Family Law Amendment Act 1991
No. 37 of 1991
An Act to amend the Family Law Act 1975
[Assented to 27 March 1991]
[Date of commencement 24 April 1991]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
Short title
1. This Act may be cited as the Family Law Amendment Act 1991.
Principal Act
2. In this Act, “Principal Act” means the Family Law Act 19751.
Approval of marriage counselling organisations
3. Section 12 of the Principal Act is amended:
(a) by omitting from subsections (1), (2), (3), (4) and (6) “Attorney-General” (wherever occurring) and substituting “Minister”;
(b) by omitting subsection (7) and substituting the following subsection:
“(7) A list of all organisations approved under this section (other than organisations whose approvals have been revoked) must be published annually in such manner as the Minister considers appropriate.”.
Interpretation
4. Section 60 of the Principal Act is amended by inserting the following definitions:
“ ‘abuse’, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person;
‘de facto relationship’ means the relationship between a man and a woman who live with each other as spouses on a genuine domestic basis although not legally married to each other;
‘member of the Court personnel’ means:
(a) a court counsellor; or
(b) a welfare officer; or
(c) the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; or
(d) the Registrar or a Deputy Registrar of the Family Court of Western Australia;
‘prescribed adopting parent’, in relation to a child, means:
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent;
‘prescribed child welfare authority’, in relation to abuse of a child, means:
(a) where the child is the subject of proceedings under this Part in a State or Territory—an officer of the State or Territory (being an officer responsible for the administration of the child welfare laws of the State or Territory) or other prescribed person; or
(b) where the child is not the subject of proceedings under this Part—an officer of the State or Territory in which the child is located or is believed to be located (being an officer responsible for the administration of the child welfare laws of the State or Territory) or other prescribed person;
(a) rules of professional conduct; and
(b) rules of professional etiquette; and
(c) a code of ethics; and
(d) standards of professional conduct.”.
Certain children are children of marriage etc.
5. Section 60a of the Principal Act is amended by omitting subsection (3) and substituting the following subsections:
“(3) A child of a marriage who is adopted by a person who, before the adoption, is not a prescribed adopting parent ceases to be a child of that marriage for the purposes of this Act.
“(4) The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:
(a) if a court granted leave under section 60aa for the adoption proceedings to be commenced—the child ceases to be a child of the marriage for the purposes of this Act;
(b) in any other case—the child continues to be a child of the marriage for the purposes of this Act.”.
6. After section 60a of the Principal Act the following section is inserted:
Family Court may permit adoption by prescribed adopting parent
“60aa. The Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.”.
Rights of custody and guardianship of children
7. Section 63f of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:
“(4) The following provisions apply in relation to rights of custody or guardianship of a child, or access to a child, existing under this Act immediately before the adoption of the child:.
(a) if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent—those rights cease; or
(b) if the child is adopted by a prescribed adopting parent, where a court granted leave under section 60aa for the adoption proceedings to be commenced—those rights cease; or
(c) if the child is adopted by a prescribed adopting parent and leave was not granted under section 60aa for the adoption proceedings to be commenced—those rights do not cease.”.
Powers of court in custodial proceedings
8. Section 64 of the Principal Act is amended:
(a) by inserting before paragraph (1) (b) the following paragraph:
“(a) the court must regard the welfare of the child as the paramount consideration;”;
(b) by omitting from paragraph (ba) “section 60d and paragraph (b) of this section” and substituting “paragraphs (a) and (b)”;
(c) by inserting after subparagraph (1) (bb) (v) the following subparagraph:
“(va) the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child;”;
(d) by omitting from paragraph (c) “section 60d and paragraphs” and substituting “paragraphs (a),”;
(e) by inserting after subsection (1b) the following subsections:
“(1c) A court must not make an order with the consent of all the parties to the proceedings, being an order placing a child in the guardianship or custody of a person who is not the child’s parent, or 2 or more persons none of whom is the child’s parent, unless:
(a) the requirements of subsection (1d) are satisfied; or
(b) the court is satisfied, having regard to the special circumstances of the proceedings, that it is appropriate to make the order even though the requirements of subsection (1d) are not satisfied.
“(1d) The requirements for the purposes of subsection (1c) are that:
(a) the parties to the proceedings have attended a conference in relation to the proposed guardianship or custody arrangements with a court counsellor or welfare officer; and
(b) the court has considered a report prepared by the court counsellor or welfare officer about the proposed guardianship or custody arrangements.”.
Power of court to require provision of information
9. Section 64a of the Principal Act is amended by omitting subsection (10) and substituting the following subsection:
“(10) Information provided to the Registrar of a court pursuant to this section must not be divulged by the Registrar, or by any other person who has obtained the information because of the provision of the information to the Registrar, except:
(a) to the Registrar of another court; or
(b) to a person to whom the warrant referred to in paragraph (1) (a) or (4) (a) is addressed; or
(c) with leave of the court, to a person who is, under an order made by a court (including a court of a prescribed overseas jurisdiction), entitled to custody of, or access to, the child in relation to whom that warrant was issued, and to a legal practitioner representing that person.”.
Child welfare provisions of registered child agreements
10. Section 66zd of the Principal Act is amended by inserting after subsection (3) the following subsection:
“(3a) Subsections (1) and (3) do not apply to a child agreement (whether registered before or after the commencement of the Family Law Amendment Act 1991) to the extent (if any) that the agreement purports to confer the custody or guardianship of the child concerned upon a person who is not a parent of the child.”.
Child maintenance provisions of registered child agreements—where not enforceable as maintenance agreements
11. Section 66zda of the Principal Act is amended:
(a) by omitting subsection (2) and substituting the following subsection:
“(2) The agreement, in so far as it makes provision in relation to the maintenance of the child, has effect (including for the purposes of section 66n) as if the agreement were an order made by consent under this Part by the court in which the agreement is registered.”;
(b) by adding at the end the following subsection:
“(5) The agreement, so far as it makes provision for the maintenance of the child, has no effect and is not enforceable in any way at any time when an application could properly be made under the Child Support (Assessment) Act 1989 by one of the parties to the agreement for administrative assessment of child support (within the meaning of that Act) for the child, seeking payment of the child support by the other party to the agreement (whether or not such an application has in fact been made by the party or by another person).”.
12. After Division 12 of Part VII of the Principal Act the following Division is inserted:
“Division 12a—Allegations of Child Abuse
Allegation by party to proceedings
“70ba. (1) This section applies where a party to proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.
“(2) The party must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
“(3) Where a notice under subsection (2) is filed in a court, the Registrar must, as soon as practicable, notify a prescribed child welfare authority.
“(4) In this section:
‘prescribed form’ means the form prescribed by the Rules;
‘Registrar’ means:
(a) in relation to the Family Court, or the Family Court of Western Australia—the Registrar, or a Deputy Registrar, of that Court; and
(b) in relation to any other court—the principal officer of that court.
Court personnel who suspect certain child abuse
“70bb. (1) Where a member of the Court personnel, in the course of carrying out duties, performing functions or exercising powers as a member, has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the member must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.
“(2) Where a member of the Court personnel, in the course of carrying out duties, performing functions or exercising powers as a member, has reasonable grounds for suspecting that a child:
(a) has been ill treated, or is at risk of being ill treated; or
(b) has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child;
the member may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.
“(3) A member of the Court personnel need not notify a prescribed child welfare authority of his or her suspicion that a child has been abused, or is at risk of being abused, where the member knows that the authority has previously been notified about the abuse or risk under subsection (1) or subsection 70ba (3), but the member may notify the authority of his or her suspicion.
“(4) Where notice under this section is given orally, written notice confirming the oral notice is to be given to the prescribed child welfare authority as soon as practicable after the oral notice.
“(5) Where a member of the Court personnel notifies a prescribed child welfare authority under this section or subsection 70ba (3), the member may make such disclosures of other information as the member
reasonably believes are necessary to enable the authority to properly manage the matter the subject of the notification.
No liability for notification pursuant to section 70ba or 70bb
“70bc. (1) A member of the Court personnel:
(a) must give notice under subsection 70ba (3) or 70bb (1); or
(b) may give notice under subsection 70bb (2) or (3); or
(c) may disclose other information under subsection 70bb (5);
in spite of any obligation of confidentiality imposed on the member by this Act, another Act, another law or anything else (including a contract or professional ethics).
“(2) A member of the Court personnel is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of a notification under subsection 70ba (3) or 70bb (1).
“(3) A member of the Court personnel is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of a notification under subsection 70bb (2) or (3), or a disclosure under subsection 70bb (5), where the notification or disclosure is made in good faith.
“(4) Evidence of a notification under subsection 70ba (3) or subsection 70bb (1), (2) or (3), or a disclosure under subsection 70bb (5), is not admissible in any court except where that evidence is given by the member who made the notification or disclosure.
“(5) In this section:
‘court’ means a court (whether or not exercising jurisdiction under this Act) and includes a tribunal or other body concerned with professional ethics.”.
13. After section 70e of the Principal Act the following section is inserted in Division 14 of Part VII:
Certain instruments not liable to duty
“70f. (1) The following agreements, deeds and other instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory:
(a) a deed or other instrument executed by a person under, or for the purposes of, an order made under this Part;
(b) an eligible child agreement that confers a benefit in relation to a child, to the extent to which the agreement confers the benefit;
(c) a deed or other instrument:
(i) that is executed by a person under, or for the purposes of, an eligible child agreement; and
(ii) that confers a benefit in relation to a child;
to the extent to which it confers the benefit.
“(2) A child agreement is an eligible child agreement for the purposes of this section if:
(a) it has been registered under section 66zc; and
(b) it is not a maintenance agreement or, if it is a maintenance agreement, it relates to a child who is not a child of the relevant marriage; and
(c) it is a child agreement of either of the following kinds:
(i) a child agreement made in connection with the breakdown of the de facto relationship to which the agreement relates;
(ii) a child agreement (other than a child agreement falling within subparagraph (i)) that relates to a child whose parents were not:
(a) married to each other; or
(b) living with each other in a de facto relationship;
at the time the child was conceived.
“(3) For the purposes of this section, a child agreement, deed or other instrument that confers an entitlement to property in relation to a child may be taken to confer a benefit in relation to the child even though the agreement, deed or other instrument also deprives the child or another person of an entitlement to other property (being property of an equal or greater value) in relation to the child.
“(4) In this section, a reference to the de facto relationship to which a child agreement relates is a reference to the de facto relationship the parties to which are parties to the agreement.”.
14. After section 92 of the Principal Act the following section is inserted in Part IX:
Intervention in child abuse cases
“92a. (1) This section applies to proceedings under this Act in which it has been alleged that a child has been abused or is at risk of being abused.
“(2) Each of the following persons is entitled to intervene in the proceedings:
(a) a guardian of the child;
(b) a person who is entitled to the custody of the child;
(c) a person who is responsible for the daily care and control of the child;
(d) a prescribed child welfare authority;
(e) a person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
“(3) Where a person intervenes in proceedings pursuant to this section, the person is, unless the court otherwise orders, to be taken to be a party to the proceedings with all the rights, duties and liabilities of a party.”.
15. After section 100 of the Principal Act the following section is inserted:
Evidence of children
“100a. (1) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible solely because of the law against hearsay in any proceedings under Part VII.
“(2) A court may give such weight (if any) as it thinks fit to evidence admitted pursuant to subsection (1).
“(3) This section applies in spite of any other Act or rule of law.
“(4) In this section:
‘child’ means a child under 18 years of age;
‘representation’ includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.”.
Protection of witnesses
16. Section 101 of the Principal Act is amended:
(a) by inserting “, abusive” after “insulting”;
(b) by adding at the end the following subsection:
“(2) The court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, or excuse a witness from answering questions asked during such an examination, unless the court is satisfied that it is essential in the interests of justice for the examination to continue or for the questions to be answered.”.
17. After section 102 of the Principal Act the following section is inserted in Part XI:
Restrictions on examination of children
“102a. (1) Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.
“(2) Where a person causes a child to be examined for the purpose of deciding:
(a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or
(b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused;
subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.
“(3) In considering whether to give leave for a child to be examined, the court must have regard to the following matters:
(a) whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;
(b) the qualifications of the person who proposes to conduct the examination to conduct that examination;
(c) whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;
(d) any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings;
(e) any other matter that the court thinks is relevant.
“(4) In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:
(a) the evidence relates to relevant matters on which the evidence already before the court is inadequate; and
(b) the court will not be able to determine the proceedings properly unless the evidence is admitted; and
(c) the welfare of the child concerned is likely to be served by the admission of the evidence.
“(5) In this section:
‘examined’, in relation to a child, means:
(a) subjected to a medical procedure; or
(b) examined or assessed by a psychiatrist or psychologist (other than by a court counsellor or welfare officer).”.
Operation of State and Territory laws
18. Section 114ab of the Principal Act is amended by omitting subsections (2) and (3) and substituting the following subsection:
“(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 70c or 114, the person is not entitled to institute a proceeding under section 70c or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i) the proceeding has lapsed, been discontinued, or been dismissed; or
(ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b) where the person took other action—neither that person nor any other person is required, at the time that the person institutes a proceeding under section 70c or 114, to do an act, or to refrain from doing an act.”.
19. After section 122 of the Principal Act the following section is inserted:
Powers of entry and search for purposes of arresting persons
“122a. (1) Where:
(a) a person (in this subsection called the ‘authorised person’) is, by a provision of this Act, or by a warrant issued under a provision of this Act, authorised to arrest another person; and
(b) the authorised person reasonably believes that the other person is in or on a particular searchable place;
the authorised person may, without warrant, enter and search the searchable place.
“(2) Where a person may enter and search a vehicle, vessel or aircraft under subsection (1), the person may, for the purposes of effecting the entry and search, stop and detain the vehicle, vessel or aircraft.
“(3) In exercising powers under this section, a person may use such force and assistance as is necessary and reasonable to enable the exercise of the powers.
“(4) In this section:
‘searchable place’ means:
(a) premises or a place; or
(b) a vehicle, vessel or aircraft.”
Further amendments
20. The Principal Act is further amended as set out in the Schedule.
____________
SCHEDULE Section 20
FURTHER AMENDMENTS
Section 11:
Omit “Attorney-General” (wherever occurring), substitute “Minister”.
Section 13:
Omit “Attorney-General” (wherever occurring), substitute “Minister”.
Section 60d:
Repeal the section.
Subsection 63 (2):
After “70d”, insert “but not including proceedings for leave under section 60aa”.
Subsection 66d (1):
Omit “sections 60d and 66a”, substitute “section 66a”.
Subsection 66e (1):
Omit “sections 60d, 66a and 66b”, substitute “sections 66a and 66b”.
Subsection 66n (9):
Omit “section 60d,”.
Subsection 66ze (2):
Omit “the provisions of sections 60d and 64”, substitute “section 64”.
Paragraphs 70aa (5) (b), (6) (b) and (6) (c):
After “application” (wherever occurring), insert “, or no longer any application,”.
Subsections 70a (1) and (2):
Omit “$10,000 or imprisonment for 3 years, or both”, substitute “Imprisonment for 3 years”.
Subsections 70a (3), (4), (5) and (6):
Omit the subsections.
Subsections 70b (1) and (2):
Omit “$5,000”, substitute “$6,000”.
SCHEDULE—continued
Paragraph 90 (1) (a):
Omit “or Part VII”.
Paragraph 112ad (2) (b):
Omit the paragraph, substitute the following:
“(b) fine the person not more than:
(i) for a natural person—$6,000; or
(ii) for a body corporate—$30,000;”.
Section 112al:
Omit “an order under Part VII, or”.
Subsection 121 (1):
Omit all words after “punishable,”, substitute “upon conviction by imprisonment for a period not exceeding one year.”.
Subsection 121 (2):
Omit all words after “punishable,”, substitute “upon conviction by imprisonment for a period not exceeding one year.”.
Subsections 121 (6) and (7):
Omit the subsections.
NOTE
1. No. 53, 1975, as amended. For previous amendments, see Nos. 63, 95 and 209, 1976; No. 102, 1977; No. 23, 1979; No. 2, 1982; Nos. 67 and 72, 1983; Nos. 63, 72 and 165, 1984; Nos. 65, 166 and 193, 1985; Nos. 76 and 168, 1986; No. 141, 1987; No. 181, 1987 (as amended by No. 8, 1988); Nos. 8 and 120, 1988; and Nos. 124, 157 and 182, 1989.
[Minister’s second reading speech made in—
House of Representatives on 16 May 1990
Senate on 5 March 1991]