) any superannuation fund or scheme,
whether the fund or scheme was
established, or operates, within or
10 outside Australia,
and the rate of any such pension, allowance or
benefit being paid to either party;
(g) a standard of living that in all the circumstances
is reasonable;
15 (h) the extent to which the payment of maintenance
to the party whose maintenance is under
consideration would increase the earning
capacity of that party by enabling that party to
undertake a course of education or training or
20 to establish himself or herself in a business or
otherwise to obtain an adequate income;
(i) the extent to which the party whose
maintenance is under consideration has
contributed to the income, earning capacity,
25 property and financial resources of the other
party;
(j) the duration of the de facto relationship and the
extent to which it has affected the earning
capacity of the party whose maintenance is
30 under consideration;
(k) the need to protect a party who wishes to
continue that party's role as a parent;
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(l) if either party is cohabiting with another
person, the financial circumstances relating to
the cohabitation;
(m) the terms of any order made or proposed to be
5 made under section 205ZG in relation to the
property of the parties;
(n) any child support under the Child Support
(Assessment) Act that a de facto partner has
provided, is to provide, or might be liable to
10 provide in the future, for a child of the de facto
relationship;
(o) any fact or circumstance which, in the opinion
of the court, the justice of the case requires to
be taken into account; and
15 (p) the terms of any financial agreement or former
financial agreement that is binding on the
parties.
(4) In exercising its jurisdiction under this section, a court
must disregard any entitlement of the de facto partner
20 whose maintenance is under consideration to an
income tested pension, allowance or benefit.
205ZE. Urgent de facto partner maintenance cases --
FLA s. 77
Where, in proceedings with respect to the maintenance
25 of a de facto partner, it appears to the court that the
partner is in immediate need of financial assistance, but
it is not practicable in the circumstances to determine
immediately what order, if any, should be made, the
court may order the payment, pending the disposal of
30 the proceedings, of such periodic sum or other sums as
the court considers reasonable.
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205ZF. Specifications in orders of payments etc. for de facto
maintenance purposes -- FLA s. 77A
(1) Where --
(a) a court makes an order under this Act (whether
5 or not the order is made in proceedings in
relation to the maintenance of a de facto
partner, is made by consent or varies an earlier
order), and the order has the effect of
requiring --
10 (i) payment of a lump sum, whether in one
amount or by instalments; or
(ii) the transfer or settlement of property;
and
(b) the purpose, or one of the purposes, of the
15 payment, transfer or settlement is to make
provision for the maintenance of a de facto
partner,
the court must --
(c) express the order to be an order to which this
20 section applies; and
(d) specify the portion of the payment, or the value
of the portion of the property, attributable to the
provision of maintenance for the partner.
(2) Where --
25 (a) a court makes an order of a kind referred to in
subsection (1)(a); and
(b) the order --
(i) is not expressed to be an order to which
this section applies; or
30 (ii) is expressed to be an order to which this
section applies, but does not comply
with subsection (1)(d),
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any payment, transfer or settlement of a kind referred
to in subsection (1)(a), that the order has the effect of
requiring, is to be taken not to make provision for the
maintenance of a de facto partner to the relevant
5 de facto relationship.
205ZG. Alteration of property interests -- FLA s. 79
(1) In proceedings with respect to the property of de facto
partners, or either of them, the court may make such
order as it considers appropriate altering the interests of
10 the parties in the property, including an order for a
settlement of property in substitution for any interest in
the property and including an order requiring either or
both of the partners to make, for the benefit of either or
both of the partners or a child of the de facto
15 relationship, such settlement or transfer of property as
the court determines.
(2) An order made under subsection (1) in proceedings
with respect to the property of de facto partners, or
either of them may, after the death of a partner to the
20 proceedings, be enforced on behalf of, or against, as
the case may be, the estate of the deceased party.
(3) The court must not make an order under this section
unless it is satisfied that, in all the circumstances, it is
just and equitable to make the order.
25 (4) In considering what order (if any) should be made
under this section in proceedings with respect to any
property of de facto partners, or either of them, the
court must take into account --
(a) the financial contribution made directly or
30 indirectly by or on behalf of a de facto partner
to the de facto relationship or a child of the
de facto relationship to the acquisition,
conservation or improvement of any of the
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property of the de facto partners, or either of
them, or otherwise in relation to any of that
last-mentioned property, whether or not that
last-mentioned property has, since the making
5 of the contribution, ceased to be the property of
the de facto partners or either of them;
(b) the contribution (other than a financial
contribution) made directly or indirectly by or
on behalf of a de facto partner or a child of the
10 de facto relationship to the acquisition,
conservation or improvement of any of the
property of the de facto partners or either of
them, or otherwise in relation to any of that
last-mentioned property, whether or not that
15 last-mentioned property has, since the making
of the contribution, ceased to be the property of
the de facto partners or either of them;
(c) the contribution made by a de facto partner to
the welfare of the family constituted by the
20 de facto partners and any children of the
de facto partners, including any contribution
made in the capacity of homemaker or parent;
(d) the effect of any proposed order upon the
earning capacity of either de facto partner;
25 (e) the matters referred to in section 205ZD(3) so
far as they are relevant;
(f) any other order made under this Act affecting a
de facto partner or a child of the de facto
relationship; and
30 (g) any child support under the Child Support
(Assessment) Act that a de facto partner has
provided, is to provide, or might be liable to
provide in the future, for a child of the de facto
relationship.
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(5) Without limiting the power of any court to grant an
adjournment in proceedings under this Act, where, in
proceedings with respect to the property of the de facto
partners, or either of them, a court is of the opinion --
5 (a) that there is likely to be a significant change in
the financial circumstances of the de facto
partners, or either of them and that, having
regard to the time when that change is likely to
take place, it is reasonable to adjourn the
10 proceedings; and
(b) that an order that the court could make with
respect to the property of the de facto partners,
or either of them if that significant change in
financial circumstances occurs is more likely to
15 do justice as between the de facto partners than
an order that the court could make immediately
with respect to the property of the de facto
partners, or either of them,
the court may, if so requested by either de facto
20 partner, adjourn the proceedings until such time, before
the expiration of a period specified by the court, as that
de facto partner applies for the proceedings to be
determined, but nothing in this subsection requires the
court to adjourn any proceedings in any particular
25 circumstances.
(6) Where a court proposes to adjourn proceedings as
provided by subsection (5), the court may, before so
adjourning the proceedings, make such interim order or
orders or such other order or orders (if any) as it
30 considers appropriate with respect to any of the
property of the de facto partners or of either of them.
(7) The court may, in forming an opinion for the purposes
of subsection (5) as to whether there is likely to be a
significant change in the financial circumstances of
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either or both of the de facto partners, have regard to
any change in the financial circumstances of a de facto
partner that may occur by reason that the partner --
(a) is a contributor to a superannuation fund or
5 scheme, or participates in any scheme or
arrangement that is in the nature of a
superannuation scheme; or
(b) may become entitled to property as the result of
the exercise in his or her favour, by the trustee
10 of a discretionary trust, of a power to distribute
trust property,
but nothing in this subsection is to be taken to limit the
circumstances in which the court may form the opinion
that there is likely to be a significant change in the
15 financial circumstances of a de facto partner.
(8) Where, before proceedings with respect to the property
of de facto partners, or either of them are completed,
either party to the proceedings dies --
(a) the proceedings may be continued by or
20 against, as the case may be, the legal personal
representative of the deceased party and the
applicable rules may make provision in relation
to the substitution of the legal personal
representative as a party to the proceedings;
25 (b) if the court is of the opinion --
(i) that it would have made an order with
respect to property if the deceased party
had not died; and
(ii) that it is still appropriate to make an
30 order with respect to property,
the court may make such order as it considers
appropriate with respect to any of the property
of the de facto partners, or either of them; and
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(c) an order made by the court pursuant to
paragraph (b) may be enforced on behalf of, or
against, as the case may be, the estate of the
deceased party.
5 (9) A court must not make an order under this section in
proceedings with respect to the property of de facto
partners, or either of them (other than an order until
further order or an order made with the consent of all
the parties to the proceedings) unless --
10 (a) the parties to the proceedings have attended a
conference in relation to the matter to which the
proceedings relate with the Principal Registrar,
a Registrar or a Deputy Registrar;
(b) the court is satisfied that, having regard to the
15 need to make an order urgently, or to any other
special circumstance, it is appropriate to make
the order notwithstanding that the parties to the
proceedings have not attended a conference as
mentioned in paragraph (a); or
20 (c) the court is satisfied that it is not practicable to
require the parties to the proceedings to attend a
conference as mentioned in paragraph (a).
205ZH. Setting aside of orders altering property interests --
FLA s. 79A
25 (1) Where, on application by a person affected by an order
made by a court under section 205ZG in proceedings
with respect to the property of de facto partners, or
either of them, the court is satisfied that --
(a) there has been a miscarriage of justice by
30 reason of fraud, duress, suppression of evidence
(including failure to disclose relevant
information), the giving of false evidence or
any other circumstance;
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(b) in the circumstances that have arisen since the
order was made it is impracticable for the order
to be carried out or impracticable for a part of
the order to be carried out;
5 (c) a person has defaulted in carrying out an
obligation imposed on the person by the order
and, in the circumstances that have arisen as a
result of that default, it is just and equitable to
vary the order or to set the order aside and
10 make another order in substitution for the order;
or
(d) in the circumstances that have arisen since the
making of the order, being circumstances of an
exceptional nature relating to the care, welfare
15 and development of a child of the de facto
relationship, the child or, where the applicant
has caring responsibility for the child (within
the meaning of subsection (3)), the applicant,
will suffer hardship if the court does not vary
20 the order or set the order aside and make
another order in substitution for the order,
the court may, in its discretion, vary the order or set the
order aside and, if it considers appropriate, make
another order under section 205ZG in substitution for
25 the order so set aside.
(2) A court may, on application by a person affected by an
order made by a court under section 205ZG in
proceedings with respect to the property of de facto
partners, or either of them, and with the consent of all
30 the parties to the proceedings in which the order was
made, vary the order or set the order aside and, if it
considers appropriate, make another order under
section 205ZG in substitution for the order so set aside.
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(3) For the purposes of subsection (1)(d), a person has
caring responsibility for a child if --
(a) the person is a parent of the child with whom
the child lives;
5 (b) the person has a residence order in relation to
the child; or
(c) the person has a specific issues order in relation
to the child under which the person is
responsible for the child's long-term or
10 day-to-day care, welfare and development.
(4) An order varied or made under subsection (1) or (2)
may, after the death of a party to the proceedings in
which the order was so varied or made, be enforced on
behalf of, or against, as the case may be, the estate of
15 the deceased party.
(5) Where, before proceedings under this section in
relation to an order made under section 205ZG are
completed, either party to the proceedings dies --
(a) the proceedings may be continued by or
20 against, as the case may be, the legal personal
representative of the deceased party and the
rules may make provision in relation to the
substitution of the legal personal representative
as a party to the proceedings;
25 (b) if the court is of the opinion --
(i) that it would have exercised its powers
under subsection (1) or (2) in relation to
the order if the deceased party had not
died; and
30 (ii) that it is still appropriate to exercise its
powers under subsection (1) or (2) in
relation to the order,
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the court may vary the order, set the order
aside, or set the order aside and make another
order under section 205ZG in substitution for
the order so set aside; and
5 (c) an order varied or made by the court pursuant
to paragraph (b) may be enforced on behalf of,
or against, as the case may be, the estate of the
deceased party.
(6) In the exercise of its powers under subsection (1), (2)
10 or (5), a court is to have regard to the interests of, and
shall make any order proper for the protection of, a
bona fide purchaser or other person interested.
205ZI. General powers of court -- FLA s. 80
(1) The court, in exercising its powers under this Division,
15 may do any or all of the following --
(a) order payment of a lump sum, whether in one
amount or by instalments;
(b) order payment of a weekly, monthly, yearly or
other periodic sum;
20 (c) order that a specified transfer or settlement of
property be made by way of maintenance for a
de facto partner;
(d) order that payment of any sum ordered to be
paid be wholly or partly secured in such
25 manner as the court directs;
(e) order that any necessary deed or instrument be
executed and that such documents of title be
produced or such other things be done as are
necessary to enable an order to be carried out
30 effectively or to provide security for the due
performance of an order;
(f) appoint or remove trustees;
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(g) order that payments be made direct to a de facto
partner, to a trustee to be appointed or into
court or to a public authority for the benefit of
the de facto partner;
5 (h) make a permanent order, an order pending the
disposal of proceedings or an order for a fixed
term or for a life or during joint lives or until
further order;
(i) impose terms and conditions;
10 (j) make an order by consent;
(k) make any other order (whether or not of the
same nature as those mentioned in the
preceding paragraphs), which it thinks it is
necessary to make to do justice;
15 (l) subject to this Act and the rules, make an order
under this Division at any time.
(2) The making of an order of a kind referred to in
subsection (1)(c), or of any other order under this
Division, in relation to the maintenance of a de facto
20 partner does not prevent a court from making a
subsequent order in relation to the maintenance of the
partner.
(3) The rules may make provision with respect to the
making of orders under this Division in relation to the
25 maintenance of de facto partners (whether as to their
form or otherwise) for the purpose of facilitating their
enforcement and the collection of maintenance payable
under them.
205ZJ. Duty of court to end financial relations of de facto
30 partners -- FLA s. 81
In considering what order to make in a proceeding
under this Division, other than under section 205ZA, a
court must, as far as practicable, make such orders as
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will finally determine the financial relationships
between de facto partners who are no longer in a
de facto relationship and avoid further proceedings
between them.
5 205ZK. Cessation of de facto maintenance orders --
FLA s. 82
(1) An order with respect to the maintenance of a de facto
partner ceases to have effect upon the death of the
partner or the person liable to make payments under the
10 order.
(2) Nothing in this section affects the recovery of arrears
due under an order at the time when the order ceased to
have effect.
(3) An order with respect to the maintenance of a de facto
15 partner ceases to have effect on the marriage of the
person unless in special circumstances a court
otherwise orders.
(4) Where a marriage referred to in subsection (3) takes
place, it is the duty of the person for whose benefit the
20 order was made to inform without delay the person
liable to make payments under the order of the date of
the marriage.
(5) Any money paid in respect of a period after the event
referred to in subsection (3) may be recovered in a
25 court.
205ZL. Modification of de facto maintenance orders --
FLA s. 83
(1) In proceedings with respect to the maintenance of a
de facto partner, if there is in force an order with
30 respect to the maintenance of that person by the
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s. 47
de facto partner of that person made by a court, the
court may, by order --
(a) discharge the order if there is any just cause for
so doing;
5 (b) suspend its operation wholly or in part and
either until further order or until a fixed time or
the happening of a future event;
(c) revive wholly or in part an order suspended
under paragraph (b); or
10 (d) subject to subsection (2), vary the order --
(i) so as to increase or decrease any amount
ordered to be paid; or
(ii) in any other manner.
(2) A court must not make an order increasing or
15 decreasing an amount ordered to be paid by an order
unless it is satisfied --
(a) that, since the order was made or last varied --
(i) the circumstances of a person for whose
benefit the order was made have so
20 changed;
(ii) the circumstances of the person liable to
make payments under the order have so
changed; or
(iii) in the case of an order that operates in
25 favour of, or is binding on, a legal
personal representative, the
circumstances of the estate are such,
as to justify doing so;
(b) that, since the order was made, or last varied,
30 the cost of living has changed to such an extent
as to justify its so doing (this is expanded on in
subsections (3) and (4));
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(c) in a case where the order was made by consent,
that the amount ordered to be paid is not proper
or adequate (this is expanded on in
subsection (5)); or
5 (d) that material facts were withheld from the court
that made the order or from a court that varied
the order or material evidence previously given
before such a court was false.
(3) In satisfying itself for the purposes of subsection (2)(b),
10 a court must have regard to any changes that have
occurred in the Consumer Price Index published by the
Australian Statistician.
(4) A court must not, in considering the variation of an
order, have regard to a change in the cost of living
15 unless at least 12 months have elapsed since the order
was made or was last varied having regard to a change
in the cost of living.
(5) In satisfying itself for the purposes of subsection (2)(c),
a court must have regard to any payments, and any
20 transfer or settlement of property, previously made by a
de facto partner to --
(a) the other de facto partner; or
(b) any other person for the benefit of the other
de facto partner.
25 (6) An order decreasing the amount of a periodic sum
payable under an order or discharging an order may be
expressed to be retrospective to such date as the court
considers appropriate.
(7) Where, as provided by subsection (6), an order
30 decreasing the amount of a periodic sum payable under
an order is expressed to be retrospective to a specified
date, any moneys paid under the second-mentioned
order since the specified date, being moneys that would
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Amendments about de facto relationships Part 3
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not have been required to be paid under the
second-mentioned order as varied by the
first-mentioned order, may be recovered in a court.
(8) Where, as provided by subsection (6), an order
5 discharging an order is expressed to be retrospective to
a specified date, any moneys paid under the
second-mentioned order since the specified date may
be recovered in a court.
(9) For the purposes of this section, the court must have
10 regard to sections 205ZC and 205ZD.
(10) The discharge of an order does not affect the recovery
of arrears due under the order at the time as at which
the discharge takes effect.
Division 3 -- Financial agreements
15 205ZM. Definition -- FLA s. 90A
In this Division --
"dealt with" includes the meaning given by
section 205ZR(2).
205ZN. Financial agreements before beginning a de facto
20 relationship -- FLA s. 90B
(1) If --
(a) people who are contemplating entering into a
de facto relationship with each other make a
written agreement with respect to any of the
25 matters mentioned in subsection (2);
(b) at the time of the making of the agreement, no
other agreement (whether made under this
section or section 205ZO or 205ZP) is in force
between the parties with respect to any of those
30 matters; and
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(c) the agreement is expressed to be made under
this section,
the agreement is a financial agreement.
(2) The matters referred to in subsection (1)(a) are the
5 following --
(a) how, in the event of the breakdown of the
de facto relationship, all or any of the property
or financial resources of either or both of them
at the time when the agreement is made, or at a
10 later time and before the breakdown of the
relationship, is to be dealt with;
(b) the maintenance of either of them --
(i) during the de facto relationship;
(ii) after the de facto relationship has ended;
15 or
(iii) both during the defacto relationship and
after the de facto relationship has ended.
(3) A financial agreement made as mentioned in
subsection (1) may contain matters incidental or
20 ancillary to those mentioned in subsection (2).
(4) A financial agreement made as mentioned in
subsection (1) may terminate a previous financial
agreement made as mentioned in that subsection, or
former financial agreement, between the same parties.
25 205ZO. Financial agreements during de facto
relationship -- FLA s. 90C
(1) If --
(a) de facto partners in a de facto relationship make
a written agreement with respect to any of the
30 matters mentioned in subsection (2);
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(b) at the time of the making of the agreement, no
other agreement (whether made under this
section or section 205ZN or 205ZP) is in force
between the partners with respect to any of
5 those matters; and
(c) the agreement is expressed to be made under
this section,
the agreement is a financial agreement.
(2) The matters referred to in subsection (1)(a) are the
10 following --
(a) how, in the event of the breakdown of the
de facto relationship, all or any of the property
or financial resources of either or both of them
at the time when the agreement is made, or at a
15 later time and during the de facto relationship,
is to be dealt with;
(b) the maintenance of either of them --
(i) during the de facto relationship;
(ii) after the de facto relationship has ended;
20 or
(iii) both during the de facto relationship and
after the de facto relationship has ended.
(3) A financial agreement made as mentioned in
subsection (1) may contain matters incidental or
25 ancillary to those mentioned in subsection (2).
(4) A financial agreement made as mentioned in
subsection (1) may terminate a previous financial
agreement made as mentioned in that subsection, a
financial agreement made as mentioned in
30 section 205ZN(1), or a former financial agreement,
between the same parties.
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205ZP. Financial agreements after de facto relationship
ends -- FLA s. 90D
(1) If --
(a) after a de facto relationship is ended, the parties
5 to the former de facto relationship make a
written agreement with respect to any of the
matters mentioned in subsection (2);
(b) at the time of the making of the agreement, no
other agreement (whether made under this
10 section or section 205ZN or 205ZO) is in force
between the parties with respect to any of those
matters; and
(c) the agreement is expressed to be made under
this section,
15 the agreement is a financial agreement.
(2) The matters referred to in subsection (1)(a) are the
following --
(a) how all or any of the property or financial
resources that either or both of them had or
20 acquired during the former de facto relationship
is to be dealt with;
(b) the maintenance of either of them.
(3) A financial agreement made as mentioned in
subsection (1) may contain matters incidental or
25 ancillary to those mentioned in subsection (2).
(4) A financial agreement made as mentioned in
subsection (1) may terminate a previous financial
agreement made as mentioned in that subsection, a
financial agreement made as mentioned in
30 section 205ZN(1) or 205ZO(1), or a former financial
agreement, between the same parties.
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s. 47
205ZQ. Requirements with respect to provisions in financial
agreements relating to the maintenance of a de facto
partner or a child or children -- FLA s. 90E
A provision of a financial agreement that relates to the
5 maintenance of a party to the agreement or a child or
children is void unless the provision specifies --
(a) the party, or the child or children, for whose
maintenance provision is made; and
(b) the amount provided for, or the value of the
10 portion of the relevant property attributable to,
the maintenance of the party, or of the child or
each child, as the case may be.
205ZR. Certain provisions in agreements -- FLA s. 90F
(1) No provision of a financial agreement (other than a
15 financial agreement made under section 205ZN
or 205ZO in the event of the breakdown of a de facto
relationship) excludes or limits the power of a court to
make an order in relation to the maintenance of a
de facto partner if the court is satisfied that, when the
20 agreement was made, the circumstances of the de facto
partner were such that, taking into account the terms
and effect of the agreement, the partner would have
been unable to support himself or herself without an
income tested pension, allowance or benefit.
25 (2) To avoid doubt, a provision in an agreement made as
mentioned in section 205ZO(1) or 205ZP(1) that
provides for property or financial resources owned by a
party to the agreement to continue in the ownership of
that party is taken, for the purposes of that section, to
30 be a provision with respect to how the property or
financial resources are to be dealt with.
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205ZS. When financial agreements and former financial
agreements are binding -- FLA s. 90G
(1) A financial agreement is binding on the parties to the
agreement if, and only if --
5 (a) the agreement is signed by both parties;
(b) the agreement contains, in relation to each party
to the agreement, a statement to the effect that
the party to whom the statement relates has
been provided, before the agreement was
10 signed by him or her, as certified in an
annexure to the agreement, with independent
legal advice from a legal practitioner as to the
following matters --
(i) the effect of the agreement on the rights
15 of that party;
(ii) whether or not, at the time when the
advice was provided, it was to the
advantage, financially or otherwise, of
that party to make the agreement;
20 (iii) whether or not, at that time, it was
prudent for that party to make the
agreement; and
(iv) whether or not, at that time and in the
light of such circumstances as were, at
25 that time, reasonably foreseeable, the
provisions of the agreement were fair
and reasonable;
(c) the annexure to the agreement contains a
certificate signed by the person providing the
30 independent legal advice stating that the advice
was provided;
(d) the agreement has not been terminated and has
not been set aside by a court; and
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(e) after the agreement is signed, the original
agreement is given to one of the parties and a
copy is given to the other.
(2) A former financial agreement is binding on the parties
5 to the agreement if, and only if --
(a) the agreement is signed by both parties; and
(b) the agreement has not been terminated and has
not been set aside by a court.
(3) A court may make such orders for the enforcement of a
10 financial agreement, or a former financial agreement,
that is binding on the parties to the agreement as it
thinks necessary.
205ZT. Effect of death of party to financial agreement --
FLA s. 90H
15 A financial agreement that is binding on the parties to
the agreement continues to operate despite the death of
a party to the agreement and operates in favour of, and
is binding on, the legal personal representative of that
party.
20 205ZU. Termination of financial agreement and former
financial agreement -- FLA s. 90J
(1) The parties to a financial agreement or a former
financial agreement may terminate the agreement only
by --
25 (a) including a provision to that effect in another
financial agreement as mentioned in
section 205ZN(4), 205ZO(4) or 205ZP(4); or
(b) making a written agreement (a "termination
agreement") to that effect.
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Part 3 Amendments about de facto relationships
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(2) A termination agreement is binding on the parties if,
and only if --
(a) the agreement is signed by both parties to the
agreement;
5 (b) the agreement contains, in relation to each party
to the agreement, a statement to the effect that
the party to whom the statement relates has
been provided, before the agreement was
signed by him or her, as certified in an
10 annexure to the agreement, with independent
legal advice from a legal practitioner as to the
following matters --
(i) the effect of the agreement on the rights
of that party;
15 (ii) whether or not, at the time when the
advice was provided, it was to the
advantage, financially or otherwise, of
that party to make the agreement;
(iii) whether or not, at that time, it was
20 prudent for that party to make the
agreement;
(iv) whether or not, at that time and in the
light of such circumstances as were, at
that time, reasonably foreseeable, the
25 provisions of the agreement were fair
and reasonable;
(c) the annexure to the agreement contains a
certificate signed by the person providing the
independent legal advice stating that the advice
30 was provided;
(d) the agreement has not been set aside by a court;
and
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s. 47
(e) after the agreement is signed, the original
agreement is given to one of the parties and a
copy is given to the other.
(3) A court may, on an application by a person who was a
5 party to the financial agreement, or the former financial
agreement, that has been terminated, or by any other
interested person, make such order or orders (including
an order for the transfer of property) as it considers just
and equitable for the purpose of preserving or adjusting
10 the rights of persons who were parties to that
agreement and any other interested persons.
205ZV. Circumstances in which court may set aside a
financial agreement, termination agreement or
former financial agreement -- FLA s. 90K
15 (1) A court may make an order setting aside a financial
agreement, a termination agreement or a former
financial agreement if, and only if, the court is satisfied
that --
(a) the agreement was obtained by fraud (including
20 non-disclosure of a material matter);
(b) the agreement is void, voidable or
unenforceable;
(c) in the circumstances that have arisen since the
agreement was made it is impracticable for the
25 agreement or a part of the agreement to be
carried out;
(d) since the making of the agreement, a material
change in circumstances has occurred (being
circumstances relating to the care, welfare and
30 development of a child of the de facto
relationship) and, as a result of the change, the
child or, if the applicant has caring
responsibility for the child (within the meaning
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s. 47
of subsection (2)), a party to the agreement will
suffer hardship if the court does not set the
agreement aside; or
(e) in respect of the making of a financial
5 agreement or former financial agreement, a
party to the agreement engaged in conduct that
was, in all the circumstances, unconscionable.
(2) For the purposes of subsection (1)(d), a person has
caring responsibility for a child if --
10 (a) the person is a parent of the child with whom
the child lives;
(b) the person has a residence order in relation to
the child; or
(c) the person has a specific issues order in relation
15 to the child under which the person is
responsible for the child's long-term or
day-to-day care, welfare and development.
205ZW. Validity, enforceability and effect of financial
agreements, termination agreements and former
20 financial agreements -- FLA s. 90KA
The question of whether a financial agreement, a
termination agreement or a former financial agreement
is valid, enforceable or effective is to be determined by
a court according to the principles of law and equity
25 that are applicable in determining the validity,
enforceability and effect of contracts and purported
contracts, and, in proceedings relating to such an
agreement, a court --
(a) subject to paragraph (b), has the same powers,
30 may grant the same remedies and must have the
same regard to the rights of third parties as the
Supreme Court has, may grant and is required
to have in proceedings in connection with
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s. 48
contracts or purported contracts, being
proceedings in which the Supreme Court has
original jurisdiction;
(b) has power to make an order for the payment, by
5 a party to the agreement to another party to the
agreement, of interest on an amount payable
under the agreement, from the time when the
amount became or becomes due and payable, at
a rate not exceeding the rate prescribed by the
10 rules; and
(c) in addition to, or instead of, making an order or
orders under paragraph (a) or (b), may order
that the agreement, or a specified part of the
agreement, be enforced as if it were an order of
15 the court.
".
48. Section 235A inserted
After section 235 the following section is inserted --
"
20 235A. Injunctions relating to de facto relationships --
FLA s. 114
(1) A person may institute proceedings in a court for an
injunction in relation to a matter arising out of a
de facto relationship and the court hearing the
25 proceedings may make an order or grant an injunction
as it considers proper with respect to the proceedings,
including --
(a) an injunction for the personal protection of a
de facto partner;
30 (b) an injunction restraining a de facto partner from
entering or remaining in --
(i) the home previously shared by the
de facto partners;
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Part 3 Amendments about de facto relationships
s. 49
(ii) a de facto partner's principal place of
residence;
(iii) a place of residence or work of a
de facto partner; or
5 (iv) a specified area that contains a place of
a kind referred to in this paragraph;
(c) an injunction in relation to the property of a
de facto partner; or
(d) an injunction relating to the use or occupancy
10 of the home previously shared by the de facto
partner.
(2) In any proceedings under this Act (other than
proceedings to which subsection (1) applies) the court
hearing the proceedings may grant an injunction with
15 respect to a matter to which the proceedings relate, by
interlocutory order or otherwise, in any case in which it
appears to the court to be just or convenient to do so.
(3) An injunction or order under this section may be
granted unconditionally or on such terms and
20 conditions as a court considers appropriate.
".
49. Section 236 amended
(1) Section 236(1)(a) is amended by inserting after "235" --
" or 235A ".
25 (2) Section 236(2) is amended by inserting after "235" --
" or 235A ".
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s. 50
50. Section 244 amended
Section 244(3) is amended as follows:
(a) in paragraph (t) by inserting after "mediators" --
" and arbitrators ";
5 (b) in paragraph (u) by inserting after "mediation" --
" or arbitration or orders under section 60B ";
(c) in paragraph (v) by inserting after "mediated" --
" or arbitrated ";
(d) in paragraph (w) by --
10 (i) inserting after "mediator" --
" or arbitrator "; and
(ii) inserting after "mediating" --
" or arbitrating ";
(e) in paragraph (x) by --
15 (i) inserting after "mediators" --
" or arbitrators "; and
(ii) inserting after "mediating" --
" or arbitrating ";
(f) in paragraph (y) by inserting after "mediation" --
20 " or arbitration ";
(g) in paragraph (z) by --
(i) inserting after "mediation" --
" and arbitration "; and
(ii) inserting after "mediators" --
25 " and arbitrators ";
(h) at the end of paragraph (z) by deleting "and";
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Part 3 Amendments about de facto relationships
s. 51
(i) after paragraph (z) by inserting --
"
(zaa) the registration of awards under sections 60A or
60B;
5 (zab) the time and manner of making applications for
review of registered awards under section 60D
or for orders setting aside registered awards
under section 60E; and
".
10 51. Section 245 amended
(1) After section 245(2)(b) the following paragraphs are inserted --
"
(ba) the requirements to be complied with by a
person who is, or wishes to become, an
15 arbitrator;
(bb) anything in respect of which rules may be made
under section 244(3)(t), (u), (v), (w), (x), (y) or
(z);
".
20 (2) Section 245(2)(d) is amended by deleting "community mediator
or a private" and inserting instead --
" family and child ".
(3) Section 245(4) is amended by inserting after "and" --
" , subject to subsection (5), ".
25 (4) After section 245(4) the following subsection is inserted --
"
(5) A penalty provided for contravention of a regulation
made for the purposes of subsection (2)(d) is not to
exceed $1 100.
30 ".
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Family Court Amendment Bill 2001
Amendments about de facto relationships Part 3
s. 52
52. Consequential and related amendments -- Schedule 1
Schedule 1 has effect.
page 87
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 53
Part 4 -- Other amendments
53. Section 44 amended
(1) Section 44 is amended by inserting before "Without" the
subsection designation "(1)".
5 (2) At the end of section 44 the following subsection is inserted --
"
(2) A transfer under subsection (1) may be made on the
application of any party to the proceedings.
".
10 54. Section 79 amended
(1) Section 79(2)(b) is amended as follows:
(a) after subparagraph (i) by deleting "or";
(b) after subparagraph (ii) by deleting the full stop and
inserting --
15 "
; or
(iii) a statement to the effect that the plan
was developed after family and child
mediation and that is signed by the
20 family and child mediator involved.
".
(2) After section 79(2) the following subsection is inserted --
"
(2a) A reference in subsection (2)(b)(i), (ii) and (iii) to the
25 plan does not include a reference to any child
maintenance provisions.
".
page 88
Family Court Amendment Bill 2001
Other amendments Part 4
s. 55
55. Section 88 amended
After section 88(b) the following paragraph is inserted --
" (ba) a grandparent of the child; ".
56. Section 113 amended
5 Section 113 is amended after paragraph (d) by deleting "and"
and inserting --
"
(da) deals with varying the maintenance of certain
children (Subdivision 5A); and
10 ".
57. Section 118 amended
Section 118(1) is amended after paragraph (b) by deleting "or"
and inserting --
" (ba) a grandparent of the child; or ".
15 58. Section 123 amended
After section 123(1) the following subsection is inserted --
"
(1a) The court may make a child maintenance order referred
to in subsection (1), in relation to a child who is
20 17 years of age, to take effect when or after the child
attains the age of 18 years.
".
59. Section 128 amended
(1) Section 128(1)(b) is amended by deleting "applies" and
25 inserting instead --
" or persons (each of whom could do that) apply ".
page 89
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 59
(2) After section 128(1) the following subsections are inserted --
"
(1a) With the consent of all the parties to the first order, a
court may make an order --
5 (a) discharging the first order;
(b) suspending its operation wholly or in part and
either until further order or until a fixed time or
the happening of a future event;
(c) if the operation of the order has been suspended
10 under paragraph (b) or subsection (2)(b),
reviving its operation wholly or in part; or
(d) varying the order --
(i) so as to increase or decrease any amount
ordered to be paid by the order; or
15 (ii) in any other way.
(1b) However, a court must not make an order under
subsection (1a) that allows any entitlement of a child or
another person to an income tested pension, allowance
or benefit, to affect the duty of that child's parents to
20 maintain the child.
".
(3) Section 128(2) is amended as follows:
(a) by deleting "A" and inserting instead --
" In any other case, a ";
25 (b) in paragraph (c) by inserting after "(b)" --
" or subsection (1a)(b) ".
page 90
Family Court Amendment Bill 2001
Other amendments Part 4
s. 60
60. Subdivision 5A inserted in Part 5 Division 7
After section 128 the following Subdivision is inserted --
"
Subdivision 5A -- Varying the maintenance of certain
5 children
128A. Varying the maintenance of certain children --
FLA s. 66SA
(1) This section applies to persons who --
(a) are parties to an agreement (the "original
10 agreement") dealing with the maintenance of a
child; or
(b) are entitled to receive, or required to pay,
maintenance in respect of a child under a court
order,
15 and cannot properly make an application under the
Child Support (Assessment) Act for administrative
assessment of child support (within the meaning of that
Act) for the child seeking payment of child support by
the other person.
20 (2) The persons may, by registering a written agreement in
a court, vary or revoke the original agreement or order
to the extent that it deals with maintenance of the child.
(3) However, the registered agreement is of no effect to the
extent that it allows any entitlement of a child or
25 another person to an income tested pension, allowance
or benefit to affect the duty of that child's parents to
maintain the child.
(4) If the original agreement or order is varied under
subsection (2), it --
30 (a) continues to operate despite the death of a party
to the agreement or of a person entitled to
page 91
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 61
receive, or required to pay, maintenance under
the order; and
(b) operates in favour of, and is binding on, the
legal representative of that party or person,
5 unless the agreement or order provides otherwise.
(5) However, despite anything in the agreement or order, it
does not continue to operate, to the extent that it
requires the periodic payment of maintenance, after the
death of the person entitled to receive those payments.
10 (6) This section applies despite anything in Division 4.
".
61. Section 131A inserted and transitional
(1) After section 131 the following section is inserted --
"
15 131A. Children who are 18 or over: change of
circumstances -- FLA s. 66VA
(1) A child maintenance order made under section 123 --
(a) to enable the child to complete the child's
education; or
20 (b) because of a mental or physical disability of the
child,
stops being in force if the child ceases that education or
ceases to have that disability.
(2) The person to whom the maintenance is payable must,
25 as soon as practicable, inform the person required to
pay it of that change in circumstances.
(3) Any amounts of maintenance paid under the child
maintenance order after it stops being in force may be
recovered in a court.
30 ".
page 92
Family Court Amendment Bill 2001
Other amendments Part 4
s. 62
(2) The amendment effected by subsection (1) does not apply in
relation to child maintenance orders made before the
commencement of this section.
62. Section 132 replaced and transitional
5 (1) Section 132 is repealed and the following section is inserted
instead --
"
132. Recovery of arrears -- FLA s. 66W
(1) Nothing in section 123(3), or in this Subdivision (apart
10 from subsection (2)), affects the recovery of arrears due
under a child maintenance order in relation to a child
when the order ceases to be in force.
(2) If arrears are due under such an order when the order
ceases to be in force, the court may, by order,
15 retrospectively --
(a) discharge the order if there is just cause for
doing so; or
(b) vary the order so as to increase or decrease the
arrears to be paid under the order if the court is
20 satisfied that --
(i) the circumstances of the person liable to
pay the arrears are such as to justify the
variation;
(ii) the circumstances of the person entitled
25 to receive the arrears are such as to
justify the variation; or
(iii) in the case of an order that operated in
favour of, or that was binding on, a legal
personal representative, the
30 circumstances of the estate are such as
to justify the variation.
".
page 93
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 63
(2) The amendment made by subsection (1), applies in relation to
arrears that are outstanding on or after the commencement of
this section.
63. Section 144 amended
5 Section 144 is amended after paragraph (c) by deleting "or" and
inserting instead --
" (ca) a grandparent of the child; or ".
64. Section 149 amended
Section 149(g) is amended by deleting "the arrest, without
10 warrant, of a" and inserting instead --
" or directing a person to arrest, without warrant, a ".
65. Section 152 amended
Section 152 is amended after paragraph (c) by deleting "or" and
inserting instead --
15 " (ca) a grandparent of the child; or ".
66. Section 155 amended
(1) Section 155 is amended by inserting before "A" the subsection
designation "(1)".
(2) At the end of section 155 the following subsection is inserted --
20 "
(2) To avoid doubt, unless a recovery order specifically
provides to the contrary, each term of the order
continues to have effect until the end of the period for
which it remains in force regardless of whether
25 anything has previously been done in accordance with
the order.
".
page 94
Family Court Amendment Bill 2001
Other amendments Part 4
s. 67
67. Section 214A inserted
After section 214 the following section is inserted --
"
214A. Children swearing affidavits, being called as
5 witnesses or being present in court -- FLA s. 100B
(1) A child, other than a child who is or is seeking to
become a party to proceedings, must not swear an
affidavit for the purposes of proceedings, unless a court
makes an order allowing the child to do so.
10 (2) A child must not be called as a witness in, or be present
during, proceedings in a court, unless a court makes an
order allowing the child to be called as a witness or to
be present (as the case may be).
(3) In this section --
15 "child" means a child under 18 years of age.
".
68. Section 219A inserted
After section 219 the following section is inserted in Part 9 --
"
20 219A. Maintenance orders -- more than 12 months old --
FLA s. 106
In determining whether to make an order enforcing a
maintenance order, a court must not require that there
be special circumstances that justify enforcing the
25 maintenance order merely because the maintenance
payable under it is more than 12 months old.
".
page 95
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 69
69. Section 236 amended
(1) Section 236(1)(b) is amended by deleting "or molesting" and
inserting instead --
" , molesting or stalking ".
5 (2) Section 236(6) is repealed and the following subsection is
inserted instead --
"
(6) In this section --
"holding period", in relation to a person's arrest,
10 means the period starting when the person is
arrested and ending at the close of business on the
next day that is not a Saturday, Sunday or public
holiday.
".
15 70. Section 240 amended
After section 240(2) the following subsection is inserted --
"
(2a) If a party files a copy of an offer and, before any notice
of withdrawal is filed, the party to whom the offer is
20 made files a notice that the offer has been accepted, the
proceedings end (so far as they concern the party who
accepted the offer) when the court makes an order
giving effect to the terms of that offer.
".
25 71. Section 243 amended
(1) Section 243 is amended in subsections (1) and (2) by deleting
"or television" in both places where it occurs and inserting
instead --
" , television or other electronic means ".
page 96
Family Court Amendment Bill 2001
Other amendments Part 4
s. 71
(2) Section 243(3) is amended in paragraphs (b) and (c) by inserting
after "televised account" in both places where it occurs --
" or an account by other electronic means ".
(3) Section 243(7) is amended by deleting "Attorney General" and
5 inserting instead --
"
Director of Public Prosecutions appointed under
section 5 of the Director of Public Prosecutions
Act 1991
10 ".
(4) Section 243(8) is amended as follows:
(a) by inserting after paragraph (d) the following
paragraph --
"
15 (da) the display of a notice in the premises of a court
that lists proceedings under this Act, identified
by reference to the names of the parties, that are
to be dealt with by the court;
";
20 (b) after paragraph (f)(i) by deleting "or";
(c) after paragraph (f)(ii) by deleting the full stop and
inserting --
"
; or
25 (iii) to a natural person who is a party to any
proceedings under this Act, in
connection with the conduct of those
proceedings.
".
page 97
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 72
(5) Section 243(9) is amended as follows:
(a) in the definition of "court" --
(i) in paragraph (a) by inserting after "Act" --
" , the regulations "; and
5 (ii) in paragraph (b) by deleting the full stop and
inserting a semicolon;
(b) after the definition of "court" by inserting --
"
"electronic means" includes --
10 (a) in the form of data, text or images by means
of guided and, or, unguided electromagnetic
energy; or
(b) in the form of speech by means of guided
and, or, unguided electromagnetic energy,
15 where the speech is processed at its
destination by an automated voice
recognition system.
".
72. Section 243A inserted
20 After section 243 the following section is inserted --
"
243A. Use of reasonable force in arresting persons --
FLA s. 122AA
A person who is authorised or directed by a provision
25 of this Act or by a warrant issued under a provision of
this Act, to arrest another person may use such
reasonable force as is necessary to make the arrest or to
prevent the escape of that person after the arrest.
".
page 98
Family Court Amendment Bill 2001
Other amendments Part 4
s. 73
73. Section 245 amended
After section 245(4) the following subsection is inserted --
"
(5) To the extent of any inconsistency between regulations
5 made under this Act and rules made under this Act, the
regulations prevail.
".
74. References to "recognizance" changed to "bond"
(1) The provisions referred to in the Table to this subsection are
10 amended by deleting "recognizance" in each place where it
occurs and inserting instead --
" bond ".
Table
Section 103(2)(a) Section 230(6) and (7)
Section 105(1)(b) Section 244(3)(p)
Section 156(3)(b) and (c)
Section 174 paragraph (v) of
the definition of "Division 10
contact order"
(2) Section 244(3)(o) is amended by deleting "recognizances" and
15 inserting instead --
" bonds ".
75. Certain penalties increased
The provisions referred to in column 1 of the Table to this
section are amended by deleting the amount specified in
20 column 2 and inserting instead the amount specified in
column 3.
page 99
Family Court Amendment Bill 2001
Part 4 Other amendments
s. 75
Table
Provision amended Amount Amount inserted
deleted
Section 109(2) $6 000 $6 600
Section 110(2) $6 000 $6 600
Section 148(1) $12 000 $13 200
Section 156(3)(a) $1 000 $1 100
Section 230(9) $1 000 $1 100
Section 243(1), in paragraph (a)
of the penalty provision $10 000 $11 000
Section 243(1), in paragraph (b)
of the penalty provision $5 000 $5 500
Section 243(2), in paragraph (a)
of the penalty provision $10 000 $11 000
Section 243(2), in paragraph (b)
of the penalty provision $5 000 $5 500
Section 243(6), in paragraph (a)
of the penalty provision $5 000 $5 500
Section 243(6), in paragraph (b)
of the penalty provision $2 500 $2 750
Section 244(5) $5 000 $5 500
Section 245(4) $5 000 $5 500
page 100
Family Court Amendment Bill 2001
Consequential and related amendments Schedule 1
Schedule 1 -- Consequential and related amendments
[s. 52]
1. Administration Act 1903 amended
(1) The amendments in this clause are to the Administration Act 1903*.
5 [* Reprinted as at 1 July 1999.]
(2) Section 13(1) is amended by deleting "section 14" and inserting
instead --
" sections 14 and 15 ".
(3) Section 14(1) is amended by deleting "Where" and inserting
10 instead --
" Subject to this section and section 15, where ".
(4) Section 14(6) is repealed and the following subsection is inserted
instead --
"
15 (6) If --
(a) a surviving husband or wife of the intestate is not
entitled to the whole of the intestate property in
accordance with this section and section 15; and
(b) there is an interest within the meaning of clause
20 1(1)(b) of the Fourth Schedule,
then that Schedule applies with respect to that interest.
".
(5) After section 14 the following section is inserted --
"
25 15. De facto partners and distribution on intestacy
(1) If the intestate dies leaving a de facto partner but no
husband or wife, then where the de facto partner and the
intestate lived as de facto partners for a period of at least
2 years immediately before the death of the intestate, the
30 de facto partner shall be entitled, in accordance with
page 101
Family Court Amendment Bill 2001
Schedule 1 Consequential and related amendments
section 14, to the intestate property to which a husband or
wife of the intestate would have been entitled, had the
intestate died leaving a husband or wife.
(2) If the intestate dies leaving a husband or wife and a de facto
5 partner, then where --
(a) the de facto partner and the intestate lived as
de facto partners for a period of at least 2 years
immediately before the death of the intestate; and
(b) the intestate did not, during the whole or any part of
10 that period, live as the husband or wife of the
person to whom he or she was married,
the de facto partner shall be entitled, to one-half of the
intestate property to which the husband or wife would have
been entitled in accordance with section 14 but for this
15 subsection and the husband or wife shall be entitled to the
other half of that property.
(3) If the intestate dies leaving a husband or wife and a de facto
partner, then where --
(a) the de facto partner and the intestate lived as
20 de facto partners for a period of at least 5 years
immediately before the death of the intestate; and
(b) the intestate did not, during the whole or any part of
that period, live as the husband or wife of the
person to whom he or she was married,
25 the de facto partner shall be entitled, in accordance with
section 14, to the intestate property to which the husband or
wife would have been entitled but for this subsection.
(4) Where under this section a de facto partner is entitled to
intestate property and the intestate dies leaving more than
30 one de facto partner so entitled, those de facto partners are
entitled to that property in equal shares.
(5) Where under this section a de facto partner is entitled to
intestate property, then for the purposes of section 14 and
the Fourth Schedule, the de facto partner is to be taken to be
35 a husband or wife, as is applicable, and all references to a
page 102
Family Court Amendment Bill 2001
Consequential and related amendments Schedule 1
husband or wife in those provisions are to be construed
accordingly.
(6) In this section --
"the intestate" and "the intestate property" have
5 means the same respective meanings as they have in
section 14.
(7) The amendments made to this Act by the Family Court
Amendment Act 2002 do not apply to or in respect of the
estate of a person who died intestate as to all or any of the
10 person's property before the commencement of that Act,
and the estate of such a person is to be distributed as if that
Act had not been passed.
".
(6) Section 139(1)(a) is amended by deleting "person;" and inserting
15 instead --
"
person or a person who was living as a de facto partner of
the deceased person immediately before the deceased
person's death;
20 ".
(7) The heading to the Fourth Schedule is amended by deleting "of
surviving spouse of intestate as respects the matrimonial home" and
inserting instead --
" in respect of dwelling houses ".
25 (8) Clause 1(1)(a) of the Fourth Schedule is deleted.
(9) Clause 1(1)(c) of the Fourth Schedule is amended by deleting "the
Table" and inserting instead --
" sections 14 and 15 ".
page 103
Family Court Amendment Bill 2001
Schedule 1 Consequential and related amendments
2. Stamp Act 1921 amended
(1) The amendments in this clause are to the Stamp Act 1921*.
[* Reprinted as at 22 October 1999.
For subsequent amendments see 2000 Index to Legislation of
5 Western Australia Table 1, p. 423-4 and Act Nos. 3, 4, 10 and 12
of 2001.]
(2) Section 112UA(1) is amended by inserting in the appropriate
alphabetical position the following definition --
"
10 "de facto relationship" means a de facto relationship which
the Commissioner is satisfied comes within section
205Z(1)(a), (b) or (c) of the Family Court Act 1997;
".
(3) Section 112UB(1) is repealed and the following subsections are
15 inserted instead --
"
(1) Sections 112UC and 112UD do not apply to or in relation
to --
(a) an order; or
20 (b) a maintenance agreement between parties who are
married to each other or have been married to each
other,
or in relation to an instrument of conveyance or transfer of
property pursuant to such an order or agreement unless the
25 parties referred to in the order or the agreement are
separated or divorced from each other.
(1a) Sections 112UC and 112UD do not apply to or in relation
to --
(a) an order under Part 5A of the Family Court
30 Act 1997; or
(b) a maintenance agreement between de facto partners,
or in relation to an instrument of conveyance or transfer of
property pursuant to such an order or agreement unless the
de facto relationship between the de facto partners that are
35 referred to in the order or agreement has ended.
".
page 104
Family Court Amendment Bill 2001
Consequential and related amendments Schedule 1
(4) After section 112UB(2) the following subsection is inserted --
"
(3) A statement in a maintenance agreement to the effect that --
(a) the parties to a marriage are separated or divorced
5 from each other; or
(b) the de facto relationship between de facto partners
has ended,
is conclusive evidence of the fact stated, in the absence of
evidence to the contrary.
10 ".
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