FAMILY LAW AMENDMENT ACT 1976

No. 63 of 1976

An Act to amend the Family Law Act 1975.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—

Short title and citation.

1. (1) This Act may be cited as the Family Law Amendment Act 1976.

(2) The Family Law Act 1975 is in this Act referred to as the Principal Act.

(3) The Principal Act, as amended by this Act, may be cited as the Family Law Act 1975-1976.

Commencement.

2. (1) Sections 1, 2, 17, 18 and 39 and the Schedule shall come into operation on the day on which this Act receives the Royal Assent.

(2) Sections 29 and 30 shall be deemed to have come into operation on 5 January 1976.

(3) The remaining provisions of this Act shall come into operation on 1 July 1976.

Interpretation.

3. Section 4 of the Principal Act is amended—

(a) by omitting from sub-section (1) the definition of “court of summary jurisdiction

(b) by omitting from sub-section (1) the definition of “Family Court”;

(c)by omitting from the definition of “financial or custodial proceedings” in sub-section (1) the words “paragraph (c), (d) or (e)” and substituting the words “any of paragraphs (c) to (e)

(d) by omitting paragraph (a) of the definition of “marriage counsellor” in sub-section (1) and substituting the following paragraphs:—

“(a) the Principal Director of Court Counselling, a Director of Court Counselling or another court counsellor appointed under section 37;

“(aa) a person appointed under a law of a State as a counsellor in relation to a Family Court of that State;”;

(e) by omitting paragraph (c) of the definition of “matrimonial cause” in sub-section (1) and substituting the following paragraphs:—

“(c) proceedings between the parties to a marriage with respect to—

(i) the maintenance of one of the parties to the marriage; or

(ii) the custody, guardianship or maintenance of, or access to, a child of the marriage;

“(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties;

“(cb) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the maintenance of the child;”;

(f) by omitting paragraph (e) of the definition of “matrimonial cause” in sub-section (1) and substituting the following paragraph:—

“(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship; or”;

(g) by omitting from sub-section (1) the definition of “Registrar” and substituting the following definition:—

“‘Registrar’, in relation to a court, means the principal officer of the court or any other appropriate officer of the court;";

(h) by inserting after the definition of “Territory” in sub-section (1) the following definition: —

“‘voluntary organization’ includes a branch or section of such an organization, being a branch or section that is identified by a distinct name and in respect of which separate financial accounts are maintained; ”;

(j) by omitting paragraph (a) of the definition of “welfare officer” in sub-section (1) and substituting the following paragraphs:—

“(a) the Principal Director of Court Counselling, a Director of Court Counselling or another court counsellor appointed under section 37;

“(aa) a person appointed under a law of a State as a counsellor or as a welfare officer in relation to a Family Court of that State; and

(k) by inserting after sub-section (1) the following sub-section:—

“(1a) In this Act—

(a) a reference to the Family Court is a reference to the Family Court of Australia; and

(b) a reference to a Family Court of a State is a reference to a court to which section 41 applies.

4. Section 5 of the Principal Act is repealed and the following section substituted:—

Certain children deemed to be children of a marriage.

“5. (1) For the purposes of the application of this Act in relation to a marriage—

(a). a child adopted since the marriage by the husband and wife; or

(b). a child of the husband and wife born before the marriage,

shall be deemed to be a child of the marriage, and a child of the husband and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

“(2) For the purposes of the application of section 63 in relation to a marriage—

(a) a child adopted since the marriage by the husband or the wife with the consent of the other; or

(b) a child of either the husband or wife (including an ex-nuptial child of either of them or a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife,

shall be deemed to be a child of the marriage.

“(3) For the purposes of sub-section (2), the relevant time is the time immediately preceding the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately proceeding the time when they last separated before the institution of the proceedings for dissolution of the marriage.

“(4) The provisions of sub-section (1) apply in relation to a purported marriage that is void as if the purported marriage were a marriage.”.

Transitional.

5. Section 9 of the Principal Act is amended—

(a) by omitting from sub-section (2) the words “the applicant” and substituting the words “either party”; and

(b) by inserting after sub-section (7) the following sub-section:—

“(7a) Where, in any proceedings constituting a matrimonial cause, being proceedings continued and dealt with in accordance with sub-section (1), a decree nisi was made on or after 5 January 1976 and before the date of commencement of this subsection, being a decree that did not become absolute before that last-mentioned date, or is made on or after the date of commencement of this sub-section, then—

(a) except in the case of a decree made before the date of commencement of this sub-section in respect of which a relevant order was made under sub-section 71 (1) of the repealed Act before that date—section 63 of this Act applies in relation to the decree; and

(b) the decree becomes absolute upon—

(i) the expiration of one month from—

(A) in the case of a decree in respect of which a relevant order was made under subsection 71 (1) of the repealed Act before the date of commencement of this subsection —the date of making of that order; or

(B) in any other case—the date of making of a relevant order under section 63 of this Act; or

(ii) the date of commencement of this sub-section, whichever is the later.",

Child welfare law not affected.

6. Section 10 of the Principal Act is amended—

(a) by omitting paragraph (a) of sub-section (1) and substituting the following paragraph:—

“(a) a child who, under the law of a State, is a ward of the State or a State child or is under the guardianship, or the care and control, of—

(i) a Minister of the Crown of the State;

(ii) an officer of the State; or

(iii) an officer of an adoption agency approved under a law of the State; or”;

(b) by omitting paragraph (a) of sub-section (2) and substituting the following paragraph:—

“(a) the jurisdiction of a court, or the power of an authority, under a law of a State to make an order, or take any other action, whereby a child becomes a ward of the State or a State child, or is placed under the guardianship, or the care and control, of—

(i) a Minister of the Crown of the State;

(ii) an officer of the State; or

(iii) an officer of an adoption agency approved under a law of the State, or any similar jurisdiction or power under a law of a Territory;”; and

(c) by inserting in sub-section (3), after the words “Family Court”, the words a Family Court of a State”.

Conciliation.

7. Section 14 of the Principal Act is amended—

(a) by omitting paragraphs (a), (b) and (c) of sub-section (2) and substituting the following paragraphs:—

“(a) adjourn the proceedings to afford the parties an opportunity to consider a reconciliation; or

“(b) with the consent of those parties, interview them in chambers, with or without counsel, as the Judge or magistrate thinks proper, with a view to effecting a reconciliation.”;

(b) by inserting after sub-section (2) the following sub-section: —

“(2a) Where a Judge or magistrate adjourns proceedings in accordance with paragraph (2)(a), he may, if he thinks it desirable to do so, advise the parties to attend upon a marriage counsellor or an approved marriage counselling organization or to request the Principal Director of Court Counselling of the Family Court or an appropriate officer of a Family Court of a State to nominate some other suitable person or organization to assist them in considering a reconciliation.“; and

(c) by omitting paragraph (a) of sub-section (6) and substituting the following paragraph:—

“(a) the parties have considered a reconciliation with the assistance of a marriage counsellor, an approved marriage counselling organization or some other suitable person or organization nominated by the Principal Director of Court Counselling of the Family Court or by an appropriate officer of a Family Court of a State; or”.

Notice seeking counselling.

8. Section 15 of the Principal Act is amended—

(a) by inserting in sub-section (1), after the word “Court” (first occurring), the words “or in a Family Court of a State”;

(b) by omitting from sub-section (1) the words “the Family Court” (last occurring) and substituting the words “that Court”; and

(c) by omitting from sub-section (2) the words “the Director of Counselling and Welfare of the Family Court” and substituting the words “the Principal Director of Court Counselling of the Family Court or an appropriate officer of the Family Court of that State, as the case may be,”

9. Section 16 of the Principal Act is repealed and the following section substituted: —

Advice as to counselling.

“16. (1) The Principal Director of Court Counselling of the Family Court may advertise the existence and availability of the counselling and welfare facilities of the Family Court and of other courts having jurisdiction under this Act.

“(2) A party to a marriage may seek the assistance of the counselling facilities of the Family Court or of a Family Court of a State, and the Principal Director of Court Counselling of the Family Court or an appropriate officer of the Family Court of that State, as the case may be, shall, as far as practicable, make those facilities available.”.

Admissions made to marriage counsellors, &c.

10. Section 18 of the Principal Act is amended by omitting from paragraph (b) of sub-section (1) the words “in accordance with sub-paragraph 14(2)(c)(ii)” and substituting the words “in accordance with sub-section 14 (2a) or paragraph 14(6)(a)”.

Appointment, removal and resignation of Judges.

11. Section 22 of the Principal Act is amended by inserting after sub-section (2) the following sub-sections: —

“(2a) A person may be appointed to the office of Judge of the Family Court of Australia notwithstanding that he holds an office of Judge of a Family Court of a State and may serve in that office of Judge of the Family Court of Australia notwithstanding that he continues to hold, and serve in, the office of Judge of the Family Court of that State.

“(2b) If a person who holds office as a Judge of the Family Court of Australia is appointed or serves as a Judge of a Family Court of a State, the appointment or service shall not affect his tenure of that office of Judge of the Family Court of Australia or his rank, title, status, precedence, salary or annual allowance or other rights or privileges as the holder of that office of Judge of the Family Court of Australia and, for all purposes, his service as a Judge of the Family Court of that State shall be taken to be service as the holder of that office of Judge of the Family Court of Australia.

12. Section 25 of the Principal Act is repealed and the following section substituted:—

Salary and allowances.

“25. (1) The Chief Judge, Senior Judges and other Judges of the Court shall receive salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament.

“(2) The salary and annual allowances of the Judges accrue from day to day and are payable monthly.

“(3) The Consolidated Revenue Fund is appropriated to the extent necessary for payment of salaries and annual allowances in accordance with this section.”

Exercise of jurisdiction.

13. Section 28 of the Principal Act is amended—

(a) by inserting in sub-section (3), after the word “State”, the words “or Territory”;

(b) by inserting after sub-section (3) the following sub-section:—

“(3a) The jurisdiction of the Court to hear and determine a case stated under section 94a shall be exercised by a Full Court.”; and

(c) by inserting after sub-section (4) the following sub-section:—

“(4a) Sub-section (4) applies in relation to a case stated under section 94a in like manner as it applies in relation to an appeal.”.

Appellate jurisdiction.

14. Section 29 of the Principal Act is amended by omitting sub-section (2).

Court divided in opinion.

15. Section 30 of the Principal Act is amended by omitting from paragraph (a) the words “the Supreme Court of a State” and substituting the words “a Family Court of a State or the Supreme Court of a State or Territory”.

Officers of Court.

16. Section 37 of the Principal Act is amended—

(a) by omitting sub-section (3) and substituting the following subsection: —

“(3) There shall be a Principal Registrar of the Court and such Registrars and Deputy Registrars of the Court as are necessary”; and

(b) by omitting sub-section (8) and substituting the following sub-sections:—

“(8) There shall be a Principal Director of Court Counselling, and such Directors of Court Counselling and other court counsellors as are necessary.

“(9) A person shall not be appointed under this section unless—

(a) he is a person appointed or employed under the Public Service Act 1922-1975; or

(b) at the time of his appointment, he holds an office in relation to a court of a State.”.

Jurisdiction in matrimonial causes.

17. Section 39 of the Principal Act is amended by omitting sub-section (9) and substituting the following sub-section:—

“(9) The jurisdiction conferred on or invested in a court by this section includes jurisdiction to hear and determine proceedings transferred to that court in accordance with this Act”.

Establishment of State Family Courts.

18. Section 41 of the Principal Act is amended—

(a) by adding at the end of sub-section (1) the words “(including the provision of counselling facilities for those courts)

(b) by inserting in sub-section (3), after the word “instituted” the words “and proceedings transferred to that court in accordance with this Act”;

(c) by inserting after sub-section (3) the following sub-section:—

“(3a) Notwithstanding the issue of a Proclamation under sub-section (2) and the provisions of sub-section (3)—

(a) proceedings by way of cross-proceedings in relation to proceedings for principal relief that were pending in the Supreme Court of the State concerned immediately before the date fixed by the Proclamation; or

(b) proceedings of a kind referred to in any of paragraphs (c) to (f) of the definition of ‘matrimonial cause’ in sub-section 4(1) that—

(i) relate to proceedings for principal relief that were pending in the Supreme Court of the State concerned immediately before the date fixed by the Proclamation; or

(ii) are between parties between whom proceedings of a kind referred to in any of paragraphs (c) to (f) of that definition were so pending immediately before that date, may be instituted, heard and determined in that Supreme Court on or after the date fixed by the Proclamation.”;

(d) by omitting paragraph (c) of sub-section (4) and substituting the following paragraph:—

“(c) counselling facilities will be available to that court.”; and

(e) by inserting after sub-section (4) the following sub-section:—

“(4a) A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this sub-section, have been instituted in a Family Court of a State, may apply to a Family Court of a State for an order transferring the proceedings to that Court, and the Court may order accordingly.”.

Institution of proceedings.

19. (1) Section 44 of the Principal Act is amended—

(a) by omitting from sub-section (1) the words “Subject to this section” and substituting the words “Except as otherwise prescribed”; and

(b) by omitting from sub-section (3) all the words to and including the word “definition” and substituting the words “Where a decree nisi of dissolution of marriage or a decree of nullity of marriage has been made, proceedings of a kind referred to in sub-paragraph (c)(i) or paragraph (ca) of the definition”.

(2) Regulations made under the Principal Act before the commencement of this section shall be deemed to have been as validly made as if the amendment made by this section had come into operation before the making of the regulations.

Staying and transfer of proceedings.

20. Section 45 of the Principal Act is amended—

(a) by inserting in sub-section (1), before the word “court” (last occurring), the word “first-mentioned”; and

(b) by omitting from sub-section (2) the words “or is being continued under this Act” and substituting the words “under this Act or is being continued in accordance with any of the provisions of section 9”.

Rights of guardianship and custody of children.

21. Section 61 of the Principal Act is amended by omitting from sub-section (3) the words “Unless a court having jurisdiction under this Act otherwise orders, an” and substituting the word “An”.

Powers of court in custodial proceedings.

22. Section 64 of the Principal Act is amended—

(a) by omitting from sub-section (3) the words “the court” and substituting the words “a court”;

(b) by omitting from sub-section (6) the words “the court” (first occurring) and substituting the words “a court”;

(c) by omitting from sub-section (7) the words “The court” and substituting the words “A court”;

(d) by omitting sub-sections (9) and (10) and substituting the following sub-sections: —

“(9) Where an order made by a court (including a court of a prescribed overseas country) with respect to the custody of a child is in force, a court having jurisdiction under this Act may issue a warrant authorizing or directing the person, or any of the persons, to whom it is addressed, for the purpose of giving effect to the order—

(a) at any time, with such assistance as he requires or they require, and if necessary by force—

(i) to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, named or described in the warrant; and

(ii) to take possession of the child; and

(b) to deliver the child to the person entitled to custody or to some other person or authority (including a person or authority in or from a prescribed overseas country) named in the order on behalf of the person entitled to custody.

“(10) Where an order made by a court (including a court of a prescribed overseas country) entitling a person to access to a child is in force, a court having jurisdiction under this Act may issue a warrant authorizing or directing the person, or any of the persons, to whom it is addressed, for the purpose of giving effect to the order—

(a) at any time, with such assistance as he requires or they require, and if necessary by force—

(i) to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, named or described in the warrant; and

(ii) to take possession of the child; and

(b) to deliver the child to the person so entitled to access.

“(10a) A warrant under sub-section (9) or (10) may be addressed to—

(a) a named person or named persons; or

(b) every person from time to time holding or acting in a specified office or offices of the Commonwealth or of a State or Territory.

“(10b) Without limiting the generality of sub-section (10a), a warrant under sub-section (9) or (10) may be addressed to—

(a) a named person being a person who holds an appointment as an enforcement officer under sub-section (12); or

(b) every person from time to time holding or acting in an office of enforcement officer."; and

(e) by omitting sub-section (12) and substituting the following subsections:—

“(12) The Attorney-General may appoint persons to be enforcement officers for the purposes of this Part.

“(13) An appointment under sub-section (12) may be an appointment of—

(a) a named person only; or

(b) every person from time to time holding or acting in a specified office of the Commonwealth or of a State or Territory.”.

Registration inter-State of orders for custody of ex-nuptial children.

23. Section 67 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:—

“(1) In this section, ‘custody order’ means a subsisting order for custody of, or access to, an ex-nuptial child who has not attained the age of 18 years.”; and

(b) by omitting from sub-section (2) the words “(including the Family Court)”.

Matters to be taken into consideration with respect to maintenance.

24. Section 75 of the Principal Act is amended by omitting from sub-section (1) the words “this Part” and substituting the word and figures “section 74”.

Alteration of property interests.

25. Section 79 of the Principal Act is amended by omitting sub-section (3).

26. After section 79 of the Principal Act the following section is inserted:—

Setting aside of orders altering property interests.

“79a. (1) Where, on application by a person affected by an order made by a court under section 79, the court is satisfied that the order was obtained by fraud, by duress, by the giving of false evidence or by the suppression of evidence, the court may, in its discretion, set aside the order and, if it thinks fit, but subject to sub-sections 79(2) and (4), make another order under section 79 in substitution for the order so set aside.

“(2) In the exercise of its powers under sub-section (1), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchase or other person interested. ”.

Modification of maintenance orders.

27. Section 83 of the Principal Act is amended by inserting in sub-section (7), after the figures “72”, the figures “73”.

28. After section 89 of the Principal Act the following section is inserted:—

Institution of maintenance proceedings authorized authority or person.

“89a. The regulations may make provision for and in relation to the authorizing of a prescribed authority of the Commonwealth, of a State or of a Territory, or the person for the time being holding a prescribed office under a law of the Commonwealth, of a State or of a Territory, in its or his discretion, to institute and prosecute proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, on behalf of that party or child.".

Instruments not liable to duty.

29. Section 90 of the Principal Act is amended by adding at the end thereof the words “or any law of the Commonwealth that applies only to or in relation to a Territory”.

Appeals to Family Court.

30. Section 94 of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section:—

“(1) A person aggrieved by a decree of—

(a) the Family Court, constituted otherwise than as a Full Court;

(b) a Family Court of a State; or

(c) the Supreme Court of a State or Territory constituted by a single Judge,

exercising original or appellate jurisdiction under this Act or in a proceeding continued in accordance with any of the provisions of section 9 may, within the time prescribed by the regulations, appeal from the decree to a Full Court of the Family Court.

31. After section 94 of the Principal Act the following section is inserted: —

Case stated.

“94a. (1) If, in proceedings in the Family Court, constituted otherwise than as a Full Court, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.

“(2) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge.

Appeals to High Court.

32. Section 95 of the Principal Act is amended—

(a) by omitting the words “the Judiciary Act 1903-1973” and substituting the words “any other Act’

(b) by omitting the words “judgment, decree or order” and substituting the word “decree”; and

(c) by omitting from paragraph (b) the words “the Full Court” and substituting the words “a Full Court”.

Appeals from courts of summary jurisdiction.

33. Section 96 of the Principal Act is amended—

(a). by omitting from sub-section (2) the words “in that Court”; and

(b) by omitting from paragraph (b) of sub-section (4) the words “with the leave of that court”.

Decrees under this Act.

34. Section 103 of the Principal Act is amended by omitting the words “other than Papua New Guinea”.

Methods of enforcement.

35. Section 106 of the Principal Act is amended by omitting paragraphs (a) and (b) and substituting the following paragraphs:—

“(a) provision for conferring jurisdiction on the Family Court or on courts of the Territories or investing State courts with federal jurisdiction; and

(b) in the case of a decree being a maintenance order under Part VIII—provision for an officer of a court exercising jurisdiction under this Act, a prescribed authority of the Commonwealth, of a State or of a Territory or the person for the time being holding a prescribed office under a law of the Commonwealth, of a State or of a Territory, in his or its discretion, to institute and prosecute proceedings on behalf of the person entitled to moneys payable under that order for the purpose of enforcing payment of those moneys.”.

Contempt.

36. Section 108 of the Principal Act is amended by inserting in sub-section (1), before the word “wilful”, the words “contempt constituted by”.

Overseas enforcement of maintenance orders.

37. Section 110 of the Principal Act is amended—

(a). by inserting after paragraph (b) of sub-section (2) the following paragraph: —

“(ba) the making of provisional maintenance orders, and the transmission of such orders to appropriate courts of reciprocating countries or countries with restricted reciprocity, for the purposes of obtaining the confirmation, and securing the enforcement, of those orders in those countries, and the effect in Australia of those orders;”; and

(b) by omitting from paragraph (c) of sub-section (2) the words “or transmitted” and substituting the words “or of maintenance orders or provisional maintenance orders transmitted”.

Regulations.

38. Section 123 of the Principal Act is amended by omitting from paragraph (c) of sub-section (3) the word “judgments” and substituting the word “decrees”.

Additional amendments.

39. The Principal Act is amended as set out in the Schedule.

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SCHEDULE  Section 39

ADDITIONAL AMENDMENTS