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Family Law Act 1975

  • - C2007C00484
  • In force - Superseded Version
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Act No. 53 of 1975 as amended, taking into account amendments up to Act No. 116 of 2007
An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and certain other Matters
Administered by: Attorney-General's; FaCSIA
Registered 26 Jul 2007
Start Date 26 Jul 2007
End Date 22 Jun 2008
Table of contents.
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Collapse Part I—PreliminaryPart I—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Repeal and saving
4 Interpretation
4A Third party proceedings to set aside financial agreement
5 Debtor subject to a personal insolvency agreement
6 Polygamous marriages
7 Extension of Act to certain Territories
7A Application of the Criminal Code
8 Supersession of existing laws
9 Transitional
Expand Part IA—Protection of namesPart IA—Protection of names
Expand Part II—Non‑court based family servicesPart II—Non‑court based family services
Expand Part III—Family consultantsPart III—Family consultants
Expand Part IIIA—Obligations to inform people about non‑court based family services and about court’s processes and servicesPart IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services
Expand Part IIIB—Court’s powers in relation to court and non‑court based family servicesPart IIIB—Court’s powers in relation to court and non‑court based family services
Expand Part IV—The Family Court of AustraliaPart IV—The Family Court of Australia
Expand Part IVA—Management of the CourtPart IVA—Management of the Court
Expand Part V—Jurisdiction in matrimonial causesPart V—Jurisdiction in matrimonial causes
Expand Part VI—Divorce and nullity of marriagePart VI—Divorce and nullity of marriage
Expand Part VII—ChildrenPart VII—Children
Expand Part VIII—Property, spousal maintenance and maintenance agreementsPart VIII—Property, spousal maintenance and maintenance agreements
Expand Part VIIIAA—Orders and injunctions binding third partiesPart VIIIAA—Orders and injunctions binding third parties
Expand Part VIIIA—Financial agreements Part VIIIA—Financial agreements
Expand Part VIIIB—Superannuation interestsPart VIIIB—Superannuation interests
Expand Part IX—InterventionPart IX—Intervention
Expand Part X—AppealsPart X—Appeals
Expand Part XI—Procedure and evidencePart XI—Procedure and evidence
Expand Part XII—Recognition of decreesPart XII—Recognition of decrees
Expand Part XIII—Enforcement of decreesPart XIII—Enforcement of decrees
Expand Part XIIIAA—International conventions, international agreements and international enforcementPart XIIIAA—International conventions, international agreements and international enforcement
Expand Part XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect childrenPart XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect children
Expand Part XIIIB—Contempt of courtPart XIIIB—Contempt of court
Expand Part XIV—Declarations and injunctionsPart XIV—Declarations and injunctions
Expand Part XIVA—The Australian Institute of Family StudiesPart XIVA—The Australian Institute of Family Studies
Expand Part XV—MiscellaneousPart XV—Miscellaneous
Expand Schedule 1—Child Protection ConventionSchedule 1—Child Protection Convention

Family Law Act 1975

Act No. 53 of 1975 as amended

This compilation was prepared on 26 July 2007
taking into account amendments up to Act No. 116 of 2007

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department,
Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Repeal and saving............................................................................... 1

4............ Interpretation...................................................................................... 2

4A......... Third party proceedings to set aside financial agreement................. 23

5............ Debtor subject to a personal insolvency agreement......................... 24

6............ Polygamous marriages...................................................................... 24

7............ Extension of Act to certain Territories............................................. 24

7A......... Application of the Criminal Code.................................................... 25

8............ Supersession of existing laws........................................................... 25

9............ Transitional....................................................................................... 25

Part IA—Protection of names                                                                                        26

9A......... Use of protected names and symbols............................................... 26

Part II—Non‑court based family services                                                              26

Division 1—Accreditation of family counsellors, family dispute resolution practitioners and other family service providers                                                                                26

10A....... Accreditation Rules.......................................................................... 26

Division 2—Family counselling                                                                             26

10B....... Definition of family counselling........................................................ 26

10C....... Definition of family counsellor......................................................... 26

10D....... Confidentiality of communications in family counselling................ 26

10E........ Admissibility of communications in family counselling and in referrals from family counselling           26

Division 3—Family dispute resolution                                                              26

10F........ Definition of family dispute resolution............................................. 26

10G....... Definition of family dispute resolution practitioner.......................... 26

10H....... Confidentiality of communications in family dispute resolution..... 26

10J........ Admissibility of communications in family dispute resolution and in referrals from family dispute resolution    26

10K....... Family dispute resolution practitioners must comply with regulations  26

Division 4—Arbitration                                                                                             26

10L........ Definition of arbitration................................................................... 26

10M...... Definition of arbitrator.................................................................... 26

10N....... Arbitrators may charge fees for their services.................................. 26

10P........ Immunity of arbitrators.................................................................... 26

Part III—Family consultants                                                                                          26

Division 1—About family consultants                                                                26

11A....... Functions of family consultants....................................................... 26

11B....... Definition of family consultant......................................................... 26

11C....... Admissibility of communications with family consultants and referrals from family consultants         26

11D....... Immunity of family consultants....................................................... 26

Division 2—Courts’ use of family consultants                                              26

11E........ Courts to consider seeking advice from family consultants............. 26

11F........ Court may order parties to attend appointments with a family consultant            26

11G....... Consequences of failure to comply with order under section 11F... 26

Part IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services                                                                                                          26

Division 1—Introduction                                                                                          26

12A....... Objects of this Part........................................................................... 26

Division 2—Kind of information to be provided                                          26

12B....... Prescribed information about non‑court based family services and court’s processes and services       26

12C....... Prescribed information about reconciliation..................................... 26

12D....... Prescribed information about Part VII proceedings.......................... 26

Division 3—Who must provide information, and when                            26

12E........ Obligations on legal practitioners..................................................... 26

12F........ Obligations on principal executive officers of courts....................... 26

12G....... Obligations on family counsellors, family dispute resolution practitioners and arbitrators    26

Part IIIB—Court’s powers in relation to court and non‑court based family services          26

Division 1—Introduction                                                                                          26

13A....... Objects of this Part........................................................................... 26

Division 2—Help with reconciliation                                                                  26

13B....... Court to accommodate possible reconciliations............................... 26

Division 3—Referrals to family counselling, family dispute resolution and other family services          26

13C....... Court may refer parties to family counselling, family dispute resolution and other family services      26

13D....... Consequences of failure to comply with order under section 13C... 26

Division 4—Court’s role in relation to arbitration of disputes             26

13E........ Court may refer Part VIII proceedings to arbitration....................... 26

13F........ Court may make orders to facilitate arbitration of certain disputes. 26

13G....... Family Court and Federal Magistrates Court may determine questions of law referred by arbitrator   26

13H....... Awards made in arbitration may be registered in court.................... 26

13J........ Family Court or Federal Magistrates Court can review registered awards              26

13K....... Family Court and Federal Magistrates Court may set aside registered awards       26

Part IV—The Family Court of Australia                                                                  26

Division 1—Interpretation                                                                                       26

20.......... Interpretation.................................................................................... 26

Division 2—The Family Court of Australia                                                     26

21.......... Creation of Court.............................................................................. 26

21A....... Divisions of Court............................................................................ 26

21B....... Arrangement of business of Court.................................................... 26

Division 3—Judges                                                                                                      26

22.......... Appointment, removal and resignation of Judges............................ 26

23.......... Seniority........................................................................................... 26

24.......... Absence or illness of Chief Judge..................................................... 26

25.......... Salary and Allowances...................................................................... 26

26.......... Oath or affirmation of allegiance and office...................................... 26

Division 4—Judicial Registrars                                                                            26

26A....... Judicial Registrars............................................................................. 26

26B....... Powers of Judicial Registrars............................................................ 26

26C....... Review of decisions of Judicial Registrars........................................ 26

26D....... Exercise of delegated powers by Court............................................ 26

26E........ Application of the Legislative Instruments Act 2003 to rules of court 26

26F........ Independence of Judicial Registrars.................................................. 26

26G....... Judicial Registrars hold office on full time or part time basis........... 26

26H....... Qualifications for appointment etc................................................... 26

26I......... Term of office................................................................................... 26

26J........ Remuneration and allowances........................................................... 26

26JA..... Leave of absence............................................................................... 26

26K....... Resignation....................................................................................... 26

26L........ Termination of appointment............................................................ 26

26M...... Oath or affirmation of office............................................................. 26

26N....... Terms and conditions of appointment not provided for by Act...... 26

Division 5—Jurisdiction and exercise of jurisdiction                                26

27.......... Place of sitting.................................................................................. 26

27A....... Change of venue................................................................................ 26

28.......... Exercise of jurisdiction...................................................................... 26

30.......... Court divided in opinion................................................................... 26

31.......... Original jurisdiction of Family Court............................................... 26

33.......... Jurisdiction in associated matters..................................................... 26

33A....... Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Magistrates Court.......................................................................................................... 26

33B....... Discretionary transfer of proceedings to the Federal Magistrates Court                26

33C....... Mandatory transfer of proceedings to the Federal Magistrates Court 26

34.......... Issue of certain writs etc................................................................... 26

35.......... Contempt of court............................................................................ 26

Division 6—Registries and officers                                                                    26

36.......... Registries.......................................................................................... 26

37.......... Officers of Court.............................................................................. 26

37A....... Delegation of powers to Registrars.................................................. 26

37B....... Independence of Registrars............................................................... 26

37C....... Oath or affirmation of office............................................................. 26

Division 7—Practice and procedure                                                                   26

38.......... Practice and procedure...................................................................... 26

Part IVA—Management of the Court                                                                       26

Division 1—Management responsibilities of the Chief Judge and the Chief Executive Officer             26

38A....... Management of administrative affairs of Court................................ 26

38B....... Chief Executive Officer..................................................................... 26

Division 1A—Administration of Court’s family services                        26

38BA.... Chief Executive Officer has functions of family consultants........... 26

38BB..... Chief Executive Officer may delegate powers and functions that relate to family consultants               26

38BC..... Chief Executive Officer may give directions that relate to family services functions              26

38BD.... Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner....................................................................................... 26

Division 2—Appointment, powers etc. of Chief Executive Officer   26

38C....... Appointment of Chief Executive Officer......................................... 26

38D....... Powers of Chief Executive Officer................................................... 26

38E........ Remuneration of Chief Executive Officer......................................... 26

38F........ Terms and conditions of appointment of Chief Executive Officer... 26

38G....... Leave of absence............................................................................... 26

38H....... Resignation....................................................................................... 26

38J........ Outside employment of Chief Executive Officer............................. 26

38K....... Termination of appointment............................................................ 26

38L........ Disclosure of interests by Chief Executive Officer.......................... 26

38M...... Acting Chief Executive Officer......................................................... 26

Division 3—Other officers and staff of Registries                                      26

38N....... Personnel other than the Chief Executive Officer............................. 26

38P........ Marshal............................................................................................. 26

38Q....... Statutory Agency etc. for purposes of Public Service Act.............. 26

38R....... Engagement of consultants etc.......................................................... 26

Division 4—Miscellaneous administrative matters                                   26

38S........ Annual report................................................................................... 26

38W...... Delegation of administrative powers of Chief Judge........................ 26

38X....... Proceedings arising out of administration of Court.......................... 26

Part V—Jurisdiction in matrimonial causes                                                           26

39.......... Jurisdiction in matrimonial causes.................................................... 26

40.......... Jurisdiction of Family Court............................................................ 26

40A....... Exercise of jurisdiction of Federal Magistrates Court in certain States and Territories           26

41.......... Establishment of State Family Courts.............................................. 26

42.......... Law to be applied............................................................................. 26

43.......... Principles to be applied by courts.................................................... 26

44.......... Institution of proceedings................................................................. 26

44A....... Proceedings for divorce order........................................................... 26

45.......... Stay and transfer of proceedings...................................................... 26

46.......... Transfer of proceedings from court of summary jurisdiction in certain cases         26

47.......... Courts to act in aid of each other...................................................... 26

Part VI—Divorce and nullity of marriage                                                               26

48.......... Divorce............................................................................................. 26

49.......... Meaning of separation...................................................................... 26

50.......... Effect of resumption of cohabitation................................................ 26

51.......... Nullity of marriage............................................................................ 26

52.......... Court not to make divorce order where application for decree of nullity before it 26

53.......... Circumstances occurring before commencement of Act or outside Australia          26

55.......... When divorce order takes effect....................................................... 26

55A....... Divorce order where children............................................................ 26

56.......... Certificate as to divorce order........................................................... 26

57.......... Rescission of divorce order where parties reconciled....................... 26

58.......... Rescission of divorce order on ground of miscarriage of justice....... 26

59.......... Re‑marriage....................................................................................... 26

Part VII—Children                                                                                                               26

Division 1—Introductory                                                                                          26

Subdivision A—What this Division does                                                              26

60A....... What this Division does................................................................... 26

Subdivision B—Object, principles and outline                                                    26

60B....... Objects of Part and principles underlying it..................................... 26

60C....... Outline of Part.................................................................................. 26

Subdivision BA—Best interests of the child                                                        26

60CA.... Child’s best interests paramount consideration in making a parenting order          26

60CB..... Proceedings to which Subdivision applies........................................ 26

60CC..... How a court determines what is in a child’s best interests.............. 26

60CD.... How the views of a child are expressed............................................ 26

60CE..... Children not required to express views............................................ 26

60CF..... Informing court of relevant family violence orders........................... 26

60CG.... Court to consider risk of family violence......................................... 26

Subdivision C—Interpretation and application of Part                                       26

60E........ Application of Part to void marriages.............................................. 26

Subdivision D—Interpretation—how this Act applies to certain children     26

60F........ Certain children are children of marriage etc..................................... 26

60G....... Family Court may grant leave for adoption proceedings by prescribed adopting parent       26

60H....... Children born as a result of artificial conception procedures........... 26

Subdivision E—Family dispute resolution                                                            26

60I......... Attending family dispute resolution before applying for Part VII order 26

60J........ Family dispute resolution not attended because of child abuse or family violence 26

60K....... Court to take prompt action in relation to allegations of child abuse or family violence        26

Division 2—Parental responsibility                                                                     26

61A....... What this Division does................................................................... 26

61B....... Meaning of parental responsibility................................................... 26

61C....... Each parent has parental responsibility (subject to court orders).... 26

61D....... Parenting orders and parental responsibility.................................... 26

61DA.... Presumption of equal shared parental responsibility when making parenting orders             26

61DB.... Application of presumption of equal shared parental responsibility after interim parenting order made              26

61E........ Effect of adoption on parental responsibility.................................. 26

61F........ Application to Aboriginal or Torres Strait Islander children............ 26

Division 3—Reports relating to children under 18                                    26

62A....... What this Division does................................................................... 26

62B....... Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services................................................. 26

62G....... Reports by family consultants......................................................... 26

Division 4—Parenting plans                                                                                    26

63A....... What this Division does................................................................... 26

63B....... Parents encouraged to reach agreement............................................. 26

63C....... Meaning of parenting plan and related terms................................... 26

63CAA. Parenting plans may include child support provisions.................... 26

63D....... Parenting plan may be varied or revoked by further written agreement  26

63DA.... Obligations of advisers..................................................................... 26

63DB.... Registered parenting plans................................................................ 26

63E........ Registration of a revocation of a registered parenting plan............... 26

63F........ Child welfare provisions of registered parenting plans.................... 26

63G....... Child maintenance provisions of registered parenting plans—where not enforceable as maintenance agreements 26

63H....... Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans   26

Division 5—Parenting orders—what they are                                               26

64A....... What this Division does................................................................... 26

64B....... Meaning of parenting order and related terms................................. 26

64C....... Parenting orders may be made in favour of parents or other persons 26

64D....... Parenting orders subject to later parenting plans.............................. 26

Division 6—Parenting orders other than child maintenance orders 26

Subdivision A—Introductory                                                                                   26

65A....... What this Division does................................................................... 26

65AA.... Child’s best interests paramount consideration in making a parenting order          26

65B....... Division does not apply to child maintenance orders...................... 26

Subdivision B—Applying for and making parenting orders                             26

65C....... Who may apply for a parenting order.............................................. 26

65D....... Court’s power to make parenting order........................................... 26

65DAA. Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.................................................................................... 26

65DAB. Court to have regard to parenting plans........................................... 26

65DAC. Effect of parenting order that provides for shared parental responsibility             26

65DAE.. No need to consult on issues that are not major long‑term issues.... 26

65DA.... Parenting orders................................................................................ 26

65F........ General requirements for counselling before parenting order made.. 26

65G....... Special conditions for making parenting order about whom a child lives with or the allocation of parental responsibility by consent in favour of non‑parent.................................................. 26

65H....... Children who are 18 or over or who have married or entered de facto relationships               26

65J........ Effect of adoption on parenting order.............................................. 26

65K....... What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives............................................. 26

65L........ Family consultants may be required to supervise or assist compliance with parenting orders               26

65LA..... Court may order attendance at a post‑separation parenting program 26

65LB..... Conditions for providers of post‑separation parenting programs.... 26

Subdivision C—General obligations created by certain parenting orders     26

65M...... General obligations created by parenting order that deals with whom a child lives with        26

65N....... General obligations created by parenting order that deals with whom a child spends time with            26

65NA.... General obligations created by parenting order that deals with whom a child communicates with         26

65P........ General obligations created by parenting order that allocates parental responsibility            26

65Q....... Court may issue warrant for arrest of alleged offender.................... 26

Subdivision D—Dealing with people who have been arrested                           26

65R....... Situation to which Subdivision applies............................................ 26

65S........ Arrested person to be brought before a court................................... 26

65T....... Obligation of court—where application before it to deal with contravention         26

65U....... Obligation of court—where no application before it, but application before another court, to deal with contravention.......................................................................................................... 26

65V....... Obligation of court—where no application before any court to deal with contravention       26

65W...... Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b)      26

Subdivision E—Obligations under parenting orders relating to taking or sending children from Australia              26

65X....... Interpretation.................................................................................... 26

65Y....... Obligations if certain parenting orders have been made.................... 26

65Z....... Obligations if proceedings for the making of certain parenting orders are pending 26

65ZA.... Obligations of owners etc. of aircraft and vessels if certain parenting orders made                26

65ZB..... Obligations of owners etc. of aircraft and vessels if proceedings for the making of certain parenting orders are pending.......................................................................................................... 26

65ZC..... General provisions applicable to sections 65ZA and 65ZB............ 26

65ZD.... State or Territory laws stopping children leaving Australia not affected                26

Division 7—Child maintenance orders                                                             26

Subdivision A—What this Division does                                                              26

66A....... What this Division does................................................................... 26

Subdivision B—Objects and principles                                                                 26

66B....... Objects.............................................................................................. 26

66C....... Principles—parents have primary duty to maintain........................ 26

66D....... Principles—when step‑parents have a duty to maintain................. 26

Subdivision C—Relationship with Child Support (Assessment) Act              26

66E........ Child maintenance order not to be made etc. if application for administrative assessment of child support could be made.................................................................................................. 26

Subdivision D—Applying for and making child maintenance orders             26

66F........ Who may apply for a child maintenance order................................. 26

66G....... Court’s power to make child maintenance order.............................. 26

66H....... Approach to be taken in proceedings for child maintenance order... 26

66J........ Matters to be taken into account in considering financial support necessary for maintenance of child  26

66K....... Matters to be taken into account in determining contribution that should be made by party etc.          26

66L........ Children who are 18 or over............................................................. 26

66M...... When step‑parents have a duty to maintain..................................... 26

66N....... Determining financial contribution of step‑parent........................... 26

Subdivision E—Other aspects of courts’ powers                                                 26

66P........ General powers of court................................................................... 26

66Q....... Urgent child maintenance orders....................................................... 26

66R....... Specification in orders of payments etc. for child maintenance purposes               26

66S........ Modification of child maintenance orders........................................ 26

Subdivision EA—Varying the maintenance of certain children                       26

66SA..... Varying the maintenance of certain children..................................... 26

Subdivision F—When child maintenance orders stop being in force              26

66T....... Effect of child turning 18.................................................................. 26

66U....... Effect of death of child, person liable to pay or person entitled to receive             26

66V....... Effect of adoption, marriage or entering into a de facto relationship 26

66VA.... Children who are 18 or over: change of circumstances..................... 26

66W...... Recovery of arrears........................................................................... 26

Subdivision G—Recovery of amounts paid under maintenance orders           26

66X....... Recovery of amounts paid, and property transferred or settled, under maintenance orders   26

Division 8—Other matters relating to children                                            26

Subdivision A—What this Division does                                                              26

67A....... What this Division does................................................................... 26

Subdivision B—Father’s liability to contribute towards child bearing expenses if not married to mother    26

67B....... Father liable to contribute towards maintenance and expenses of mother               26

67C....... Matters to be taken into account in proceedings under Subdivision 26

67D....... Powers of court in proceedings under Subdivision........................... 26

67E........ Urgent orders.................................................................................... 26

67F........ Who may institute proceedings........................................................ 26

67G....... Time limit for institution of proceedings.......................................... 26

Subdivision C—Location and recovery of children                                             26

67J........ Meaning of location order and Commonwealth information order.. 26

67K....... Who may apply for a location order................................................ 26

67L........ Child’s best interests paramount consideration in making a location order             26

67M...... Provisions about location orders, other than Commonwealth information orders  26

67N....... Provisions about Commonwealth information orders...................... 26

67P........ Information provided under location order not to be disclosed except to limited persons      26

67Q....... Meaning of recovery order............................................................... 26

67R....... How recovery orders authorise or direct people.............................. 26

67S........ How recovery orders to stop and search etc. name or describe vehicles, places etc.              26

67T....... Who may apply for a recovery order............................................... 26

67U....... Court’s power to make recovery order............................................ 26

67V....... Child’s best interests paramount consideration in making a recovery order           26

67W...... How long recovery order remains in force........................................ 26

67X....... Persons not to prevent or hinder taking of action under recovery order 26

67Y....... Obligation to notify persons of child’s return.................................. 26

Subdivision D—Allegations of child abuse                                                           26

67Z....... Where party to proceedings makes allegation of child abuse........... 26

67ZA.... Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc................................................................................... 26

67ZB..... No liability for notification under section 67Z or 67ZA.................. 26

Subdivision E—Other orders about children                                                       26

67ZC..... Orders relating to welfare of children............................................... 26

67ZD.... Orders for delivery of passports...................................................... 26

Division 9—Injunctions                                                                                             26

68A....... What this Division does................................................................... 26

68B....... Injunctions........................................................................................ 26

68C....... Powers of arrest................................................................................ 26

Division 10—Independent representation of child’s interests            26

68L........ Court order for independent representation of child’s interests...... 26

68LA..... Role of independent children’s lawyer............................................. 26

68M...... Order that child be made available for examination.......................... 26

Division 11—Family violence                                                                                 26

68N....... Purposes of this Division................................................................. 26

68P........ Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order........................................................................ 26

68Q....... Relationship of order or injunction made under this Act with existing inconsistent family violence order            26

68R....... Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act............................................................... 26

68S........ Application of Act and Rules when exercising section 68R power. 26

68T....... Special provisions relating to proceedings to make an interim (or interim variation of) family violence order       26

Division 12—Proceedings and jurisdiction                                                     26

Subdivision A—What this Division does                                                              26

69A....... What this Division does................................................................... 26

Subdivision B—Institution of proceedings and procedure                                26

69B....... Certain proceedings to be instituted only under this Part................ 26

69C....... Who may institute proceedings........................................................ 26

69D....... Institution of maintenance proceedings by authorised authority or person            26

69E........ Child or parent to be present in Australia etc.................................. 26

69F........ Applicant may be in contempt......................................................... 26

Subdivision C—Jurisdiction of courts                                                                  26

69G....... Interpretation.................................................................................... 26

69H....... Jurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Magistrates Court.......................................................................................................... 26

69J........ Jurisdiction of courts of summary jurisdiction................................. 26

69K....... Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory           26

69L........ Jurisdiction in relation to transferred matters under other Commonwealth laws    26

69M...... Jurisdiction is additional to other jurisdiction.................................. 26

69N....... Transfer of proceedings from courts of summary jurisdiction in certain cases       26

Subdivision D—Presumptions of parentage                                                         26

69P........ Presumptions of parentage arising from marriage............................. 26

69Q....... Presumption of paternity arising from cohabitation........................ 26

69R....... Presumption of parentage arising from registration of birth............. 26

69S........ Presumptions of parentage arising from findings of courts.............. 26

69T....... Presumption of paternity arising from acknowledgments................ 26

69U....... Rebuttal of presumptions etc........................................................... 26

Subdivision E—Parentage evidence                                                                       26

69V....... Evidence of parentage....................................................................... 26

69VA.... Declarations of parentage................................................................. 26

69W...... Orders for carrying out of parentage testing procedures.................. 26

69X....... Orders associated with parentage testing orders.............................. 26

69XA.... Matters related particularly to parentage testing for purposes of an international agreement or arrangement       26

69Y....... Orders directed to persons 18 or over.............................................. 26

69Z....... Orders directed to children under 18................................................ 26

69ZA.... No liability if parent etc. consents................................................... 26

69ZB..... Regulations about carrying out, and reporting on, parentage testing procedures    26

69ZC..... Reports of information obtained may be received in evidence......... 26

69ZD.... Parentage testing for purposes of international maintenance agreements                26

Subdivision F—Extension, application and additional operation of Part         26

69ZE..... Extension of Part to the States......................................................... 26

69ZF..... Unless declaration in force, Part’s extension to a State has effect subject to modifications    26

69ZG.... Application of Part in, and in relation to, Territories....................... 26

69ZH.... Additional application of Part.......................................................... 26

69ZJ...... Additional jurisdiction of courts....................................................... 26

69ZK.... Child welfare laws not affected........................................................ 26

Division 12A—Principles for conducting child‑related proceedings 26

Subdivision A—Proceedings to which this Division applies                             26

69ZM... Proceedings to which this Division applies...................................... 26

Subdivision B—Principles for conducting child‑related proceedings            26

69ZN.... Principles for conducting child‑related proceedings......................... 26

69ZO.... This Division also applies to proceedings in Chambers................... 26

69ZP..... Powers under this Division may be exercised on court’s own initiative 26

Subdivision C—Duties and powers related to giving effect to the principles 26

69ZQ.... General duties................................................................................... 26

69ZR..... Power to make determinations, findings and orders at any stage of proceedings    26

69ZS..... Use of family consultants................................................................. 26

Subdivision D—Matters relating to evidence                                                       26

69ZT..... Rules of evidence not to apply unless court decides........................ 26

69ZU.... Evidence of family consultants......................................................... 26

69ZV..... Evidence of children.......................................................................... 26

69ZW.... Evidence relating to child abuse or family violence.......................... 26

69ZX.... Court’s general duties and powers relating to evidence.................... 26

Division 13—State, Territory and overseas orders                                   26

Subdivision A—What this Division does                                                              26

70A....... What this Division does................................................................... 26

Subdivision B—Registration of State and Territory orders                             26

70C....... General registration of orders made under law of prescribed State.. 26

70D....... Registration of orders in a particular State....................................... 26

70E........ Effect of registration......................................................................... 26

Subdivision C—Registration of overseas orders                                                26

70G....... Registration of orders....................................................................... 26

70H....... Effect of registration—general.......................................................... 26

70J........ Effect of registration on exercise of jurisdiction............................... 26

70K....... Cancellation of registration if Subdivision C parenting order made.. 26

70L........ Relationship between Australian orders and registered overseas child orders         26

Subdivision D—Transmission of Australian orders to overseas jurisdictions 26

70M...... Registrar to send documents etc. to overseas jurisdiction................ 26

70N....... Regulations may deal with sending Australian orders etc. to overseas jurisdiction 26

Division 13A—Consequences of failure to comply with orders, and other obligations, that affect children                                                                                                                      26

Subdivision A—Preliminary                                                                                   26

70NAA. Simplified outline of Division........................................................... 26

70NAB. Application of Division.................................................................... 26

70NAC. Meaning of contravened an order..................................................... 26

70NAD. Requirements taken to be included in certain orders........................ 26

70NAE.. Meaning of reasonable excuse for contravening an order................ 26

70NAF.. Standard of proof.............................................................................. 26

Subdivision B—Court’s power to vary parenting order                                     26

70NBA. Variation of parenting order.............................................................. 26

70NBB.. Effect of parenting plan.................................................................... 26

Subdivision C—Contravention alleged but not established                               26

70NCA. Application of Subdivision............................................................... 26

70NCB.. Costs................................................................................................. 26

Subdivision D—Contravention established but reasonable excuse for contravention        26

70NDA. Application of Subdivision............................................................... 26

70NDB. Order compensating person for time lost......................................... 26

70NDC. Costs................................................................................................. 26

Subdivision E—Contravention without reasonable excuse (less serious contravention)   26

70NEA.. Application of Subdivision............................................................... 26

70NEB.. Powers of court................................................................................ 26

70NEC.. Bonds................................................................................................ 26

70NED.. Duties of provider of post‑separation parenting program............... 26

70NEF.. Evidence............................................................................................ 26

70NEG.. Court may make further orders in relation to attendance at program 26

Subdivision F—Contravention without reasonable excuse (more serious contravention) 26

70NFA.. Application of Subdivision............................................................... 26

70NFB.. Powers of court................................................................................ 26

70NFC.. When court is empowered to make a community service order....... 26

70NFD.. Variation and discharge of community service orders...................... 26

70NFE.. Bonds................................................................................................ 26

70NFF.. Procedure for enforcing community service orders or bonds........... 26

70NFG.. Sentences of imprisonment............................................................... 26

70NFH.. Relationship between Subdivision and other laws........................... 26

70NFI... Arrangements with States and Territories for carrying out of sentences and orders               26

70NFJ... Subdivision does not limit operation of section 105........................ 26

Division 14—Miscellaneous                                                                                   26

70P........ What this Division does................................................................... 26

70Q....... Certain instruments not liable to duty.............................................. 26

Part VIII—Property, spousal maintenance and maintenance agreements                26

71.......... Interpretation.................................................................................... 26

71A....... This Part does not apply to certain matters covered by binding financial agreements            26

72.......... Right of spouse to maintenance........................................................ 26

74.......... Power of court in spousal maintenance proceedings........................ 26

75.......... Matters to be taken into consideration in relation to spousal maintenance             26

77.......... Urgent spousal maintenance cases.................................................... 26

77A....... Specification in orders of payments etc. for spouse maintenance purposes           26

78.......... Declaration of interests in property................................................. 26

79.......... Alteration of property interests....................................................... 26

79A....... Setting aside of orders altering property interests............................ 26

79B....... Notification of proceeds of crime orders etc.................................... 26

79C....... Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.                26

79D....... Lifting a stay..................................................................................... 26

79E........ Intervention by DPP........................................................................ 26

79F........ Notifying third parties about application......................................... 26

79G....... Notifying bankruptcy trustee etc. about application under section 74, 78, 79 or 79A           26

79H....... Notifying court about bankruptcy etc.............................................. 26

79J........ Notifying non‑bankrupt spouse about application under section 139A of the Bankruptcy Act 1966    26

80.......... General powers of court................................................................... 26

81.......... Duty of court to end financial relations............................................ 26

82.......... Cessation of spousal maintenance orders......................................... 26

83.......... Modification of spousal maintenance orders.................................... 26

85A....... Ante‑nuptial and post‑nuptial settlements...................................... 26

86A....... Certain maintenance agreements ineffective..................................... 26

86.......... Registered maintenance agreements.................................................. 26

87.......... Operation of maintenance agreements entered into in substitution for rights under Act        26

87A....... Specification in maintenance agreements of payments etc. for maintenance purposes           26

88.......... Enforcement of maintenance agreements.......................................... 26

89.......... Overseas maintenance agreements.................................................... 26

89A....... Institution of spousal maintenance proceedings by authority or person                26

90.......... Certain instruments not liable to duty.............................................. 26

Part VIIIAA—Orders and injunctions binding third parties                         26

Division 1—Preliminary                                                                                            26

Subdivision A—Scope of this Part                                                                         26

90AA.... Object of this Part............................................................................ 26

90AB.... Definitions........................................................................................ 26

90AC.... This Part overrides other laws, trust deeds etc................................ 26

90ACA. This Part not to apply to certain annuities...................................... 26

90AD.... Extended meaning of matrimonial cause and property..................... 26

90ADA. Other provisions of this Act not affected by this Part.................... 26

Division 2—Orders under section 79                                                                26

90AE..... Court may make an order under section 79 binding a third party.... 26

Division 3—Orders or injunctions under section 114                              26

90AF..... Court may make an order or injunction under section 114 binding a third party    26

Division 4—Other matters                                                                                      26

90AG.... Orders and injunctions binding on trustees...................................... 26

90AH.... Protection for a third party.............................................................. 26

90AI...... Service of documents on a third party.............................................. 26

90AJ..... Expenses of third party.................................................................... 26

90AK.... Acquisition of property................................................................... 26

Part VIIIA—Financial agreements                                                                             26

90A....... Definitions........................................................................................ 26

90B....... Financial agreements before marriage................................................ 26

90C....... Financial agreements during marriage................................................ 26

90D....... Financial agreements after divorce order is made.............................. 26

90DA.... Need for separation declaration for certain provisions of financial agreement to take effect  26

90E........ Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children............................................................................................. 26

90F........ Certain provisions in agreements...................................................... 26

90G....... When financial agreements are binding............................................. 26

90H....... Effect of death of party to financial agreement................................ 26

90J........ Termination of financial agreement................................................... 26

90K....... Circumstances in which court may set aside a financial agreement or termination agreement 26

90KA.... Validity, enforceability and effect of financial agreements and termination agreements          26

90L........ Financial and other agreements etc. not liable to duty...................... 26

90M...... Notification of proceeds of crime orders etc.................................... 26

90N....... Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.                26

90P........ Lifting a stay..................................................................................... 26

90Q....... Intervention by DPP........................................................................ 26

Part VIIIB—Superannuation interests                                                                     26

Division 1—Preliminary                                                                                            26

Subdivision A—Scope of this Part                                                                         26

90MA... Object of this Part............................................................................ 26

90MB... This Part overrides other laws, trust deeds etc................................ 26

90MC... Extended meaning of matrimonial cause.......................................... 26

Subdivision B—Interpretation                                                                                26

90MD... Definitions........................................................................................ 26

90MDA Extended meaning of trustee............................................................. 26

90ME.... Splittable payments.......................................................................... 26

90MF.... Reversionary interest........................................................................ 26

90MG... Meaning of in force........................................................................... 26

Division 2—Payment splitting or flagging by agreement                        26

Subdivision A—Superannuation agreements                                                      26

90MH... Superannuation agreement to be included in financial agreement..... 26

Subdivision B—Payment splitting                                                                         26

90MI..... Operative time for payment split..................................................... 26

90MJ.... Payment split under superannuation agreement or flag lifting agreement                26

Subdivision C—Payment flagging                                                                         26

90MK... Operative time for payment flag...................................................... 26

90ML.... Payment flag..................................................................................... 26

90MLA. Some splittable payments payable if payment flag operating......... 26

90MM.. Payment flag may be terminated by court........................................ 26

90MN... Flag lifting agreement etc.................................................................. 26

Subdivision D—Miscellaneous                                                                               26

90MO... Limitation on section 79 order.......................................................... 26

90MP.... Separation declaration....................................................................... 26

90MQ... Superannuation interests in excess of low rate cap amount............. 26

90MR... Enforcement by court order.............................................................. 26

Division 3—Payment splitting or flagging by court order                       26

90MS.... Order under section 79 may include orders in relation to superannuation interests                26

90MT... Splitting order................................................................................... 26

90MU... Flagging order.................................................................................... 26

90MUA Some splittable payments may be made without leave of court...... 26

Division 4—General provisions about payment splitting                        26

90MV... Court may cancel payment split...................................................... 26

90MW.. Deductions from splittable payment before calculating payment split.. 26

90MX... Multiple payment splits applying to the same splittable payment 26

90MY... Fees payable to trustee..................................................................... 26

90MZ... Superannuation preservation requirements...................................... 26

90MZA Waiver of rights under payment split............................................... 26

90MZB. Trustee to provide information........................................................ 26

90MZC. Death of non‑member spouse........................................................... 26

Division 5—Miscellaneous                                                                                      26

90MZD Orders binding on trustee................................................................. 26

90MZE. Protection for trustee........................................................................ 26

90MZF. Service of documents on trustee....................................................... 26

90MZG False declarations.............................................................................. 26

90MZH Terminating employment because of payment flag etc.................... 26

Part IX—Intervention                                                                                                         26

91.......... Intervention by Attorney‑General................................................... 26

91A....... Delegation by Attorney‑General...................................................... 26

91B....... Intervention by child welfare officer................................................ 26

92.......... Intervention by other persons.......................................................... 26

92A....... Intervention in child abuse cases...................................................... 26

Part X—Appeals                                                                                                                    26

93.......... No appeal after divorce order takes effect........................................ 26

93A....... Appellate jurisdiction of Family Court............................................ 26

94.......... Appeals to Family Court from courts other than the Federal Magistrates Court and the Magistrates Court of Western Australia........................................................................................... 26

94AAA. Appeals to Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia  26

94AAB. Appeals, and applications for leave, without oral hearing............... 26

94AA.... Leave to appeal needed in some cases.............................................. 26

94A....... Case stated........................................................................................ 26

95.......... Appeals to High Court..................................................................... 26

96.......... Appeals from courts of summary jurisdiction................................. 26

96AA.... Power to dismiss appeal................................................................... 26

96A....... Part does not apply to section 111C jurisdiction............................. 26

Part XI—Procedure and evidence                                                                               26

Division 1—General matters concerning procedure and evidence   26

97.......... Procedure.......................................................................................... 26

98.......... Evidence by affidavit........................................................................ 26

98A....... Proceedings in absence of parties..................................................... 26

100........ Evidence of husbands and wives...................................................... 26

100B..... Children swearing affidavits, being called as witnesses or being present in court   26

100C..... Evidence in respect of which a child is a protected confider............ 26

101........ Protection of witnesses.................................................................... 26

102........ Proof of birth, parentage, death or marriage..................................... 26

102A..... Restrictions on examination of children............................................ 26

102B..... Assessors.......................................................................................... 26

Division 2—Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.                                  26

102C..... Testimony........................................................................................ 26

102D..... Appearance of persons..................................................................... 26

102E...... Making of submissions..................................................................... 26

102F...... Conditions for use of links............................................................... 26

102G..... Putting documents to a person......................................................... 26

102H..... Putting documents to a split court................................................... 26

102J...... Administration of oaths and affirmations......................................... 26

102K..... Expenses........................................................................................... 26

102L...... New Zealand proceedings................................................................. 26

Division 3—Split court                                                                                               26

102M.... Determination that there is to be a split court.................................. 26

102N..... Conditions for split court................................................................. 26

Part XII—Recognition of decrees                                                                               26

103........ Decrees under this Act..................................................................... 26

104........ Overseas decrees............................................................................... 26

104A..... Recognition in external Territories.................................................... 26

Part XIII—Enforcement of decrees                                                                           26

105........ Enforcement generally...................................................................... 26

106........ Maintenance orders—more than 12 months in arrears..................... 26

106A..... Execution of instruments by order of court...................................... 26

106B..... Transactions to defeat claims........................................................... 26

107........ People not to be imprisoned for failure to comply with certain orders.. 26

109........ Inter‑State enforcement of child bearing expenses order.................. 26

109A..... Rules of Court relating to enforcement............................................. 26

109B..... Rules of Court relating to enforcement—Federal Magistrates Court 26

Part XIIIAA—International conventions, international agreements and international enforcement         26

Division 1—International maintenance orders and agreements etc. 26

110........ Overseas enforcement of maintenance orders etc............................. 26

110A..... Registration and enforcement in Australia of overseas maintenance agreements etc.              26

110B..... Transmission of agreements etc. to overseas jurisdictions............... 26

111........ Convention on Recovery Abroad of Maintenance........................... 26

111A..... Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations         26

111AA.. Maintenance obligations with New Zealand.................................... 26

111AB.. Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations........................ 26

Division 2—International child abduction                                                       26

111B..... Convention on the Civil Aspects of International Child Abduction 26

Division 3—International agreements about adoption etc.                    26

111C..... International agreements about adoption etc.................................... 26

Division 4—International protection of children                                         26

Subdivision A—Preliminary                                                                                   26

111CA.. Definitions........................................................................................ 26

111CB... Relationship between this Division and other provisions................ 26

Subdivision B—Jurisdiction for the person of a child                                       26

111CC... Application of this Subdivision........................................................ 26

111CD.. Jurisdiction relating to the person of a child..................................... 26

111CE... Limitation when a child is wrongfully removed from or retained outside a Convention country           26

111CF... Limitations when prior proceedings pending in a Convention country.. 26

111CG.. If a court is asked to assume jurisdiction.......................................... 26

111CH.. Limitation if a competent authority of a Convention country is asked to assume jurisdiction               26

111CI.... When a certain Commonwealth personal protection measure lapses 26

Subdivision C—Jurisdiction for decisions about a guardian of a child’s property             26

111CJ.... Application of this Subdivision........................................................ 26

111CK.. Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property          26

111CL... Limitation when a child is wrongfully removed from or retained outside a Convention country           26

111CM. Limitations when prior proceedings pending in a Convention country.. 26

111CN.. If a court is asked to assume jurisdiction.......................................... 26

111CO.. Limitation if a competent authority of a Convention country is asked to assume jurisdiction               26

111CP... When a certain Commonwealth property protection measure lapses 26

Subdivision D—Applicable law                                                                               26

111CQ.. Meaning of law................................................................................. 26

111CR... Applicable law generally.................................................................. 26

111CS... Applicable law concerning parental responsibility.......................... 26

Subdivision E—Recognition of foreign measures                                               26

111CT... Effect of registered foreign measures................................................ 26

Subdivision F—Co‑operation                                                                                   26

111CU.. Obligation to obtain consent to place child...................................... 26

111CV... Obligation to inform competent authority about serious danger to a child             26

111CW.. Court proceedings dealing with whom a child spends time with..... 26

111CX.. Jurisdiction for a location order or a Commonwealth information order 26

111CY... Giving information to central authorities and competent authorities in Convention countries               26

Subdivision G—Regulations                                                                                   26

111CZ... Regulations to implement the Convention....................................... 26

Division 5—Other matters                                                                                      26

111D..... Regulations may provide for rules of evidence................................. 26

Part XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect children                                                                                                                                      26

Division 1—Interpretation                                                                                       26

112AA.. Interpretation.................................................................................... 26

112AB.. Meaning of contravene an order...................................................... 26

112AC.. Meaning of reasonable excuse for contravening an order............... 26

Division 2—Sanctions for failure to comply with orders                          26

112AD.. Sanctions for failure to comply with orders..................................... 26

112AE... Sentences of imprisonment............................................................... 26

112AF... Bonds................................................................................................ 26

112AG.. Additional sentencing alternatives.................................................... 26

112AH.. Failure to comply with sentence passed, or order made, pursuant to paragraph 112AD(2)(b)              26

112AK.. Variation and discharge of orders...................................................... 26

112AM. Relationship between Division and other laws................................ 26

112AN.. Arrangements with States and Territories for carrying out of sentences and orders               26

112AO.. Division does not limit operation of section 105............................. 26

Part XIIIB—Contempt of court                                                                                    26

112AP... Contempt.......................................................................................... 26

Part XIV—Declarations and injunctions                                                                  26

112A..... Interpretation.................................................................................... 26

113........ Proceedings for declarations............................................................. 26

114........ Injunctions........................................................................................ 26

114AA.. Powers of arrest................................................................................ 26

114AB.. Operation of State and Territory laws............................................. 26

Part XIVA—The Australian Institute of Family Studies                                26

114A..... Interpretation.................................................................................... 26

114B..... Establishment of Institute................................................................ 26

114C..... Minister may give directions to Director......................................... 26

114D..... Appointment of Director................................................................. 26

114E...... Term of appointment....................................................................... 26

114F...... Acting appointments........................................................................ 26

114G..... Director’s remuneration.................................................................... 26

114H..... Outside employment........................................................................ 26

114J...... Leave of absence............................................................................... 26

114K..... Disclosure of interests...................................................................... 26

114L...... Other terms and conditions.............................................................. 26

114LA... Resignation....................................................................................... 26

114LB... Termination of appointment............................................................ 26

114LC... Annual reports.................................................................................. 26

114LD... Delegation......................................................................................... 26

114M.... Staff.................................................................................................. 26

Part XV—Miscellaneous                                                                                                  26

115........ Family Law Council......................................................................... 26

116C..... Payments to legal practitioners by legal aid bodies.......................... 26

117........ Costs................................................................................................. 26

117AA.. Costs in proceedings relating to overseas enforcement and international Conventions           26

117AB.. Costs where false allegation or statement made............................... 26

117AC.. Security for costs.............................................................................. 26

117A..... Reparation for certain losses and expenses relating to children........ 26

117B..... Interest on moneys ordered to be paid............................................. 26

117C..... Offers of settlement.......................................................................... 26

118........ Frivolous or vexatious proceedings.................................................. 26

119........ Married persons may sue each other................................................ 26

120........ Criminal conversation, adultery and enticement............................... 26

121........ Restriction on publication of court proceedings............................... 26

122........ Rights of legal practitioners.............................................................. 26

122AA.. Use of reasonable force in arresting persons.................................... 26

122A..... Powers of entry and search for purposes of arresting persons........ 26

122B..... Arrangements with States and Territories........................................ 26

123........ Rules of Court.................................................................................. 26

124........ Rules Advisory Committee.............................................................. 26

124A..... Regulations in relation to overseas‑related maintenance obligations etc. 26

125........ Regulations....................................................................................... 26

Schedule 1—Child Protection Convention                                                              26

Notes                                                                                                                                            26


An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and certain other Matters

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Family Law Act 1975.

2  Commencement [see Note 1]

                   This Act shall come into operation on a date to be fixed by Proclamation.

3  Repeal and saving

             (1)  The Matrimonial Causes Act 1959, the Matrimonial Causes Act 1965 and the Matrimonial Causes Act 1966 are repealed.

             (2)  Notwithstanding the repeal effected by subsection (1):

                     (a)  the validity of a decree made before the commencement of the Matrimonial Causes Act 1959 by virtue of the Imperial Act entitled the Matrimonial Causes (War Marriages) Act, 1944 or Part I of the Matrimonial Causes (War Marriages) Act 1947 of New Zealand and in force immediately before the commencement of this Act shall continue to be recognized in all courts in Australia;

                     (b)  a decree of the Supreme Court of a State or Territory made before the commencement of the Matrimonial Causes Act 1959 in the exercise of jurisdiction invested or conferred by the Matrimonial Causes Act 1945, or that Act as amended by the Matrimonial Causes Act 1955, and in force immediately before the commencement of this Act shall continue to have effect throughout Australia; and

                     (c)  a decree of the Supreme Court, or of a court of summary jurisdiction, of a State or Territory:

                              (i)  made before the commencement of this Act in the exercise of jurisdiction invested or conferred by the repealed Act, or in a matrimonial cause or proceedings for a separation order instituted under the law of that State or Territory, being a decree that was in force immediately before the commencement of this Act; or

                             (ii)  made after the commencement of this Act in proceedings to which subsection 9(1) applied;

                            shall have, or continue to have, effect throughout Australia, and, except in the case of:

                            (iii)  a decree of nullity of marriage made on the ground that the marriage was voidable;

                            (iv)  a decree of judicial separation;

                             (v)  a decree of restitution of conjugal rights;

                            (vi)  a decree of jactitation of marriage; or

                           (vii)  a separation order;

                            this Act applies to and in relation to the decree as if the decree had been made under this Act.

             (3)  For the purposes of paragraph (2)(c), a purported decree to which section 5 of the Matrimonial Causes Act 1971 applied made in a State shall be deemed to be a decree of the Supreme Court of that State made in the exercise of jurisdiction invested by the repealed Act.

4  Interpretation

             (1)  In this Act, the standard Rules of Court and the related Federal Magistrates Rules, unless the contrary intention appears:

Aboriginal child means a child who is a descendant of the Aboriginal people of Australia.

Aboriginal or Torres Strait Islander culture in relation to a child:

                     (a)  means the culture of the Aboriginal or Torres Strait Islander community or communities to which the child belongs; and

                     (b)  includes Aboriginal or Torres Strait Islander lifestyle and traditions of that community or communities.

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.

Accreditation Rules means regulations made under section 10A.

adopted, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.

alleged contravention, in Subdivision D of Division 6 of Part VII, means the alleged contravention because of which the alleged offender is arrested.

alleged offender, in Subdivision D of Division 6 of Part VII, means the person who is arrested.

appeal includes an application for a re‑hearing.

Appeal Division means the Appeal Division of the Family Court.

applicable Rules of Court:

                     (a)  in relation to the Federal Magistrates Court—means the related Federal Magistrates Rules; and

                     (b)  in relation to any other court—means the standard Rules of Court.

applicant includes a cross‑applicant and, in relation to proceedings for dissolution of marriage instituted before the commencement of this Act, includes a petitioner or cross‑petitioner.

applied provisions, when used in Division 13A of Part VII in relation to a community service order made under paragraph 70NFB(2)(a), means the provisions of the laws of a State or Territory (as modified by regulations made under subsection 70NFC(4)), that, because of regulations made under that subsection, apply in relation to the order.

appropriate authority, when used in Part VII in relation to a Commonwealth instrumentality, means a person:

                     (a)  who in, or in relation to, the instrumentality:

                              (i)  is an SES employee or acting SES employee; or

                             (ii)  holds an office or position that is at a level equivalent to that of an SES employee; or

                     (b)  who is authorised in writing by the principal officer of the instrumentality to provide information under Commonwealth information orders.

appropriate officer, when used in Division 5 of Part III in relation to the Family Court, means:

                     (a)  the Chief Executive Officer of the Family Court; or

                     (b)  any other officer of the Family Court specified in writing by the Chief Executive Officer for the purposes of this definition.

arbitration has the meaning given by section 10L.

arbitrator has the meaning given by section 10M.

arresting person means the person who arrests the alleged offender.

artificial conception procedure includes:

                     (a)  artificial insemination; and

                     (b)  the implantation of an embryo in the body of a woman.

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

Australia includes Norfolk Island.

bankruptcy trustee, in relation to a bankrupt, means the trustee of the bankrupt’s estate.

birth includes stillbirth.

captain, in relation to an aircraft or vessel, means the person in charge or command of the aircraft or vessel.

Chief Executive Officer means the Chief Executive Officer of the Family Court.

Note:          The Chief Executive Officer is appointed under section 38C. A person is appointed to act as the Chief Executive Officer under section 38M.

child:

                     (a)  in Part VII, includes an adopted child and a stillborn child; and

                     (b)  in Subdivision E of Division 6 of that Part, means a person who is under 18 (including a person who is an adopted child).

childbirth maintenance period, in relation to the birth of a child, means the period that begins on the day mentioned in paragraph (a) or (b) and ends 3 months after the child’s birth:

                     (a)  if the mother:

                              (i)  works in paid employment; and

                             (ii)  is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and

                            (iii)  stops working after being so advised and more than 2 months before the child is due to be born;

                            the period begins on the day on which she stops working; or

                     (b)  in any other case—the period begins on the day that is 2 months before the child is due to be born.

child maintenance order has the meaning given by subsection 64B(5).

child maintenance provisions, in relation to a parenting plan, has the meaning given by subsection 63C(5).

child of a marriage includes a child who is, under subsection 60F(1) or (2), a child of a marriage, but does not include a child who has, under subsection 60F(3), ceased to be a child of a marriage.

child‑related proceedings has the meaning given by section 69ZM.

child welfare law means a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.

child welfare officer, in relation to a State or Territory, means:

                     (a)  a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or

                     (b)  a person authorised in writing by such a person for the purposes of Part VII.

child welfare provisions, in relation to a parenting plan, has the meaning given by subsection 63C(4).

Commonwealth information order has the meaning given by subsection 67J(2).

Commonwealth instrumentality means a body or authority established for a public purpose by or under a law of the Commonwealth.

community service order has the meaning given by subsection 70NFC(3).

contravened an order, in Division 13A of Part VII, has the meaning given by section 70NAC.

court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act.

debtor subject to a personal insolvency agreement has the meaning given by section 5.

decree means decree, judgment or order and includes:

                     (a)  an order dismissing an application; or

                     (b)  a refusal to make a decree or order.

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.

Department, in Subdivision C of Division 8 of Part VII, means a Department of State of the Commonwealth.

divorce means the termination of a marriage otherwise than by the death of a party to the marriage.

Note:          Annulment does not involve the termination of a marriage but simply a declaration that a purported marriage is in fact void.

divorce or validity of marriage proceedings means:

                     (a)  proceedings between the parties to a marriage, or by the parties to a marriage, for:

                              (i)  a divorce order in relation to the marriage; or

                             (ii)  a decree of nullity of marriage; or

                     (b)  proceedings for a declaration as to the validity of:

                              (i)  a marriage; or

                             (ii)  a divorce; or

                            (iii)  the annulment of a marriage;

                            by decree or otherwise.

DPP means the Director of Public Prosecutions.

education includes apprenticeship or vocational training.

excluded order means:

                     (a)  an interim order; or

                     (b)  an order made in favour of a person where:

                              (i)  the order was made on the application of the person; and

                             (ii)  notice of making the application was not served on any other person; and

                            (iii)  no other person appeared at the hearing of the application.

family consultant has the meaning given by section 11B.

family counselling has the meaning given by section 10B.

family counsellor has the meaning given by section 10C.

family dispute resolution has the meaning given by section 10F.

family dispute resolution practitioner has the meaning given by section 10G.

Family Law Magistrate of Western Australia means a person who holds office concurrently:

                     (a)  as a magistrate under the Magistrates Court Act 2004 of Western Australia; and

                     (b)  as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia.

family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Note:          A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.

financial agreement means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante‑nuptial or post‑nuptial settlement to which section 85A applies.

financial matters, in relation to the parties to a marriage, means matters with respect to:

                     (a)  the maintenance of one of the parties;

                     (b)  the property of those parties or of either of them; or

                     (c)  the maintenance of children of the marriage.

financial or Part VII proceedings means proceedings (being, unless the context otherwise requires, proceedings under this Act) of a kind referred to in any of paragraphs (c) to (eb) of the definition of matrimonial cause in this subsection or proceedings under Part VII.

forfeiture application means an application for a forfeiture order under the Proceeds of Crime Act 2002.

forfeiture order means a forfeiture order under the Proceeds of Crime Act 2002.

Full Court means:

                     (a)  3 or more Judges of the Family Court sitting together, where a majority of those Judges are members of the Appeal Division; or

                     (b)  in relation to particular proceedings:

                              (i)  3 or more Judges of the Family Court sitting together, where, at the commencement of the hearing of the proceedings, a majority of those Judges were members of the Appeal Division; or

                             (ii)  2 Judges of the Family Court sitting together, where those Judges are permitted, by subsection 28(4), to complete the hearing and determination, or the determination, of those proceedings.

General Division means the General Division of the Family Court.

guardian, when used in Part VII in relation to a child, includes a person who has been granted (whether alone or jointly with another person or other persons) guardianship of the child under the law of the Commonwealth or of a State or Territory.

income tested pension, allowance or benefit means a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of this definition.

independent children’s lawyer for a child means a lawyer who represents the child’s interests in proceedings under an appointment made under a court order under subsection 68L(2).

information about the child’s location, in the context of a location order made or to be made by a court in relation to a child, means information about:

                     (a)  where the child is; or

                     (b)  where a person, who the court has reasonable cause to believe has the child, is.

interests, when used in Part VII in relation to a child, includes matters related to the care, welfare or development of the child.

lawyer means a person enrolled as a legal practitioner of:

                     (a)  a federal court; or

                     (b)  the Supreme Court of a State or Territory.

location order has the meaning given by subsection 67J(1).

made, in relation to a decree, being a judgment, means given.

made in favour, in relation to a parenting order (other than a child maintenance order), has the meaning given by subsection 64B(6).

maintenance agreement means an agreement in writing made, whether before or after the commencement of this Act and whether within or outside Australia, between the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes provision with respect to other matters, and includes such an agreement that varies an earlier maintenance agreement.

major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

                     (a)  the child’s education (both current and future); and

                     (b)  the child’s religious and cultural upbringing; and

                     (c)  the child’s health; and

                     (d)  the child’s name; and

                     (e)  changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

matrimonial cause means:

                     (a)  proceedings between the parties to a marriage, or by the parties to a marriage, for:

                              (i)  a divorce order in relation to the marriage; or

                             (ii)  a decree of nullity of marriage; or

                     (b)  proceedings for a declaration as to the validity of:

                              (i)  a marriage; or

                             (ii)  a divorce; or

                            (iii)  the annulment of a marriage;

                            by decree or otherwise; or

                     (c)  proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or

                  (caa)  proceedings between:

                              (i)  a party to a marriage; and

                             (ii)  the bankruptcy trustee of a bankrupt party to the marriage;

                            with respect to the maintenance of the first‑mentioned party; or

                    (ca)  proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

                              (i)  arising out of the marital relationship;

                             (ii)  in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

                            (iii)  in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or

                    (cb)  proceedings between:

                              (i)  a party to a marriage; and

                             (ii)  the bankruptcy trustee of a bankrupt party to the marriage;

                            with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:

                            (iii)  arising out of the marital relationship; or

                            (iv)  in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or

                             (v)  in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or

                     (d)  proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or

                     (e)  proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or

                    (ea)  proceedings between:

                              (i)  the parties to a marriage; or

                             (ii)  if one of the parties to a marriage has died—the other party to the marriage and the legal personal representative of the deceased party to the marriage;

                            being proceedings:

                            (iii)  for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;

                            (iv)  in relation to a maintenance agreement the approval of which under section 87 has been revoked; or

                             (v)  with respect to the enforcement under this Act or the applicable Rules of Court of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89; or

                  (eaa)  without limiting any of the preceding paragraphs, proceedings between the parties to a marriage with respect to a financial agreement made by them; or

                  (eab)  third party proceedings (as defined in section 4A) to set aside a financial agreement; or

                    (eb)  proceedings with respect to the enforcement of a decree made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c); or

                      (f)  any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

medical expenses includes medical, surgical, dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy expenses.

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

member of the family, in relation to a person, has, for the purposes of the definition of step‑parent, paragraphs 60CC(3)(j) and (k) and section 60CF, the meaning given by subsection (1AB) of this section.

order under this Act affecting children, in relation to a court, means:

                     (a)  a parenting order; or

                     (b)  an injunction granted by the court:

                              (i)  under section 68B; or

                             (ii)  under section 114 in so far as the injunction is for the protection of a child; or

                     (c)  an undertaking given to, and accepted by, the court:

                              (i)  that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or

                             (ii)  that relates to a bond referred to in paragraph (g); or

                     (d)  a subpoena issued under the applicable Rules of Court:

                              (i)  that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or

                             (ii)  that relates to a bond referred to in paragraph (g);

                            being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or

                     (e)  a registered parenting plan within the meaning of subsection 63C(6); or

                      (f)  a community service order made under paragraph 70NFB(2)(a); or

                     (g)  a bond entered into:

                              (i)  under a parenting order; or

                             (ii)  under paragraph 70NFB(2)(b); or

                            (iii)  for the purposes of subsection 70NFG(6);

                            and includes an order, injunction, plan or bond that:

                     (h)  is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and

                      (i)  has been registered in the first‑mentioned court.

ordinarily resident includes habitually resident.

overseas child order means:

                     (a)  an order made by a court of a prescribed overseas jurisdiction that:

                              (i)  however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or

                             (ii)  however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or

                            (iii)  however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or

                            (iv)  varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or

                     (b)  an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).

overseas jurisdiction means a country, or part of a country, outside Australia.

overseas maintenance agreement means a maintenance agreement that has force and effect in a prescribed overseas jurisdiction by reason of the registration of the agreement, or the taking of any other action in relation to the agreement, under the law of that jurisdiction and includes an agreement with respect to the maintenance of an ex‑nuptial child that would be covered by the foregoing provisions of this definition if the child were a child of the marriage of the parties to the agreement.

parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.

parentage testing order has the meaning given by subsection 69W(1).

parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition.

parental responsibility, in Part VII, has the meaning given by section 61B.

parenting order has the meaning given by subsection 64B(1).

parenting plan has the meaning given by subsection 63C(1).

Part VIIIA proceedings means proceedings in relation to a financial agreement.

Part VIIIB proceedings means:

                     (a)  proceedings in relation to a superannuation agreement (within the meaning of Part VIIIB); or

                     (b)  proceedings in relation to a payment split or payment flag (within the meaning of that Part); or

                     (c)  any other proceedings under that Part.

Part VIII proceedings means proceedings under Part VIII for orders with respect to spousal maintenance or the property of parties to a marriage, but does not include any proceedings specified in the regulations for the purposes of this definition.

pending, in Subdivision E of Division 6 of Part VII, has a meaning affected by section 65X.

personal insolvency agreement has the same meaning as in the Bankruptcy Act 1966.

police officer means:

                     (a)  a member or special member of the Australian Federal Police; or

                     (b)  a member, however described, of the police force of a State or Territory.

post‑separation parenting program means a program:

                     (a)  that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and

                     (b)  that consists of lectures, discussions (including group discussions) or other activities; and

                     (c)  that is provided by an organisation that meets the conditions in section 65LB.

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)  if the child is the subject of proceedings under Part VII in a State or Territory—an officer of the State or Territory who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person; or

                     (b)  if the child is not the subject of proceedings under Part VII—an officer of the State or Territory in which the child is located or is believed to be located who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person.

prescribed overseas jurisdiction means any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used.

prescribed proceedings means:

                     (a)  divorce or validity of marriage proceedings; or

                     (b)  proceedings in relation to concurrent, pending or completed divorce or validity of marriage proceedings.

primary order means an order under this Act affecting children and includes such order as varied.

principal officer, when used in Subdivision C of Division 8 of Part VII in relation to a Commonwealth instrumentality, means:

                     (a)  if the regulations declare an office to be the principal office in respect of the instrumentality—the person holding, or performing the duties of, that office; or

                     (b)  the person who constitutes the instrumentality or who is entitled to preside at any meeting of the instrumentality, or of its governing body, at which the person is present.

proceedings means a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connexion with a proceeding.

proceedings for principal relief means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of matrimonial cause in this subsection.

proceeds of crime order means:

                     (a)  a restraining order under the Proceeds of Crime Act 2002; or

                     (b)  a forfeiture order under the Proceeds of Crime Act 2002.

professional ethics includes:

                     (a)  rules of professional conduct; and

                     (b)  rules of professional etiquette; and

                     (c)  a code of ethics; and

                     (d)  standards of professional conduct.

property, in relation to the parties to a marriage 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.

property settlement or spousal maintenance proceedings means proceedings with respect to:

                     (a)  the property of the parties to a marriage or either of them; or

                    (aa)  the vested bankruptcy property in relation to a bankrupt party to a marriage; or

                     (b)  the maintenance of a party to a marriage.

property settlement proceedings means proceedings with respect to:

                     (a)  the property of the parties to a marriage or either of them; or

                     (b)  the vested bankruptcy property in relation to a bankrupt party to a marriage.

reasonable excuse for contravening an order includes the meanings given by section 70NAE.

recovery order has the meaning given by section 67Q.

Registrar means:

                     (a)  in relation to the Family Courtthe Principal Registrar, a Registrar, or a Deputy Registrar of the Court; and

                     (b)  in relation to a court other than the Family Court—the principal legal officer of the court or any other appropriate officer of the court.

Registry Manager:

                     (a)  except in Subdivision C of Division 8 of Part VII and section 67Z, means:

                              (i)  in relation to the Family Court—the Registry Manager of a Registry of the Court; and

                             (ii)  in relation to a court other than the Family Court—the principal officer of the court or any other appropriate officer of the court; and

                     (b)  in Subdivision C of Division 8 of Part VII, means:

                              (i)  in relation to the Family Court—the Registry Manager of the Registry of the Court; and

                             (ii)  in relation to the Family Court of Western Australia—the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and

                            (iii)  in relation to any other court—the principal officer of the court.

related Federal Magistrates Rules means the Rules of Court made under the Federal Magistrates Act 1999 to the extent to which they relate to this Act.

relative of a child:

                     (a)  in Part VII, means:

                              (i)  a step‑parent of the child; or

                             (ii)  a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the child; or

                            (iii)  a grandparent of the child; or

                            (iv)  an uncle or aunt of the child; or

                             (v)  a nephew or niece of the child; or

                            (vi)  a cousin of the child; and

                     (b)  in subsection (1AB), has the meaning given by subsection (1AC).

relevant property or financial arbitration has the meaning given by subsection 10L(2).

repealed Act means the Matrimonial Causes Act 1959.

section 13E arbitration has the meaning given by subsection 10L(2).

section 106A proceedings means proceedings under section 106A.

separation order means a decree, not being a decree of dissolution or nullity of marriage or for a judicial separation, having the effect of relieving a party to a marriage from any obligation to cohabit with the other party to the marriage.

split court has the meaning given by subsection 27(2).

standard Rules of Court means Rules of Court made under this Act.

State, in Subdivision B of Division 13 of Part VII, includes a Territory.

State child order means an order made under the law of a State:

                     (a)  that (however it is expressed) has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or

                     (b)  that (however it is expressed) has the effect of providing for a person or persons to spend time with a child who is under 18; or

                     (c)  that (however it is expressed) has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18.

step‑parent, in relation to a child, means a person who:

                     (a)  is not a parent of the child; and

                     (b)  is or has been married to a parent of the child; and

                     (c)  treats, or at any time during the marriage treated, the child as a member of the family formed with the parent.

Subdivision C parenting order, when used in Division 13 of Part VII, means a parenting order to the extent to which it deals with:

                     (a)  whom a child is to live with; or

                     (b)  whom a child is to spend time with; or

                     (c)  who is to be responsible for a child’s day‑to‑day care, welfare and development.

Territory includes:

                     (a)  Norfolk Island;

                     (b)  the Territory of Christmas Island;

                     (c)  the Territory of Cocos (Keeling) Islands;

but does not include any other external Territory.

this Act includes the regulations.

Torres Strait Islander child means a child who is a descendant of the Indigenous inhabitants of the Torres Strait Islands.

trustee, in relation to a personal insolvency agreement, has the same meaning as in the Bankruptcy Act 1966.

vested bankruptcy property, in relation to a bankrupt, means property of the bankrupt that has vested in the bankruptcy trustee under the Bankruptcy Act 1966. For this purpose, property has the same meaning as in the Bankruptcy Act 1966.

video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places.

warrant issued under a provision of this Act includes a warrant issued under the standard Rules of Court or the related Federal Magistrates Rules.

       (1AA)  A reference in this Act to a person or people involved in proceedings is a reference to:

                     (a)  any of the parties to the proceedings; and

                     (b)  any child whose interests are considered in, or affected by, the proceedings; and

                     (c)  any person whose conduct is having an effect on the proceedings.

        (1AB)  For the purposes of:

                     (a)  the definitions of family violence and step‑parent in subsection (1); and

                     (b)  paragraphs 60CC(3)(j) and (k); and

                     (c)  section 60CF;

a person (the first person) is a member of the family of another person (the second person) if:

                     (d)  the first person is or has been married to, or in a de facto relationship with, the second person; or

                     (e)  the first person is or has been a relative of the second person (as defined in subsection (1AC)); or

                      (f)  an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force:

                              (i)  a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons;

                             (ii)  an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or

                     (g)  an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force:

                              (i)  an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons;

                             (ii)  an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or

                     (h)  the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or

                      (i)  the first person is or has been a member of the family of a child of the second person.

        (1AC)  For the purposes of subsection (1AB), a relative of a person is:

                     (a)  a father, mother, grandfather, grandmother, step‑father or step‑mother of the person; or

                     (b)  a son, daughter, grandson, grand‑daughter, step‑son or step‑daughter of the person; or

                     (c)  a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the person; or

                     (d)  an uncle or aunt of the person; or

                     (e)  a nephew or niece of the person; or

                      (f)  a cousin of the person; or

                     (g)  if the person is or was married—in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person’s spouse; or

                     (h)  if the person is or was in a de facto relationship with another person—in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.

          (1A)  In this Act, the standard Rules of Court and the related Federal Magistrates Rules:

                     (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.

             (2)  A reference in this Act, the standard Rules of Court or the related Federal Magistrates Rules to a party to a marriage includes a reference to a person who was a party to a marriage that has been:

                     (a)  terminated by divorce (in Australia or elsewhere); or

                     (b)  annulled (in Australia or elsewhere); or

                     (c)  terminated by the death of one party to the marriage.

             (3)  To avoid doubt, for all purposes:

                     (a)  jurisdiction under the standard Rules of Court is taken to be jurisdiction under this Act; and

                     (b)  jurisdiction under the related Federal Magistrates Rules is taken to be jurisdiction under this Act; and

                     (c)  proceedings under the standard Rules of Court are taken to be proceedings under this Act; and

                     (d)  proceedings under the related Federal Magistrates Rules are taken to be proceedings under this Act; and

                     (e)  an order (however described) made by a court under the standard Rules of Court is taken to be an order made by the court under this Act; and

                      (f)  an order (however described) made by a court under the related Federal Magistrates Rules is taken to be an order made by the court under this Act.

             (4)  A reference in this Act to a person who has parental responsibility for a child is a reference to a person who:

                     (a)  has some or all of that responsibility solely; or

                     (b)  shares some or all of that responsibility with another person.

             (5)  A reference in this Act to a person who shares parental responsibility for a child with another person is a reference to a person who shares some or all of the parental responsibility for the child with that other person.

4A  Third party proceedings to set aside financial agreement

             (1)  For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings means proceedings between:

                     (a)  either or both of the parties to a financial agreement; and

                     (b)  a creditor or a government body acting in the interests of a creditor;

being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(aa).

             (2)  In this section:

creditor means:

                     (a)  a creditor of either of the parties to the financial agreement; or

                     (b)  a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of either of the parties to the financial agreement.

government body means:

                     (a)  the Commonwealth, a State or a Territory; or

                     (b)  an official or authority of the Commonwealth, a State or a Territory.

5  Debtor subject to a personal insolvency agreement

                   For the purposes of this Act, if:

                     (a)  a person who is a debtor (within the meaning of Part X of the Bankruptcy Act 1966) executes a personal insolvency agreement; and

                     (b)  the agreement has not ended (within the meaning of the Bankruptcy Act 1966);

the person is a debtor subject to the personal insolvency agreement.

6  Polygamous marriages

                   For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

7  Extension of Act to certain Territories

                   This Act extends to the following Territories:

                     (a)  Norfolk Island;

                     (b)  the Territory of Christmas Island;

                     (c)  the Territory of Cocos (Keeling) Islands.

7A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

8  Supersession of existing laws

             (1)  After the commencement of this Act:

                     (a)  proceedings by way of a matrimonial cause shall not be instituted except under this Act; and

                     (b)  proceedings by way of a matrimonial cause instituted before the commencement of this Act shall not be continued except in accordance with section 9.

             (2)  Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this Act.

             (3)  Proceedings for a separation order shall not be instituted after the commencement of this Act.

9  Transitional

             (1)  Subject to subsections (2) and (2A), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and shall be dealt with as if this Act had not been passed.

             (2)  Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of commencement of this Act, pending proceedings for a decree of dissolution of marriage shall, if either party so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, subsection 48(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of commencement of this Act.

          (2A)  Where subsection (2) does not apply but the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of making of the request under this subsection, pending proceedings for a decree of dissolution of marriage shall, if either party so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, subsection 48(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of making of the request.

             (3)  Pending proceedings for a decree of nullity of marriage on the ground that the marriage is void or proceedings of a kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1) may be continued and shall be dealt with as if they were proceedings instituted under this Act.

             (4)  Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act.

             (5)  Subsection 117(1) does not apply to proceedings continued and dealt with under this section.

             (6)  Where, in any proceedings constituting a matrimonial cause, a decree has been made before the commencement of this Act:

                     (a)  any appeal in respect of that decree may be continued or instituted;

                     (b)  any new trial or re‑hearing ordered upon the hearing of such an appeal, or upon an appeal heard before the commencement of this Act, may be had and completed; and

                     (c)  any decree may be made upon any such appeal, new trial or re‑hearing, and, if a decree so made is a decree nisi, the decree may become absolute;

as if this Act had not been passed.

             (7)  Where, in any proceedings constituting a matrimonial cause, a decree nisi was made before the commencement of this Act but did not become absolute before that date, the decree becomes absolute upon:

                     (a)  the expiration of 1 month from the date of making of the decree;

                     (b)  the expiration of 1 month from the date of making of a relevant order under subsection 71(1) of the repealed Act or section 55A of this Act; or

                     (c)  the date of commencement of this Act;

whichever is the latest.

          (7A)  Where, in any proceedings constituting a matrimonial cause, being proceedings continued and dealt with in accordance with subsection (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 subsection, then:

                     (a)  except in the case of a decree made before the date of commencement of this subsection in respect of which a relevant order was made under subsection 71(1) of the repealed Act before that date—section 55A 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 55A of this Act; or

                             (ii)  the date of commencement of this subsection;

                            whichever is the later.

             (8)  The law to be applied, and the practice and the procedure to be followed, in and in relation to pending proceedings that are continued as if this Act had not been passed shall be the same as if this Act had not been passed.

             (9)  In this section:

appeal includes:

                     (a)  an application for leave or special leave to appeal;

                     (b)  an application for a new trial or for a re‑hearing; and

                     (c)  an intervention.

pending proceedings means proceedings that were instituted before the date of commencement of this Act but were not completed before that date.


 

Part IAProtection of names

  

9A  Use of protected names and symbols

             (1)  A person must not, without the Minister’s written consent:

                     (a)  use in relation to a business, trade, profession or occupation; or

                     (b)  use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or

                     (c)  apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or

                     (d)  use in relation to:

                              (i)  goods or services; or

                             (ii)  the promotion, by any means, of the supply or use of goods or services:

either:

                     (e)  a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or

                      (f)  a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it.

Penalty:  30 penalty units.

             (2)  Subsection (1), so far as it applies in relation to a particular protected name or protected symbol, does not affect rights conferred by law on a person in relation to:

                     (a)  a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995; or

                     (b)  a design registered under the Designs Act 2003;

that was so registered, or was registered under the Designs Act 1906, at the protection time in relation to the name or symbol.

             (3)  This section, so far as it applies in relation to a particular protected name or protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person:

                     (a)  was using the relevant name or symbol in good faith in that manner; or

                     (b)  would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first‑mentioned person.

             (4)  In this section:

protected name means a name prescribed for the purposes of this definition.

protected symbol means a symbol whose design is set out in the regulations.

protection time means:

                     (a)  in relation to a protected name—the time immediately before the commencement of the regulation prescribing the name; or

                     (b)  in relation to a protected symbol—the time immediately before the commencement of the regulation setting out the design of the symbol.


 

Part IINon‑court based family services

Division 1Accreditation of family counsellors, family dispute resolution practitioners and other family service providers

10A  Accreditation Rules

             (1)  The regulations may prescribe Accreditation Rules. These are rules relating to:

                     (a)  the accreditation of persons as family counsellors; and

                     (b)  the accreditation of persons as family dispute resolution practitioners; and

                     (c)  the accreditation of persons to perform other roles prescribed by regulations made for the purposes of this paragraph.

             (2)  Examples of matters that the Accreditation Rules may deal with are:

                     (a)  the standards that are to be met by persons who seek to be accredited; and

                     (b)  who is responsible for determining whether a person meets the Accreditation Rules; and

                     (c)  how accreditation is to be recognised (for example, by establishment of a register or other method); and

                     (d)  the standards and other obligations that accredited persons must continue to meet to remain accredited; and

                     (e)  who is responsible for monitoring compliance with ongoing requirements in the Rules; and

                      (f)  the consequences of accredited persons failing to comply with the provisions of this Act and the Rules; and

                     (g)  the obligations of accredited persons in relation to the monitoring of their compliance; and

                     (h)  how and by whom an accredited person may have his or her accreditation (or recognition of that accreditation) suspended or cancelled; and

                      (i)  review of decisions to refuse, suspend or cancel accreditation (or recognition of accreditation); and

                      (j)  the process for handling complaints involving accredited persons; and

                     (k)  who may deliver recognised training to accredited persons, and

                      (l)  dealing with individuals or other persons who make false or misleading representations about a person’s status as an accredited person.


 

Division 2Family counselling

10B  Definition of family counselling

                   Family counselling is a process in which a family counsellor helps:

                     (a)  one or more persons to deal with personal and interpersonal issues in relation to marriage; or

                     (b)  one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

                              (i)  personal and interpersonal issues;

                             (ii)  issues relating to the care of children.

10C  Definition of family counsellor

             (1)  A family counsellor is:

                     (a)  a person who is accredited as a family counsellor under the Accreditation Rules; or

                     (b)  a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or

                     (c)  a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family counsellor; or

                     (d)  a person who is authorised to act under section 93D of the Federal Magistrates Act 1999, or engaged under subsection 115(1A) of that Act, as a family counsellor; or

                     (e)  a person who is authorised by a Family Court of a State to act as a family counsellor.

             (2)  The Minister must publish, at least annually, a list of organisations designated for the purposes of paragraph (b) of the definition of family counsellor.

             (3)  An instrument under this section is not a legislative instrument.

10D  Confidentiality of communications in family counselling

             (1)  A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.

             (2)  A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

             (3)  A family counsellor may disclose a communication if consent to the disclosure is given by:

                     (a)  if the person who made the communication is 18 or over—that person; or

                     (b)  if the person who made the communication is a child under 18:

                              (i)  each person who has parental responsibility (within the meaning of Part VII) for the child; or

                             (ii)  a court.

             (4)  A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:

                     (a)  protecting a child from the risk of harm (whether physical or psychological); or

                     (b)  preventing or lessening a serious and imminent threat to the life or health of a person; or

                     (c)  reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

                     (d)  preventing or lessening a serious and imminent threat to the property of a person; or

                     (e)  reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

                      (f)  if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.

             (5)  A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.

             (6)  Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.

Note:          This means that the counsellor’s evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.

             (7)  Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961.

             (8)  In this section:

communication includes admission.

10E  Admissibility of communications in family counselling and in referrals from family counselling

             (1)  Evidence of anything said, or any admission made, by or in the company of:

                     (a)  a family counsellor conducting family counselling; or

                     (b)  a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is not admissible:

                     (c)  in any court (whether or not exercising federal jurisdiction); or

                     (d)  in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).

             (2)  Subsection (1) does not apply to:

                     (a)  an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

                     (b)  a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

             (3)  Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961.

             (4)  A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.


 

Division 3Family dispute resolution

10F  Definition of family dispute resolution

                   Family dispute resolution is a process (other than a judicial process):

                     (a)  in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and

                     (b)  in which the practitioner is independent of all of the parties involved in the process.

10G  Definition of family dispute resolution practitioner

             (1)  A family dispute resolution practitioner is:

                     (a)  a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules; or

                     (b)  a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or

                     (c)  a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family dispute resolution practitioner; or

                     (d)  a person who is authorised to act under section 93D of the Federal Magistrates Act 1999, or engaged under subsection 115(1A) of that Act, as a family dispute resolution practitioner; or

                     (e)  a person who is authorised by a Family Court of a State to act as a family dispute resolution practitioner.

             (2)  The Minister must publish, at least annually, a list of organisations designated for the purposes of paragraph (b) of the definition of family dispute resolution practitioner.

             (3)  An instrument under this section is not a legislative instrument.

10H  Confidentiality of communications in family dispute resolution

             (1)  A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.

             (2)  A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

             (3)  A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:

                     (a)  if the person who made the communication is 18 or over—that person; or

                     (b)  if the person who made the communication is a child under 18:

                              (i)  each person who has parental responsibility (within the meaning of Part VII) for the child; or

                             (ii)  a court.

             (4)  A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:

                     (a)  protecting a child from the risk of harm (whether physical or psychological); or

                     (b)  preventing or lessening a serious and imminent threat to the life or health of a person; or

                     (c)  reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

                     (d)  preventing or lessening a serious and imminent threat to the property of a person; or

                     (e)  reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

                      (f)  if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.

             (5)  A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.

             (6)  A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).

             (7)  Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.

Note:          This means that the practitioner’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.

             (8)  In this section:

communication includes admission.

10J  Admissibility of communications in family dispute resolution and in referrals from family dispute resolution

             (1)  Evidence of anything said, or any admission made, by or in the company of:

                     (a)  a family dispute resolution practitioner conducting family dispute resolution; or

                     (b)  a person (the professional) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is not admissible:

                     (c)  in any court (whether or not exercising federal jurisdiction); or

                     (d)  in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).

             (2)  Subsection (1) does not apply to:

                     (a)  an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

                     (b)  a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

             (3)  Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).

             (4)  A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.

10K  Family dispute resolution practitioners must comply with regulations

             (1)  The regulations may prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services they provide.

             (2)  The regulations may prescribe penalties not exceeding 10 penalty units in respect of offences against regulations made for the purposes of subsection (1).


 

Division 4Arbitration

10L  Definition of arbitration

             (1)  Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

             (2)  Arbitration may be either:

                     (a)  section 13E arbitration—which is arbitration of Part VIII proceedings carried out as a result of an order made under section 13E; or

                     (b)  relevant property or financial arbitration—which is arbitration (other than section 13E arbitration) of:

                              (i)  Part VIII proceedings, Part VIIIA proceedings, Part VIIIB proceedings or section 106A proceedings; or

                             (ii)  any part of such proceedings; or

                            (iii)  any matter arising in such proceedings; or

                            (iv)  a dispute about a matter with respect to which such proceedings could be instituted.

10M  Definition of arbitrator

                   An arbitrator is a person who meets the requirements prescribed in the regulations to be an arbitrator.

10N  Arbitrators may charge fees for their services

             (1)  An arbitrator conducting arbitration may charge the parties to the arbitration fees for conducting it.

             (2)  The arbitrator must give written information about those fees to the parties before the arbitration starts.

Note:          There may be Rules of Court or regulations relating to the costs of arbitration and how they are assessed or taxed (see paragraphs 123(1)(se) and 125(1)(bc)).

10P  Immunity of arbitrators

                   An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.

Note:          Communications with arbitrators are not confidential, and may be admissible in court.


 

Part IIIFamily consultants

Division 1About family consultants

11A  Functions of family consultants

                   The functions of family consultants are to provide services in relation to proceedings under this Act, including:

                     (a)  assisting and advising people involved in the proceedings; and

                     (b)  assisting and advising courts, and giving evidence, in relation to the proceedings; and

                     (c)  helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and

                     (d)  reporting to the court under sections 55A and 62G; and

                     (e)  advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.

Note:          See subsection 4(1AA) for people who are taken to be involved in proceedings.

11B  Definition of family consultant

A family consultant is a person who is:

                     (a)  appointed as a family consultant under section 38N; or

                     (b)  appointed as a family consultant in relation to the Federal Magistrates Court under the Federal Magistrates Act 1999; or

                     (c)  appointed as a family consultant under the regulations; or

                     (d)  appointed under a law of a State as a family consultant in relation to a Family Court of that State.

Note:          The Chief Executive Officers of the Family Court and the Federal Magistrates Court have all of the functions and powers of family consultants, and may direct consultants in the performance of their functions. See Division 1A of Part IVA of this Act and Division 1A of Part 7 of the Federal Magistrates Act 1999.

11C  Admissibility of communications with family consultants and referrals from family consultants

             (1)  Evidence of anything said, or any admission made, by or in the company of:

                     (a)  a family consultant performing the functions of a family consultant; or

                     (b)  a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is admissible in proceedings under this Act.

Note 1:       Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).

Note 2:       Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.

             (2)  Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).

             (3)  Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:

                     (a)  it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

                     (b)  it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

11D  Immunity of family consultants

                   A family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.


 

Division 2Courts’ use of family consultants

11E  Courts to consider seeking advice from family consultants

             (1)  If, under this Act, a court has the power to:

                     (a)  order a person to attend family counselling or family dispute resolution; or

                     (b)  order a person to participate in a course, program or other service (other than arbitration); or

                     (c)  order a person to attend appointments with a family consultant; or

                     (d)  advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;

the court:

                     (e)  may, before exercising the power, seek the advice of:

                              (i)  if the court is the Family Court or the Federal Magistrates Court—a family consultant nominated by the Chief Executive Officer of that court; or

                             (ii)  if the court is the Family Court of a State—a family consultant of that court; or

                            (iii)  if the court is not mentioned in subparagraph (i) or (ii)—an appropriately qualified person (whether or not an officer of the court);

                            as to the services appropriate to the needs of the person and the most appropriate provider of those services; and

                      (f)  must, before exercising the power, consider seeking that advice.

             (2)  If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought:

                     (a)  whom the court is seeking advice from; and

                     (b)  the nature of the advice the court is seeking.

11F  Court may order parties to attend appointments with a family consultant

             (1)  A court exercising jurisdiction in proceedings under this Act may order one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant.

Note:          Before exercising this power, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

             (2)  When making an order under subsection (1), the court must inform the parties of the effect of section 11G (consequences of failure to comply with order).

             (3)  The court may make orders under this section:

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  a party to the proceedings; or

                             (ii)  a lawyer independently representing a child’s interests under an order made under section 68L.

11G  Consequences of failure to comply with order under section 11F

             (1)  If a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:

                     (a)  the order made by the court; or

                     (b)  any instruction the consultant gives to the person;

the consultant must report the failure to the court.

             (2)  On receiving the report, the court may make any further orders it considers appropriate.

             (3)  The court may make orders under subsection (2):

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  a party to the proceedings; or

                             (ii)  a lawyer independently representing a child’s interests under an order made under section 68L.


 

Part IIIAObligations to inform people about non‑court based family services and about court’s processes and services

Division 1Introduction

12A  Objects of this Part

                   The objects of this Part are:

                     (a)  to ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation, in situations where a reconciliation between the couple seems a reasonable possibility; and

                     (b)  to ensure that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust to:

                              (i)  separation or divorce; and

                             (ii)  orders made under this Act; and

                     (c)  to ensure that people affected, or likely to be affected, by separation or divorce are informed about ways of resolving disputes other than by applying for orders under this Act.


 

Division 2Kind of information to be provided

12B  Prescribed information about non‑court based family services and court’s processes and services

             (1)  The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non‑court based family services and court’s processes and services.

             (2)  Without limitation, information prescribed under this section must include information about:

                     (a)  the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and

                     (b)  the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and

                     (c)  the steps involved in the proposed proceedings; and

                     (d)  the role of family consultants; and

                     (e)  the arbitration facilities available to arbitrate disputes in relation to separation and divorce.

12C  Prescribed information about reconciliation

                   The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage.

12D  Prescribed information about Part VII proceedings

             (1)  The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII.

             (2)  Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.


 

Division 3Who must provide information, and when

12E  Obligations on legal practitioners

             (1)  A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non‑court based family services and court’s processes and services).

             (2)  A legal practitioner who is consulted by, or who is representing, a married person who is a party to:

                     (a)  proceedings for a divorce order in relation to the marriage; or

                     (b)  financial or Part VII proceedings in relation to the marriage;

must give the person documents containing the information prescribed under section 12C (about reconciliation).

             (3)  A legal practitioner representing a party in proceedings under Part VII must give the party documents containing the information prescribed under section 12D (about Part VII proceedings).

Note:          Section 63DA also imposes information‑giving obligations on legal practitioners dealing with people involved in Part VII proceedings.

             (4)  A legal practitioner does not have to comply with subsection (1), (2) or (3) if the practitioner has reasonable grounds to believe that the person has already been given documents containing the prescribed information mentioned in that subsection.

             (5)  A legal practitioner does not have to comply with subsection (2) if the practitioner considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.

12F  Obligations on principal executive officers of courts

Obligation to give prescribed information

             (1)  The principal executive officer of a court that has jurisdiction under this Act must ensure that any person who is considering instituting proceedings under this Act is, on the first occasion the person deals with a registry of the court, given documents containing the information prescribed under:

                     (a)  section 12B (about non‑court based family services and court’s processes and services); and

                     (b)  section 12C (about reconciliation).

Obligation to respond to requests for information

             (2)  The principal executive officer of a court that has jurisdiction under this Act must ensure that, if a person involved in proceedings under this Act requests an officer or staff member of the court for information about family counselling services or family dispute resolution services, the person is given documents containing information about those services.

Note:          See subsection 4(1AA) for people who are taken to be involved in proceedings.

12G  Obligations on family counsellors, family dispute resolution practitioners and arbitrators

             (1)  A family counsellor, family dispute resolution practitioner or arbitrator who deals with a married person considering instituting:

                     (a)  proceedings for a divorce order in relation to the marriage; or

                     (b)  financial or Part VII proceedings in relation to the marriage;

must give the married person (and in appropriate cases, that person’s spouse) documents containing the information prescribed under 12C (about reconciliation).

Note:          Section 63DA also imposes information‑giving obligations on family counsellors and family dispute resolution practitioners (not arbitrators) dealing with people involved in Part VII proceedings.

             (2)  A family counsellor, family dispute resolution practitioner or arbitrator does not have to comply with subsection (1), if he or she:

                     (a)  has reasonable grounds to believe that the person has already been given documents containing the prescribed information or

                     (b)  considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.


 

Part IIIBCourt’s powers in relation to court and non‑court based family services

Division 1Introduction

13A  Objects of this Part

             (1)  The objects of this Part are:

                     (a)  to facilitate access to family counselling:

                              (i)  to help married couples considering separation or divorce to reconcile; and

                             (ii)  to help people adjust to separation or divorce; and

                            (iii)  to help people adjust to court orders under this Act; and

                     (b)  to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and

                     (c)  to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and

                     (d)  to give the court the power to require parties to proceedings under this Act to make use of court or non‑court based family services appropriate to the needs of the parties.

             (2)  The object mentioned in paragraph (1)(b) also lies behind the general requirement in section 60I for family dispute resolution services to be used before applications for orders under Part VII are made.


 

Division 2Help with reconciliation

13B  Court to accommodate possible reconciliations

             (1)  A court exercising jurisdiction in:

                     (a)  proceedings for a divorce order; or

                     (b)  financial or part VII proceedings instituted by a party to a subsisting marriage;

must consider, from time to time, the possibility of a reconciliation between the parties to the marriage.

             (2)  If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation.

             (3)  If the court adjourns the proceedings under subsection (2), the court must advise the parties to attend family counselling, or use the services of another appropriate person or organisation.

Note:          Before advising the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

             (4)  If, after an adjournment under subsection (2), either of the parties requests that the proceedings resume, the court must resume the proceedings as soon as practicable.


 

Division 3Referrals to family counselling, family dispute resolution and other family services

13C  Court may refer parties to family counselling, family dispute resolution and other family services

             (1)  A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

                     (a)  that one or more of the parties to the proceedings attend family counselling;

                     (b)  that the parties to the proceedings attend family dispute resolution;

                     (c)  that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

Note 1:       Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

Note 2:       The court can also order parties to attend appointments with a family consultant (see section 11F).

             (2)  The court may suggest a particular purpose for the attendance or participation.

             (3)  The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.

Note:          For example, the participation of children, grandparents or other relatives may be encouraged.

             (4)  The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.

             (5)  The court may make orders under this section:

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  a party to the proceedings; or

                             (ii)  a lawyer independently representing a child’s interests under an order made under section 68L.

13D  Consequences of failure to comply with order under section 13C

             (1)  If a party fails to comply with an order of a court under section 13C, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court.

             (2)  On receiving the report, the court may make any further orders it considers appropriate.

             (3)  The court may make orders under subsection (2):

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  a party to the proceedings; or

                             (ii)  a lawyer independently representing a child’s interests under an order made under section 68L.


 

Division 4Court’s role in relation to arbitration of disputes

13E  Court may refer Part VIII proceedings to arbitration

             (1)  With the consent of all of the parties to the proceedings, a court exercising jurisdiction in Part VIII proceedings may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration.

             (2)  If the court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make any additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.

13F  Court may make orders to facilitate arbitration of certain disputes

                   A court that has jurisdiction under this Act may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.

13G  Family Court and Federal Magistrates Court may determine questions of law referred by arbitrator

             (1)  An arbitrator of section 13E arbitration or relevant property or financial arbitration may, at any time before making an award in the arbitration, refer a question of law arising in relation to the arbitration for determination by:

                     (a)  a single judge of the Family Court; or

                     (b)  a single judge of the Family Court of a State; or

                     (c)  the Federal Magistrates Court.

             (2)  The arbitrator may do so:

                     (a)  on his or her own initiative; or

                     (b)  at the request of one or more of the parties to the arbitration if the arbitrator considers it appropriate to do so.

             (3)  The arbitrator must not make an award in the arbitration before the judge or Federal Magistrates Court has either:

                     (a)  determined the question of law; or

                     (b)  remitted the matter to the arbitrator having found that no question of law arises.

13H  Awards made in arbitration may be registered in court

             (1)  A party to an award made in section 13E arbitration or in relevant property or financial arbitration may register the award:

                     (a)  in the case of section 13E arbitration—in the court that ordered the arbitration; or

                     (b)  otherwise—in a court that has jurisdiction under this Act.

             (2)  An award registered under subsection (1) has effect as if it were a decree made by that court.

13J  Family Court or Federal Magistrates Court can review registered awards

             (1)  A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:

                     (a)  a single judge of the Family Court; or

                     (b)  a single judge of the Family Court of a State; or

                     (c)  the Federal Magistrates Court.

Note:          There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).

             (2)  On a review of an award under this section, the judge or Federal Magistrates Court may:

                     (a)  determine all questions of law arising in relation to the arbitration; and

                     (b)  make such decrees as the judge or Federal Magistrates Court thinks appropriate, including a decree affirming, reversing or varying the award.

13K  Family Court and Federal Magistrates Court may set aside registered awards

             (1)  If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:

                     (a)  the Family Court; or

                     (b)  the Federal Magistrates Court; or

                     (c)  a Family Court of a State;

the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.

             (2)  The court may only make a decree under subsection (1) if the court is satisfied that:

                     (a)  the award or agreement was obtained by fraud (including non‑disclosure of a material matter); or

                     (b)  the award or agreement is void, voidable or unenforceable; or

                     (c)  in the circumstances that have arisen since the award or agreement was made it is 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 between the parties and the arbitrator, was conducted.


 

Part IVThe Family Court of Australia

Division 1Interpretation

20  Interpretation

                   In this Part, unless the contrary intention appears:

Chief Judge means the Chief Judge of the Court, and includes the Deputy Chief Judge or a Judge Administrator if the Deputy Chief Judge or Judge Administrator is for the time being performing the duties and exercising the powers of the Chief Judge.

Court means the Family Court of Australia.

Deputy Chief Judge means the Deputy Chief Judge of the Court.

Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

Judge Administrator means a Judge Administrator of the Court.

Principal Registrar means the Principal Registrar of the Court.


 

Division 2The Family Court of Australia

21  Creation of Court

             (1)  A Court, to be known as the Family Court of Australia, is created by this Act.

             (2)  The Court is a superior court of record.

             (3)  The Court consists of:

                     (a)  a Chief Judge, who shall be called the Chief Justice of the Court;

                     (b)  a Deputy Chief Judge, who shall be called the Deputy Chief Justice of the Court; and

                     (c)  Judge Administrators, Senior Judges and other Judges, not exceeding, in total, such number as is prescribed.

             (4)  Regulations made pursuant to subsection (3) shall take effect at the expiration of 7 sitting days after the regulations have been laid before each House of the Parliament.

21A  Divisions of Court

                   For the purposes of the organization and conduct of the business of the Court, the Court comprises 2 Divisions, namely, the Appeal Division and the General Division.

21B  Arrangement of business of Court

             (1)  The Chief Judge is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to the Judge or Judges who is or are to constitute the Court, or the Full Court, in particular matters or classes of matters.

             (2)  The Deputy Chief Judge shall assist the Chief Judge in the exercise of the functions conferred on the Chief Judge by subsection (1).

             (3)  A Judge Administrator shall, in relation to such part of Australia as is from time to time assigned by the Chief Judge, assist the Chief Judge and the Deputy Chief Judge in the exercise of such of the functions conferred on the Chief Judge by subsection (1) as are from time to time so assigned.


 

Division 3Judges

22  Appointment, removal and resignation of Judges

             (1)  A Judge:

                     (a)  shall be appointed by the Governor‑General; and

                     (b)  shall not be removed except by the Governor‑General, on an address from both Houses of the Parliament in the same session praying for the Judge’s removal on the grounds of proved misbehaviour or incapacity.

             (2)  A person shall not be appointed as a Judge unless:

                     (a)  the person is or has been a Judge of another court created by the Parliament or of a court of a State or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and

                     (b)  by reason of training, experience and personality, the person is a suitable person to deal with matters of family law.

       (2AA)  The members of the Appeal Division of the Court are the Chief Judge, the Deputy Chief Judge and such other Judges as are assigned to the Appeal Division under this section.

        (2AB)  The Governor‑General may, in the commission of appointment of a Judge or, with the consent of the Judge but not otherwise, at a later time assign a Judge to the Appeal Division.

        (2AC)  The Governor‑General shall not assign a Judge to the Appeal Division under subsection (2AB) if, as a result of that assignment, the number of members of the Appeal Division assigned under that subsection would exceed the prescribed number.

        (2AF)  A Judge (other than the Chief Judge or the Deputy Chief Judge) who is not assigned to the Appeal Division shall be deemed to be assigned to the General Division.

     (2AFA)  Where a person holding office as a Senior Judge or Judge of the Court is appointed Deputy Chief Judge or a Judge Administrator, the person retains that office as Senior Judge or Judge, as the case may be, and may resign the office of Deputy Chief Judge or Judge Administrator without resigning that first‑mentioned office.

        (2AG)  Notwithstanding anything contained in any other Act, a person may hold office at the one time as a Judge of the Court and as a Judge of a prescribed court or of 2 or more prescribed courts.

       (2AH)  In subsection (2AG), prescribed court means:

                     (a)  a court (other than the Court) created by the Parliament; or

                     (b)  the Supreme Court of the Northern Territory.

          (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 or her tenure of that office of Judge of the Family Court of Australia or his or her 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 or her 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.

             (3)  A Judge may resign office by writing under his or her hand addressed to the Governor‑General.

          (3A)  The resignation takes effect on:

                     (a)  the day on which it is received by the Governor‑General; or

                     (b)  a later day specified in the resignation document.

             (4)  A Judge or former Judge is entitled to be styled “The Honourable”.

23  Seniority

             (1)  The Chief Judge is senior to all other Judges of the Court.

             (2)  The Deputy Chief Judge is senior to all other Judges of the Court other than the Chief Judge.

             (3)  Judges appointed as Judge Administrators or assigned to the Appeal Division before, or not later than 3 months after, the commencement of section 13 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 have seniority next to the Deputy Chief Judge, and have such seniority in relation to each other as they had immediately before that commencement.

             (4)  The remaining Judge Administrators and Judges assigned to the Appeal Division have seniority next to the Judges to whom subsection (3) applies according to the days on which their appointments as Judge Administrators and their assignments to the Appeal Division (whichever first occurred) took effect.

             (5)  Where, because 2 or more appointments as Judge Administrator and assignments to the Appeal Division took effect on the same day, subsection (4) does not determine priority between the Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the Governor‑General.

             (6)  The Senior Judges not assigned to the Appeal Division have seniority next to the Judges to whom subsection (4) applies according to the days on which their appointments as Senior Judges took effect.

             (7)  Where, because 2 or more commissions of appointment as Senior Judge took effect on the same day, subsection (6) does not determine seniority between the Senior Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the Governor‑General.

             (8)  The Judges who are not Judge Administrators or Senior Judges and are not assigned to the Appeal Division have seniority next to the Senior Judges to whom subsection (6) applies according to the days on which their appointments as Judges took effect.

             (9)  Where, because 2 or more commissions of appointment as Judge took effect on the same day on or after the commencement of this subsection, subsection (8) does not determine seniority between the Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the Governor‑General.

           (10)  If:

                     (a)  a person’s commission of appointment as a Judge of a particular kind terminates; and

                     (b)  a new commission of appointment of the person as a Judge of that kind takes effect immediately after the termination;

the day of appointment of the person as a Judge of that kind is, for the purposes of this section, the day on which the earlier appointment took effect and not the day on which the later appointment took effect.

           (11)  Subsection (10) applies to the termination of a commission of appointment however it occurs (whether because of resignation or because of the expiration of the term of the appointment or otherwise).

24  Absence or illness of Chief Judge

             (1)  Whenever:

                     (a)  the Chief Judge is absent from Australia or from duty; or

                     (b)  there is a vacancy in the office of Chief Judge;

the Deputy Chief Judge or, if the Deputy Chief Judge is unavailable, the senior Judge Administrator who is in Australia and is available and willing to do so shall perform the duties and may exercise the powers of the Chief Judge.

             (2)  A Judge who is, under subsection (1), performing the duties and exercising the powers of the Chief Judge shall be called the Acting Chief Justice of the Court.

25  Salary and Allowances

             (1)  The Chief Judge, Deputy Chief Judge, Judge Administrators, Judges assigned to the Appeal Division, 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.

26  Oath or affirmation of allegiance and office

                   A Judge shall, before proceeding to discharge the duties of the office, take, before the Chief Justice or a Justice of the High Court of Australia or a Judge of the Family Court or of another court created by the Parliament, an oath or affirmation of allegiance in the form in the Schedule to the Constitution, and also an oath or affirmation in the following form:

       “I,                       , do swear that I will well and truly serve in the office of (Chief Judge, Deputy Chief Judge, Judge Administrator, Senior Judge or Judge, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill‑will, So help me God.”

or

       “I,                       , do solemnly and sincerely promise and declare that    ” (as above, omitting the words “So help me God”).


 

Division 4Judicial Registrars

26A  Judicial Registrars

                   The Governor‑General may appoint one or more Judicial Registrars of the Court.

26B  Powers of Judicial Registrars

             (1)  The Judges, or a majority of them, may make Rules of Court delegating to the Judicial Registrars all or any of the powers of the Court except the power to make an excluded child order (as defined in subsection (1A)) and the power to make an order setting aside a registered award under section 13K.

          (1A)  An excluded child order is:

                     (a)  a parenting order to the extent to which it provides that:

                              (i)  a child is to live with a person; or

                             (ii)  a child is to spend time with a person; or

                            (iii)  a child is to communicate with a person; or

                            (iv)  a person is to have parental responsibility for a child; or

                     (b)  an order in relation to the welfare of a child;

other than:

                     (c)  a parenting order made under paragraph 70NEB(1)(b) or an order made under paragraph 70NFB(2)(c) that has the same effect as such a parenting order; or

                     (d)  an order until further order; or

                     (e)  an order made in undefended proceedings; or

                      (f)  an order made with the consent of all the parties to the proceedings.

             (2)  Without limiting the generality of subsection (1), the Judges, or a majority of them, may make Rules of Court under that subsection:

                     (a)  delegating to the Judicial Registrars all or any of the powers of the Court that could be delegated to the Registrars of the Court; and

                     (b)  delegating to the Judicial Registrars powers of the Court by reference to powers of the Court that have been delegated to the Registrars of the Court under section 37A.

             (3)  A power delegated to the Judicial Registrars shall, when exercised by a Judicial Registrar, be deemed to have been exercised by the Court or a Judge, as the case requires.

             (4)  The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge.

             (5)  The provisions of this Act, the regulations and the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, under a delegation made under subsection (1), exercisable by a Judicial Registrar, apply in relation to an exercise of the power by a Judicial Registrar as if references to the Court, or to a court exercising jurisdiction under this Act, were references to a Judicial Registrar.

             (6)  The Judicial Registrars shall have, in addition to the powers delegated to them under subsection (1), such other powers (if any) as are conferred on them by this Act, the regulations and the standard Rules of Court.

Note:          Powers to make Rules of Court are also contained in sections 37A, 109A and 123.

26C  Review of decisions of Judicial Registrars

             (1)  A party to proceedings in which a Judicial Registrar has exercised a power delegated under subsection 26B(1) may, within the time prescribed by, or within such further time as is allowed in accordance with, Rules of Court made by the Judges or a majority of them, apply to the Court to review the exercise of the power.

             (2)  The Court may, on application made under subsection (1) or of its own motion, review the exercise by a Judicial Registrar of a power delegated under subsection 26B(1), and may make such orders as it considers appropriate in relation to the matter in relation to which the power was exercised.

             (3)  The Court may, on the application of a party or of its own motion, refer an application under subsection (1) to a Full Court of the Court.

26D  Exercise of delegated powers by Court

             (1)  Where:

                     (a)  an application for the exercise of a power delegated under subsection 26B(1) is to be, or is being, heard by a Judicial Registrar; and

                     (b)  the Judicial Registrar considers that it is not appropriate for the application to be determined by a Judicial Registrar;

the Judicial Registrar shall not hear, or continue to hear, the application, and shall make appropriate arrangements for the application to be heard by the Court.

             (2)  Where:

                     (a)  a power delegated under subsection 26B(1) is proposed to be exercised in a particular case by a Judicial Registrar; but

                     (b)  the Judicial Registrar has not commenced to exercise the power in that case;

a Judge may, on application by a person who would be a party to the proceedings before the Judicial Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge.

             (3)  Where an application is made to a Judge under subsection (2) seeking an order that, in a particular case, a power be exercised by a Judge, the Judicial Registrar shall not commence to exercise the power in that case until the application has been determined.

26E  Application of the Legislative Instruments Act 2003 to rules of court

                   The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made under sections 26B and 26C of this Act:

                     (a)  as if a reference to a legislative instrument were a reference to a rule of court; and

                     (b)  as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges; and

                     (c)  subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.

26F  Independence of Judicial Registrars

                   Notwithstanding any provision of this Act or any other law, a Judicial Registrar is not subject to the direction or control of any person or body in the exercise of a power delegated under subsection 26B(1).

26G  Judicial Registrars hold office on full time or part time basis

                   A Judicial Registrar may be appointed on a full time or part time basis.

26H  Qualifications for appointment etc.

             (1)  A person shall not be appointed as a Judicial Registrar unless:

                     (a)  the person is or has been a Judge of a court created by the Parliament or of a court of a State or the Northern Territory or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and

                     (b)  the person is, by reason of training, experience and personality, a suitable person to deal with matters of family law.

26I  Term of office

             (1)  A Judicial Registrar:

                     (a)  shall be appointed with effect from the day specified in the instrument of appointment; and

                     (b)  holds office, subject to this Act:

                              (i)  for such term (not exceeding 7 years) as is specified in the instrument of appointment, but is eligible for re‑appointment; or

                             (ii)  if the instrument of appointment so provides, until attaining 65 years of age, but is eligible for re‑appointment.

26J  Remuneration and allowances

             (1)  A Judicial Registrar shall be paid such remuneration as is determined by the Remuneration Tribunal.

             (2)  A Judicial Registrar shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

26JA  Leave of absence

             (1)  A person appointed as a full‑time Judicial Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Chief Judge may grant a person appointed as a full‑time Judicial Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chief Judge, with the approval of the Attorney‑General, determines.

26K  Resignation

             (1)  A Judicial Registrar may resign office by writing under his or her hand addressed to the Governor‑General.

             (2)  The resignation takes effect on:

                     (a)  the day on which it is received by the Governor‑General; or

                     (b)  a later day specified in the resignation document.

26L  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of a Judicial Registrar for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General shall terminate the appointment of a Judicial Registrar if the Judicial Registrar becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit.

26M  Oath or affirmation of office

                   A Judicial Registrar shall, before proceeding to discharge the duties of the office, take, before the Chief Judge or another Judge of the Family Court, an oath or affirmation in the following form:

       “I,                       , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law and that I will well and truly serve Her in the office of Judicial Registrar of the Family Court of Australia, So help me God.”

or

       “I,                       , do solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law and that I will well and truly serve Her in the office of Judicial Registrar of the Family Court of Australia.”

26N  Terms and conditions of appointment not provided for by Act

                   A Judicial Registrar holds office on such terms and conditions (if any) in relation to matters not provided by this Act as are determined, in writing, by the Governor‑General.


 

Division 5Jurisdiction and exercise of jurisdiction

27  Place of sitting

             (1)  Sittings of the Court must be held from time to time as required and the Court may sit at any place in Australia.

             (2)  The Court, in respect of proceedings, may be constituted by 2 or more Judges sitting at the same time, but in different places in Australia, using video link, audio link or other appropriate means to facilitate the Court sitting (split court).

Note:          Section 21B provides for the Chief Judge to make arrangements for the constitution of the Court for particular matters.

             (3)  For the purpose of determining which law to apply in proceedings in which a split court is sitting, the Court is taken to be sitting at the place at which the presiding Judge is sitting.

27A  Change of venue

                   The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

28  Exercise of jurisdiction

             (1)  The original jurisdiction of the Court may be exercised by one or more Judges.

             (2)  The jurisdiction of the Court in an appeal from a court of summary jurisdiction may be exercised by one Judge or by a Full Court.

          (2A)  Nothing in this Act prevents a Judge who is a member of the Appeal Division from exercising the jurisdiction of the Court that, under subsection (1) or (2), may be exercised by one or more Judges.

             (3)  The jurisdiction of the Court in an appeal from a Judge of the Court or of the Supreme Court of a State or Territory shall be exercised by a Full Court.

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

             (4)  Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of proceedings and before the proceedings have been determined, one of the Judges constituting the Full Court dies, resigns his or her office, ceases to be a member of the Court by reason that the term of his or her appointment expires or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceedings, then the hearing and determination, or the determination, of the proceedings may be completed:

                     (a)  if only 2 Judges remain and one of those Judges is assigned to the Appeal Division, or if more than 2 Judges remain and a majority of those Judges are assigned to the Appeal Division—by the Court constituted by the remaining Judges; or

                     (b)  with the consent of the parties—by the Court constituted by the remaining Judge or Judges and an additional Judge or Judges, where a majority of the Judges constituting the Court are assigned to the Appeal Division.

             (5)  A Full Court constituted in accordance with subsection (4) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court as previously constituted.

             (6)  The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court.

30  Court divided in opinion

                   If the Judges constituting the Court for the purposes of any proceedings are divided in opinion as to the judgment to be pronounced, judgment shall be pronounced according to the opinion of the majority, if there is a majority, but, if the Judges are equally divided in opinion:

                     (a)  in the case of an appeal from a judgment of the Family Court constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from shall be affirmed; and

                     (b)  in any other case—the opinion of the Chief Judge or, if he is not one of the Judges constituting the Court, the opinion of the most senior of those Judges, shall prevail.

31  Original jurisdiction of Family Court

             (1)  Jurisdiction is conferred on the Family Court with respect to:

                     (a)  matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act;

                     (b)  matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act;

                     (c)  matters arising under a law of a Territory (other than the Northern Territory) concerning:

                              (i)  the adoption of children;

                            (iv)  the property of the parties to a marriage or either of them, being matters arising between those parties other than matters referred to in the definition of matrimonial cause in subsection 4(1); or

                             (v)  the rights and status of a person who is an ex‑nuptial child, and the relationship of such a person to his parents; and

                     (d)  matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.

             (2)  Subject to such restrictions and conditions (if any) as are contained in section 111AA, the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of the Court.

33  Jurisdiction in associated matters

                   To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court.

33A  Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Magistrates Court

             (1)  Proceedings must not be instituted in the Family Court in respect of a matter if:

                     (a)  the Federal Magistrates Court has jurisdiction in that matter; and

                     (b)  proceedings in respect of an associated matter are pending in the Federal Magistrates Court.

             (2)  Subsection (1) does not apply to:

                     (a)  proceedings for a divorce order; or

                     (b)  proceedings instituted in the Family Court under Division 13A of Part VII or under Part XIII or XIIIA.

             (3)  If:

                     (a)  proceedings are instituted in the Family Court in contravention of subsection (1); and

                     (b)  the proceedings are subsequently transferred to the Federal Magistrates Court;

the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.

33B  Discretionary transfer of proceedings to the Federal Magistrates Court

             (1)  If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Magistrates Court.

             (2)  The Family Court may transfer a proceeding under subsection (1):

                     (a)  on the application of a party to the proceeding; or

                     (b)  on its own initiative.

             (3)  The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Magistrates Court under subsection (1).

             (4)  In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Magistrates Court under subsection (1).

             (5)  Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Magistrates Court.

             (6)  In deciding whether to transfer a proceeding to the Federal Magistrates Court under subsection (1), the Family Court must have regard to:

                     (a)  any standard Rules of Court made for the purposes of subsection (4); and

                     (b)  whether proceedings in respect of an associated matter are pending in the Federal Magistrates Court; and

                     (c)  whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

                     (d)  the interests of the administration of justice.

             (7)  If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Magistrates Court.

             (8)  An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).

          (8A)  The Federal Magistrates Court has jurisdiction in a matter that:

                     (a)  is the subject of a proceeding transferred to the court under this section; and

                     (b)  is a matter in which the court does not have jurisdiction apart from this subsection.

To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.

             (9)  The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.

           (10)  This section does not apply to proceedings of a kind specified in the regulations.

33C  Mandatory transfer of proceedings to the Federal Magistrates Court

             (1)  If a proceeding of a kind specified in regulations made for the purposes of this subsection is pending in the Family Court, the Family Court must, before going on to hear and determine the proceeding, transfer the proceeding to the Federal Magistrates Court.

             (2)  If a proceeding is transferred under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceedings by the Federal Magistrates Court.

             (3)  An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).

          (3A)  The Federal Magistrates Court has jurisdiction in a matter that:

                     (a)  is the subject of a proceeding transferred to the court under this section; and

                     (b)  is a matter in which the court does not have jurisdiction apart from this subsection.

To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.

             (4)  The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.

             (5)  The Minister must cause a copy of regulations (transfer regulations) made for the purposes of subsection (1) to be tabled in each House of the Parliament.

             (6)  Either House may, following a motion upon notice, pass a resolution disallowing the transfer regulations. To be effective, the resolution must be passed within 15 sittings days of the House after the copy of the transfer regulations was tabled in the House.

             (7)  If neither House passes such a resolution, the transfer regulations take effect on the day immediately after the last day upon which such a resolution could have been passed.

             (8)  Subsections (5), (6) and (7) have effect despite anything in:

                     (a)  the Acts Interpretation Act 1901; or

                     (b)  the Legislative Instruments Act 1999.

34  Issue of certain writs etc.

             (1)  The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

35  Contempt of court

                   Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.


 

Division 6Registries and officers

36  Registries

             (1)  The Governor‑General shall cause such Registries of the Court to be established as the Governor‑General thinks fit.

             (2)  Unless and until the regulations otherwise provide, the Principal Registry shall be located in Sydney.

37  Officers of Court

             (1)  In relation to a proceeding under this Act, the officers of the Court have such duties, powers and functions as are given by this Act or the standard Rules of Court or by the Chief Judge.

             (2)  The Principal Registrar of the Court may, subject to this Act, the regulations, the standard Rules of Court and any directions of the Chief Judge, give directions to the officers of the Court in relation to the manner in which the functions and duties of those officers are to be performed and the powers of those officers are to be exercised in relation to proceedings under this Act.

             (3)  Despite subsection (2), the Principal Registrar must not give directions that relate to an officer’s functions as a family consultant, family counsellor or family dispute resolution practitioner.

37A  Delegation of powers to Registrars

             (1)  The Judges, or a majority of them, may, subject to subsection (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court:

                     (a)  the power to dispense with the service of any process under this Act;

                     (b)  the power to make orders in relation to substituted service;

                     (c)  the power, in proceedings under this Act, to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to the proceedings or of any other person;

                     (d)  the power, in proceedings under this Act, to direct a party to the proceedings to answer particular questions;

                     (e)  the power to make orders under:

                              (i)  sections 11F and 11G; and

                             (ii)  sections 13C and 13D; and

                            (iii)  subsection 65LA(1); and

                            (iv)  paragraph 70NEB(1)(a);

                    (ea)  the power to direct a family consultant to give a report under section 62G;

                      (f)  the power, in proceedings under this Act, to make:

                              (i)  an order under section 66Q, 67E or 77; or

                             (ii)  an order for the payment of maintenance pending the disposal of the proceedings;

                     (g)  the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings;

                     (h)  the power, in proceedings under this Act, to make an order adjourning the hearing of the proceedings;

                      (j)  the power under section 117 to make an order as to costs;

                    (m)  the power to make an order exempting a party to proceedings under this Act from compliance with a provision of the regulations or Rules of Court.

             (2)  The powers of the Court that may be delegated under subsection (1) do not include the power to make:

                     (a)  a divorce order in proceedings that are defended; or

                     (b)  a decree of nullity of marriage; or

                     (c)  a declaration as to the validity of:

                              (i)  a marriage; or

                             (ii)  a divorce; or

                            (iii)  the annulment of a marriage; or

                     (d)  an excluded child order (as defined in subsection (2A)); or

                     (e)  an order setting aside a registered award under section 13K.

          (2A)  An excluded child order is:

                     (a)  a parenting order to the extent to which it provides that:

                              (i)  a child is to live with a person; or

                             (ii)  a child is to spend time with a person; or

                            (iii)  a child is to communicate with a person; or

                            (iv)  a person is to have parental responsibility for a child; or

                     (b)  an order in relation to the welfare of a child;

other than:

                     (c)  an order until further order; or

                     (d)  an order made in undefended proceedings; or

                     (e)  an order made with the consent of all the parties to the proceedings.

             (3)  A power delegated by applicable Rules of Court under subsection (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires.

             (4)  The delegation of a power by applicable Rules of Court under subsection (1) does not prevent the exercise of the power by the Court or a Judge.

             (5)  If the power referred to in paragraph (1)(f) is delegated under subsection (1), a Registrar shall not exercise the power on application by a party to proceedings under this Act unless:

                     (a)  the other party to the proceedings appears at the hearing of the application; or

                     (b)  the Registrar is satisfied that notice of the intention of the first‑mentioned party to make the application has been served on the other party.

             (6)  If the power referred to in paragraph (1)(j) is delegated under subsection (1), a Registrar shall not exercise the power except in relation to costs of or in connection with an application heard by a Registrar.

             (7)  The provisions of this Act, the regulations, the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, by virtue of a delegation under subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to a Registrar.

             (8)  Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to a delegation under subsection (1).

             (9)  A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.

           (10)  The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.

           (11)  Where:

                     (a)  an application for the exercise of a power delegated under subsection (1) is to be, or is being, heard by a Registrar; and

                     (b)  the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under the delegation;

the Registrar shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.

           (12)  Where:

                     (a)  a power delegated under subsection (1) is proposed to be exercised in a particular case by a Registrar; but

                     (b)  the Registrar has not commenced to exercise the power in that case;

a Judge may, on application by a person who would be a party to the proceedings before the Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge.

           (13)  Where an application is made to a Judge under subsection (12) seeking an order that, in a particular case, a power be exercised by a Judge, the Registrar shall not commence to exercise the power in that case until the application has been determined.

           (14)  The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made under this section:

                     (a)  as if a reference to a legislative instrument were a reference to a rule of court; and

                     (b)  as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges; and

                     (c)  subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.

           (15)  In this section, Registrar means the Principal Registrar, a Registrar or a Deputy Registrar of the Court.

Note:          Powers to make Rules of Court are also contained in sections 26B, 109A and 123.

37B  Independence of Registrars

             (1)  Notwithstanding any provision of this Act other than subsection (3), and any provision of the Public Service Act 1999 or any other law, in the performance of a function or the exercise of a power under this Act, under the regulations or under the standard Rules of Court (other than a power delegated by standard Rules of Court under subsection 37A(1)):

                     (a)  the Principal Registrar is subject to the direction and control of the Chief Judge and is not subject to the direction or control of any other person or body;

                     (b)  a Registrar is subject to the direction and control of:

                              (i)  the Chief Judge;

                             (ii)  any other Judge authorized by the Chief Judge to direct and control that Registrar; and

                            (iii)  the Principal Registrar;

                            and is not subject to the direction or control of any other person or body; and

                     (c)  a Deputy Registrar is subject to the direction and control of:

                              (i)  the Chief Judge;

                             (ii)  any other Judge authorized by the Chief Judge to direct and control that Deputy Registrar;

                            (iii)  the Principal Registrar; and

                            (iv)  the Registrars;

                            and is not subject to the direction or control of any other person or body.

             (2)  Without limiting the generality of subsection (1), the Principal Registrar may, subject to this Act and to any directions of the Chief Judge, make arrangements as to the Registrars or Deputy Registrars who are to perform any functions or exercise any power under this Act, under the regulations or under the standard Rules of Court (including a power delegated by standard Rules of Court under subsection 37A(1)) in particular matters or classes of matters.

             (3)  The powers of the Principal Registrar in relation to the Registrars and the Deputy Registrars, and the powers of the Registrars in relation to the Deputy Registrars, shall be exercised subject to the directions of the Chief Judge.

             (4)  An Agency Head (within the meaning of the Public Service Act 1999) cannot take action under section 15 of the Public Service Act 1999 against the Principal Registrar, a Registrar or a Deputy Registrar unless such action is requested by the Chief Judge.

             (5)  In this section, Registrar means a Registrar of the Court.

37C  Oath or affirmation of office

                   A Principal Registrar, Registrar or Deputy Registrar shall, before proceeding to discharge the duties of the office, take, before the Chief Judge or another Judge of the Family Court, an oath or affirmation in the following form:

         “I,                         , do swear that I will well and truly serve in the office of (Principal Registrar, Registrar or Deputy Registrar, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or illwill, So help me God.”

or

         “I,                         , do solemnly and sincerely promise and declare that           ” (as above, omitting the words “So help me God”).


 

Division 7Practice and procedure

38  Practice and procedure

             (1)  Subject to this Act, the practice and procedure of the Court shall be in accordance with the regulations and the standard Rules of Court.

             (2)  In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

          (2A)  This section does not apply in relation to proceedings that are transferred to the Court from the Federal Court of Australia.

             (3)  In this section, practice and procedure includes all matters with respect to which regulations or standard Rules of Court may be made under this Act.


 

Part IVAManagement of the Court

Division 1Management responsibilities of the Chief Judge and the Chief Executive Officer

38A  Management of administrative affairs of Court

             (1)  The Chief Judge is responsible for managing the administrative affairs of the Court.

             (2)  For that purpose, the Chief Judge has power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth:

                     (a)  entering into contracts; and

                     (b)  acquiring or disposing of personal property.

             (3)  The powers given to the Chief Judge by subsection (2) are in addition to any powers given to the Chief Judge by any other provision of this Act or by any other Act.

             (4)  Subsection (2) does not authorise the Chief Judge to:

                     (a)  acquire any interest or right that would constitute an interest in land for the purposes of the Lands Acquisition Act 1989; or

                     (b)  enter into a contract under which the Commonwealth is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount, except with the approval of the Attorney‑General.

38B  Chief Executive Officer

                   In the management of the administrative affairs of the Court, the Chief Judge is assisted by a Chief Executive Officer.


 

Division 1AAdministration of Court’s family services

38BA  Chief Executive Officer has functions of family consultants

             (1)  The Chief Executive Officer has all of the functions conferred on family consultants by section 11A, and any associated powers and duties.

             (2)  Without limiting subsection (1), sections 11C (admissibility of communications with family consultants) and 11D (immunity of family consultants) apply to the Chief Executive Officer while the Chief Executive Officer is performing those functions.

             (3)  The Chief Executive Officer is responsible for administering the functions of family consultants.

38BB  Chief Executive Officer may delegate powers and functions that relate to family consultants

             (1)  The Chief Executive Officer may, in writing, delegate to a family consultant any of the Chief Executive Officer’s powers, functions and duties in relation to the functions of family consultants mentioned in section 11A.

             (2)  A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Chief Executive Officer.

38BC  Chief Executive Officer may give directions that relate to family services functions

                   The Chief Executive Officer may give directions that relate to:

                     (a)  a Court officer’s functions as a family consultant; or

                     (b)  a Court officer’s or staff member’s functions as a family counsellor or family dispute resolution practitioner.

38BD  Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner

             (1)  The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family counselling under this Act.

             (2)  The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family dispute resolution under this Act.

             (3)  If an officer who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section:

                     (a)  section 11C (admissibility of communications with family consultants) does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and

                     (b)  the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a person involved in those proceedings.


 

Division 2Appointment, powers etc. of Chief Executive Officer

38C  Appointment of Chief Executive Officer

                   The Chief Executive Officer is appointed by the Governor‑General on the nomination of the Chief Judge.

38D  Powers of Chief Executive Officer

             (1)  The Chief Executive Officer has power to do all things necessary or convenient to be done for the purpose of assisting the Chief Judge under section 38B.

             (2)  In particular, the Chief Executive Officer may act on behalf of the Chief Judge in relation to the administrative affairs of the Court.

             (3)  The Chief Judge may give the Chief Executive Officer directions regarding the exercise of his or her powers.

38E  Remuneration of Chief Executive Officer

             (1)  The Chief Executive Officer is to be paid the remuneration and allowances determined by the Remuneration Tribunal.

             (2)  If there is no determination in force, the Chief Executive Officer is to be paid such remuneration as is prescribed.

             (3)  The Chief Executive Officer is to be paid such other allowances as are prescribed.

             (4)  Remuneration and allowances payable to the Chief Executive Officer under this section are to be paid out of money appropriated by the Parliament for the purposes of the Court.

38F  Terms and conditions of appointment of Chief Executive Officer

             (1)  The Chief Executive Officer holds office for the period (not longer than 5 years) specified in the instrument of his or her appointment, but is eligible for re‑appointment.

             (4)  The Chief Executive Officer holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Chief Judge.

38G  Leave of absence

             (1)  The Chief Executive Officer has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Chief Judge may grant the Chief Executive Officer leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chief Judge, with the approval of the Attorney‑General, determines.

38H  Resignation

                   The Chief Executive Officer may resign by giving a signed notice of resignation to the Governor‑General.

38J  Outside employment of Chief Executive Officer

             (1)  Except with the consent of the Chief Judge, the Chief Executive Officer must not engage in paid employment outside the duties of his or her office.

             (2)  The reference in subsection (1) to paid employment does not include service in the Defence Force.

38K  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General is required to terminate the appointment of the Chief Executive Officer if he or she:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

                     (b)  is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  engages in paid employment contrary to section 38J; or

                     (d)  fails, without reasonable excuse, to comply with section 38L.

             (3)  The Governor‑General may, with the consent of the Chief Executive Officer who is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990;

retire the Chief Executive Officer from office on the ground of incapacity.

             (4)  In spite of anything contained in this section, if the Chief Executive Officer:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

he or she is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

             (5)  In spite of anything contained in this section, if the Chief Executive Officer:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

he or she is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

38L  Disclosure of interests by Chief Executive Officer

                   The Chief Executive Officer must give written notice to the Chief Judge of all direct or indirect pecuniary interests that the Chief Executive Officer has or acquires in any business or in any body corporate carrying on a business.

38M  Acting Chief Executive Officer

             (1)  The Chief Judge may, in writing, appoint a person to act in the office of Chief Executive Officer:

                     (a)  during a vacancy in the office (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

             (2)  A person appointed to act in the office of Chief Executive Officer during a vacancy may not continue to act in that office for more than 12 months.

             (3)  Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion for the person to act had not arisen or had ceased.


 

Division 3Other officers and staff of Registries

38N  Personnel other than the Chief Executive Officer

             (1)  In addition to the Chief Executive Officer, there are the following officers of the Court:

                     (a)  a Principal Registrar of the Court;

                     (b)  such Registrars and Deputy Registrars of the Court as are necessary;

                     (c)  such Registry Managers of the Court as are necessary;

                     (d)  such family consultants as are necessary;

                     (e)  the Marshal of the Court;

                      (f)  such Deputy Marshals of the Court as are necessary.

             (2)  The officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as are given to them by this Act, by the standard Rules of Court or by the Chief Judge.

             (3)  The officers of the Court are appointed by the Chief Executive Officer.

             (4)  The officers of the Court, other than the Chief Executive Officer and the Deputy Marshals, are to be persons engaged under the Public Service Act 1999.

             (5)  The Deputy Marshals may be persons engaged under the Public Service Act 1999.

             (6)  The Chief Executive Officer may, on behalf of the Chief Judge, arrange with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the services of officers or employees of the Department or authority to be made available for the purposes of the Court.

             (7)  There are to be such staff of the Registries as are necessary.

             (8)  The staff of the Registries is to consist of persons engaged under the Public Service Act 1999.

38P  Marshal

             (1)  The Marshal of the Court is responsible for the service and execution of all process of the Court directed to the Marshal.

             (2)  The Marshal is also responsible for:

                     (a)  dealing, on behalf of the Court, with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court directed to members of any of those police forces; and

                     (b)  the security of the Court and the personal security of the Judges and officers of the Court; and

                     (c)  taking, receiving and detaining all persons committed to his or her custody by the Court; and

                     (d)  discharging such persons when so directed by the Court or otherwise required by law.

             (3)  A Deputy Marshal may, subject to any directions of the Marshal, exercise or perform any of the powers and functions of the Marshal.

             (4)  The Marshal or a Deputy Marshal may authorise persons to assist him or her in the exercise of any of his or her powers or the performance of any of his or her functions.

38Q  Statutory Agency etc. for purposes of Public Service Act

                   For the purposes of the Public Service Act 1999:

                     (a)  the Chief Executive Officer and the APS employees assisting the Chief Executive Officer together constitute a Statutory Agency; and

                     (b)  the Chief Executive Officer is the Head of that Statutory Agency.

38R  Engagement of consultants etc.

             (1)  The Chief Executive Officer may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Chief Executive Officer.

          (1A)  The Chief Executive Officer may engage persons to perform:

                     (a)  family counselling services under this Act; or

                     (b)  family dispute resolution services under this Act.

             (2)  An engagement under subsection (1) or (1A) is to be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.


 

Division 4Miscellaneous administrative matters

38S  Annual report

             (1)  As soon as practicable after 30 June in each year, the Chief Judge must prepare and give to the Attorney‑General a report of the management of the administrative affairs of the Court during the year.

             (2)  The report must include:

                     (a)  the financial statements required by section 49 of the Financial Management and Accountability Act 1997; and

                     (b)  an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997.

             (3)  The Attorney‑General must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

38W  Delegation of administrative powers of Chief Judge

                   The Chief Judge may, in writing, delegate all or any of his or her powers under section 38A to any one or more of the Judges.

38X  Proceedings arising out of administration of Court

                   Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Court under this Part, including any proceeding relating to anything done by the Chief Executive Officer under this Part, may be instituted by or against the Commonwealth, as the case requires.


 

Part VJurisdiction in matrimonial causes

  

39  Jurisdiction in matrimonial causes

             (1)  Subject to this Part, a matrimonial cause may be instituted under this Act:

                     (a)  in the Family Court; or

                     (b)  in the Supreme Court of a State or a Territory.

          (1A)  Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in the Federal Magistrates Court.

             (2)  Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in a Court of summary jurisdiction of a State or Territory.

             (3)  Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

                     (a)  is an Australian citizen;

                     (b)  is domiciled in Australia; or

                     (c)  is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

             (4)  Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if:

                     (a)  in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage—either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and

                     (b)  in any other case—any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.

          (4A)  In subsection (4), relevant date, in relation to proceedings, means:

                     (a)  if the application instituting the proceedings is filed in a court—the date on which the application is so filed; or

                     (b)  in any other case—the date on which the application instituting the proceedings is made.

             (5)  Subject to this Part and to section 111AA, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which:

                     (a)  matrimonial causes are instituted under this Act; or

                     (b)  matrimonial causes are continued in accordance with section 9; or

                     (d)  proceedings are instituted under regulations made for the purposes of section 109, 110, 111, 111A or 111B or of paragraph 125(1)(f) or (g) or under Rules of Court made for the purposes of paragraph 123(1)(r); or

                    (da)  proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or

                     (e)  proceedings are instituted under section 117A.

       (5AA)  Subject to this Part and to section 111AA, the Federal Magistrates Court has, and is taken always to have had, jurisdiction with respect to matters arising under this Act in respect of which matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act.

          (5A)  Subject to this Part and to section 111AA, the Federal Magistrates Court has jurisdiction with respect to matters arising under this Act in respect of which proceedings are instituted under:

                     (a)  regulations made for the purposes of section 109, 110, 111, 111A or 111B; or

                     (b)  regulations made for the purposes of paragraph 125(1)(f) or (g); or

                     (c)  section 117A; or

                     (d)  proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ.

             (6)  Subject to this Part and to section 111AA, each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Act in respect of which:

                     (a)  matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act; or

                     (b)  matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are continued in accordance with section 9; or

                     (d)  proceedings are instituted under:

                              (i)  regulations made for the purposes of section 109, 110, 111, 111A or 111B; or

                             (ii)  regulations made for the purposes of paragraph 125(1)(f) or (g); or

                            (iii)  standard Rules of Court made for the purposes of paragraph 123(1)(r); or

                            (iv)  Rules of Court made for the purposes of paragraph 87(1)(j) of the Federal Magistrates Act 1999; or

                    (da)  proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or

                     (e)  proceedings are instituted under section 117A.

Note:          Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

             (7)  The Governor‑General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.

     (7AAA)  Without limiting the generality of subsection (7), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:

                     (a)  proceedings of specified classes;

                     (b)  the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;

                     (c)  the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.

       (7AA)  A court of summary jurisdiction in a State or Territory shall not hear or determine proceedings under this Act instituted in or transferred to that court otherwise than in accordance with any Proclamation in force under subsection (7).

          (7A)  The Governor‑General may, by Proclamation, declare that a Proclamation made under subsection (7) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (7)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.

             (8)  Jurisdiction with respect to a matter arising under this Act in respect of which a matrimonial cause is instituted under this Act is not conferred on a court of a Territory unless at least one of the parties to the proceedings is, at the date of the institution of the proceedings or the date of the transfer of the proceedings to the court of the Territory, ordinarily resident in the Territory.

             (9)  The jurisdiction conferred on or invested in a court by this section includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with this Act.

40  Jurisdiction of Family Court

             (1)  The jurisdiction of the Family Court under this Act shall not be exercised except in accordance with Proclamations under this section.

             (2)  The Governor‑General may, by Proclamation, fix a date as the date on and after which the jurisdiction of the Family Court under this Act may be exercised in respect of all proceedings, or a class of proceedings, in such States and Territories as are specified in the Proclamation.

             (3)  The Governor‑General may, by Proclamation, fix a date as the date on and after which matrimonial causes, and other proceedings, referred to in subsection 39(5) may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the Proclamation, or may be so instituted or transferred only where specified conditions are complied with, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes and may be expressed to apply only to the institution of proceedings in, or the transfer of proceedings to, a particular Registry or Registries of a Supreme Court referred to in the Proclamation.

             (4)  The Supreme Court of a State or Territory shall not hear and determine proceedings under this Act instituted in or transferred to that Court otherwise than in accordance with any Proclamation in force under subsection (3), but nothing in this section invalidates a decree made by such a Supreme Court.

          (4A)  The Governor‑General may, by Proclamation, declare that a Proclamation made under subsection (3) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (3)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.

             (5)  Proclamations under subsections (2) and (3) may be made from time to time.

             (6)  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 subsection, have been instituted in the Family Court, may apply to the Family Court for an order transferring the proceedings to the Family Court, and the Court may order accordingly.

             (7)  The standard Rules of Court may make provision in relation to matters arising in or in connexion with the transfer of proceedings in accordance with an order under subsection (6).

             (8)  This section does not apply in relation to proceedings under Part VII or in relation to jurisdiction conferred on a federal court or a court of a Territory, or invested in a court of a State, by regulations made for the purposes of section 111C.

40A  Exercise of jurisdiction of Federal Magistrates Court in certain States and Territories

                   The jurisdiction of the Federal Magistrates Court under this Act must not be exercised in respect of a particular proceeding in a particular State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory.

41  Establishment of State Family Courts

             (1)  As soon as practicable after the commencement of this Act, the Commonwealth Government shall take steps with a view to the making of agreements with the governments of the States providing for the creation of State courts to be known as Family Courts, being agreements under which the Commonwealth Government will provide the necessary funds for the establishment and administration of those courts (including the provision of counselling facilities for those courts).

             (2)  Where, whether before or after the commencement of this Act, a State has created a court known as a Family Court, the Governor‑General may, by Proclamation, declare that, on and after a date specified in the Proclamation, this section applies to that court.

             (3)  Where, by virtue of a Proclamation under subsection (2), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation, and in relation to proceedings so instituted and proceedings transferred to that court in accordance with this Act, as if references in sections 39, 46, 94 and 96 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly.

          (3A)  Notwithstanding the issue of a Proclamation under subsection (2) and the provisions of subsection (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 subsection 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.

             (4)  The Governor‑General shall not make a Proclamation under this section in respect of a court unless the Governor‑General is satisfied that:

                     (a)  arrangements have been made under which Judges will not be appointed to that court except with the approval of the Attorney‑General of the Commonwealth;

                     (b)  Judges appointed to that court are by reason of training, experience and personality, suitable persons to deal with matters of family law and cannot hold office beyond the age of 70 years; and

                     (c)  appropriate family counselling and family dispute resolution services, and family consultants, will be available to that court.

          (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 subsection, 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.

             (5)  References in this Act or the standard Rules of Court to a court of summary jurisdiction shall not be read as including references to a court to which this section applies.

42  Law to be applied

             (1)  The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.

             (2)  Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a State or Territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place.

Note:          Subdivision D of Division 4 of Part XIIIAA (Applicable law) may affect the law to be applied by a court.

43  Principles to be applied by courts

                   The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

                     (a)  the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

                     (b)  the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

                     (c)  the need to protect the rights of children and to promote their welfare;

                    (ca)  the need to ensure safety from family violence; and

                     (d)  the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

44  Institution of proceedings

             (1)  Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.

          (1A)  Proceedings under this Act for:

                     (a)  a divorce order in relation to a marriage; or

                     (b)  a decree of nullity of marriage;

may be instituted by either party to the marriage or jointly by both parties to the marriage.

          (1B)  An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate:

                     (a)  stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:

                              (i)  a family counsellor; or

                             (ii)  if the court is the Family Court, the Federal Magistrates Court or the Family Court of a State—an individual or an organisation nominated for the parties by a family consultant; or

                            (iii)  if the court is not the Family Court, the Federal Magistrates Court or the Family Court of a State—an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and

                     (b)  signed by that person or on behalf of that organisation, as the case may be.

          (1C)  Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may:

                     (a)  if the application has not been filed—give leave for the application to be filed; or

                     (b)  if the application has been filed—at any time before or during the hearing of the application, declare that it is so satisfied;

and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.

             (2)  Notwithstanding subsections (3) and (3A), a respondent may, in an answer to an application, include an application for any decree or declaration under this Act.

             (3)  Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

                     (a)  a divorce order has taken effect; or

                     (b)  a decree of nullity of marriage has been made;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

                     (c)  in a case referred to in paragraph (a)—the date on which the divorce order took effect; or

                     (d)  in a case referred to in paragraph (b)—the date of the making of the decree.

The court may grant such leave at any time, even if the proceedings have already been instituted.

       (3AA)  However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.

          (3A)  Notwithstanding subsection (3), where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

                     (a)  a divorce order has taken effect or a decree of nullity of marriage has been made; and

                     (b)  the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

                     (c)  within the period of 12 months after:

                              (i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

                             (ii)  the date on which the approval of the maintenance agreement was revoked;

                            whichever is the later; or

                     (d)  with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

          (3B)  Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000:

                     (a)  a divorce order has taken effect or a decree of nullity of marriage has been made; and

                     (b)  a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

                     (c)  within the period of 12 months after the later of:

                              (i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

                             (ii)  the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or

                     (d)  with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

             (4)  The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

                     (a)  that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or

                     (b)  in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.

44A  Proceedings for divorce order

                   The regulations may provide that proceedings for a divorce order may not be instituted in, or transferred to, a court of summary jurisdiction other than a prescribed court.

45  Stay and transfer of proceedings

             (1)  Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that other proceedings that have been so instituted or are being so continued in relation to the same marriage or void marriage or the same matter are pending in another court, the first‑mentioned court may stay the first‑mentioned proceedings for such time as it considers appropriate or may dismiss the proceedings.

          (1A)  For the purposes of subsection (1), if the bankruptcy trustee of a bankrupt party to a marriage applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act, proceedings relating to that application are taken to be proceedings in relation to the marriage.

             (2)  Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court. However, this subsection does not apply to particular proceedings if:

                     (a)  the first‑mentioned court is the Family Court and the other court is the Federal Magistrates Court; or

                     (b)  the first‑mentioned court is the Federal Magistrates Court and the other court is the Family Court.

Note 1:       For transfers from the Family Court to the Federal Magistrates Court, see section 33B.

Note 2:       For transfers from the Federal Magistrates Court to the Family Court, see section 39 of the Federal Magistrates Act 1999.

             (3)  A transfer under subsection (2) may be made on the application of any party to the proceedings.

             (4)  A transfer under subsection (2) may be made on the transferring court’s own initiative if the transfer is:

                     (a)  from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or

                     (b)  from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State.

46  Transfer of proceedings from court of summary jurisdiction in certain cases

             (1)  Where proceedings are instituted in a court of summary jurisdiction in relation to property of a total value exceeding the ceiling amount and the respondent, in answer to the application by which the 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 that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to:

                              (i)  the Family Court; or

                             (ii)  the Supreme Court of a State or Territory; or

                            (iii)  the Federal Magistrates Court; and

                     (b)  unless the parties consent to the court hearing and determining the proceedings—the court must transfer the proceedings to:

                              (i)  the Family Court; or

                             (ii)  the Supreme Court of a State or Territory; or

                            (iii)  the Federal Magistrates Court.

       (1AA)  For the purposes of subsection (1), the ceiling amount is:

                     (a)  if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia—the amount specified in the regulations; or

                     (b)  otherwise—$20,000.

          (1A)  A reference in subsection (1) to proceedings with respect to property does not include a reference to proceedings with respect to arrears of maintenance.

        (1AB)  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.

          (1B)  Subject to subsection (1C), if:

                     (a)  proceedings referred to in subsection (1) are instituted in a court of summary jurisdiction; and

                     (b)  the parties consent to the proceedings being heard and determined by that court;

a party is not entitled subsequently to object to the proceedings being so heard and determined.

          (1C)  If the court subsequently gives leave to a party to object to the proceedings being so heard and determined, the court must transfer the proceedings to:

                     (a)  the Family Court; or

                     (b)  the Supreme Court of a State or Territory; or

                     (c)  the Federal Magistrates Court.

             (2)  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 willing for the court to hear and determine the proceedings.

          (2A)  If:

                     (a)  proceedings for a divorce order have been instituted in or transferred to a court of summary jurisdiction; and

                     (b)  the proceedings are defended;

the court is required to transfer the proceedings to:

                     (c)  the Family Court; or

                     (d)  the Supreme Court of a State or Territory; or

                     (e)  the Federal Magistrates Court.

          (2B)  Subsection (2A) does not apply if the court is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

             (3)  Before transferring proceedings under subsection (1) or (2A), the court may make such orders as it considers necessary pending the disposal of the proceedings by the court to which they are to be transferred.

          (3A)  If proceedings instituted under this Act, or continued under section 9, are pending in a court of summary jurisdiction, each of the following Courts:

                     (a)  the Family Court;

                     (b)  the Supreme Court of a State or Territory;

                     (c)  the Federal Magistrates Court;

may, on the application of a party or of its own motion, order that the proceedings be removed to that Court.

             (4)  Where proceedings are transferred or removed to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally instituted in that court.

             (5)  Without prejudice to the duty of a court of summary jurisdiction to comply with this section, failure by such a court so to comply does not invalidate any order of the court in the proceedings.

47  Courts to act in aid of each other

                   All courts having jurisdiction under this Act shall severally act in aid of and be auxiliary to each other in all matters under this Act.


 

Part VIDivorce and nullity of marriage

  

48  Divorce

             (1)  An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

             (2)  Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

             (3)  A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

49  Meaning of separation

             (1)  The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

             (2)  The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

50  Effect of resumption of cohabitation

             (1)  For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.

             (2)  For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

51  Nullity of marriage

                   An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

52  Court not to make divorce order where application for decree of nullity before it

                   Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage.

53  Circumstances occurring before commencement of Act or outside Australia

                   A decree may be made, or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.

55  When divorce order takes effect

             (1)  Subject to this section, a divorce order made under this Act takes effect by force of this section:

                     (a)  at the expiration of a period of 1 month from the making of the order; or

                     (b)  from the making of an order under section 55A;

whichever is the later.

             (2)  If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:

                     (a)  make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or

                     (b)  make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.

             (3)  If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:

                     (a)  at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or

                     (b)  on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted;

whichever is the later.

             (4)  A divorce order does not take effect by force of this section if either of the parties to the marriage has died.

             (5)  In this section:

appeal, in relation to a divorce order, means:

                     (a)  an appeal or application for leave to appeal against, or an intervention or application for a re‑hearing relating to:

                              (i)  the divorce order; or

                             (ii)  an order under section 55A in relation to the proceedings in which the divorce order was made; or

                     (b)  an application under section 57 or 58 for rescission of the divorce order or an appeal or application for leave to appeal arising out of such an application.

             (6)  For the purposes of this section, where an application for leave to appeal, or for a re‑hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as:

                     (a)  the leave granted remains capable of being exercised; or

                     (b)  an appeal or re‑hearing instituted in pursuance of the leave is pending.

55A  Divorce order where children

             (1)  A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:

                     (a)  that there are no children of the marriage who have not attained 18 years of age; or

                     (b)  that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:

                              (i)  proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or

                             (ii)  there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

             (2)  Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.

             (3)  For the purposes of this section, a child (including an ex‑nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.

             (4)  For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made.

56  Certificate as to divorce order

             (1)  If a divorce order takes effect, the Registry Manager of the court by which the order was made must prepare and file a memorandum of the fact and of the date on which the divorce order took effect.

             (2)  If a divorce order has taken effect, any person is entitled, on application to the Registry Manager of the court by which the divorce order was made, to receive a certificate signed by the Registrar of that court that the divorce order has taken effect.

             (3)  A certificate given under subsection (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, evidence of the matters specified in the certificate.

             (4)  The regulations may provide for the establishment of central records of decrees made under this Act and for the notification of decrees to the appropriate marriage registering authorities of the States and Territories.

57  Rescission of divorce order where parties reconciled

                   Despite anything contained in this Part, if a divorce order has been made in relation to a marriage, the court may, at any time before the order takes effect, upon the application of the parties to the marriage, rescind the divorce order on the ground that the parties have become reconciled.

58  Rescission of divorce order on ground of miscarriage of justice

                   If a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney‑General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re‑heard.

59  Re‑marriage

                   If a divorce order under this Act in relation to a marriage has taken effect, a party to the marriage may marry again.


 

Part VIIChildren

Division 1Introductory

Subdivision AWhat this Division does

60A  What this Division does

                   This Division contains:

                     (a)  a statement of the object of this Part and the principles underlying it, and an outline of this Part (Subdivision B); and

                     (b)  provisions relevant to the interpretation and application of this Part (Subdivision C); and

                     (c)  provisions relevant to how this Act applies to certain children (Subdivision D).

Note:          The extension and application of this Part is also dealt with in Subdivision F of Division 12.

Subdivision BObject, principles and outline

60B  Objects of Part and principles underlying it

             (1)  The objects of this Part are to ensure that the best interests of children are met by:

                     (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

                     (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

                     (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

                     (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

             (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

                     (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

                     (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

                     (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

                     (d)  parents should agree about the future parenting of their children; and

                     (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

             (3)  For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

                     (a)  to maintain a connection with that culture; and

                     (b)  to have the support, opportunity and encouragement necessary:

                              (i)  to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

                             (ii)  to develop a positive appreciation of that culture.

60C  Outline of Part

                   An outline of this Part is set out below.

OUTLINE OF PART

Item

Divisions and coverage

1

Division 1—Introductory

·           object of Part and principles underlying it, and outline of Part

·           interpretation and application of this Part

·           how this Act applies to certain children

Note:       The extension and application of this Part is also dealt with in Subdivision F of Division 12.

2

Division 2—Parental responsibility

·           the concept of parental responsibility

3

Division 3—Reports relating to children under 18

preparation of reports for use in proceedings relating to children under 18

4

Division 4—Parenting plans

·           what parenting plans are

5

Division 5—Parenting orders—what they are

·           what parenting orders are

6

Division 6—Parenting orders other than child maintenance orders

·           applying for and making parenting orders (other than child maintenance orders) after attending, if necessary, family dispute resolution (see section 60I)

·           general obligations created by parenting orders, other than child maintenance orders

·           measures to promote the exercise of parental responsibility

·           dealing with people who have been arrested

·           obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia

7

Division 7—Child maintenance orders

·           objects and principles relevant to the making of child maintenance orders

·           the relationship between Division 7 and the Child Support (Assessment) Act 1989

·           applying for and making child maintenance orders

·           other aspects of courts’ powers in relation to child maintenance orders

·           when child maintenance orders stop being in force

8

Division 8—Other matters relating to children

·           liability of a father to contribute towards child bearing expenses if he is not married to the child’s mother

·           orders for the location and recovery of children

·           reporting of allegations of child abuse

·           other orders about children

9

Division 9—Injunctions

·           proceedings for injunctions in relation to children

10

Division 10—The representation of the child’s interests

the representation of a child’s interests in proceedings by an independent children’s lawyer

11

Division 11—Family violence

·           the relationship between certain parenting orders and family violence orders

12

Division 12—Proceedings and jurisdiction

·           institution of proceedings and procedure

·           jurisdiction of courts

·           presumptions of parentage

·           parentage evidence

·           places and people to which this Part extends and applies

12A

Division 12A—Principles for conducting child‑related proceedings

principles for conducting proceedings under this Part and certain other incidental proceedings

duties and powers of the court related to giving effect to the principles

13

Division 13—State, Territory and overseas orders

·           registration of State and Territory orders dealing with children

·           registration of overseas orders dealing with children

·           transmission of Australian orders to overseas jurisdictions

13A

Division 13A—Enforcement of orders affecting children

·           court may do any or all of the following:

(a)   require a person who contravenes an order affecting children to participate in an appropriate post‑separation parenting program designed to help in the resolution of conflicts about parenting;

(b)   make a further parenting order that compensates a person for time that a child did not spend with the person, or for time that a child did not live with the person, as a result of the contravention;

(c)   adjourn the proceedings to enable an application to be made for a further parenting order;

·           court must take other action in respect of a person who contravenes an order affecting children if the court is satisfied:

(a)   where the contravention is an initial contravention—that the person has behaved in a way that showed a serious disregard for his or her parenting obligations; or

(b)   where the contravention is a second or subsequent contravention—that it is not appropriate for the person to be dealt with by requiring his or her attendance at a post‑separation parenting program;

14

Division 14—Miscellaneous

·           miscellaneous matters relating to children

Subdivision BABest interests of the child

60CA  Child’s best interests paramount consideration in making a parenting order

                   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

60CB  Proceedings to which Subdivision applies

             (1)  This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

Note:          Division 10 also allows a court to make an order for a child’s interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.

             (2)  This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies.

60CC  How a court determines what is in a child’s best interests

Determining child’s best interests

             (1)  Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

             (2)  The primary considerations are:

                     (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

                     (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

             (3)  Additional considerations are:

                     (a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

                     (b)  the nature of the relationship of the child with:

                              (i)  each of the child’s parents; and

                             (ii)  other persons (including any grandparent or other relative of the child);

                     (c)  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

                     (d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

                              (i)  either of his or her parents; or

                             (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

                     (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

                      (f)  the capacity of:

                              (i)  each of the child’s parents; and

                             (ii)  any other person (including any grandparent or other relative of the child);

                            to provide for the needs of the child, including emotional and intellectual needs;

                     (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

                     (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

                              (i)  the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

                             (ii)  the likely impact any proposed parenting order under this Part will have on that right;

                      (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

                      (j)  any family violence involving the child or a member of the child’s family;

                     (k)  any family violence order that applies to the child or a member of the child’s family, if:

                              (i)  the order is a final order; or

                             (ii)  the making of the order was contested by a person;

                      (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

                    (m)  any other fact or circumstance that the court thinks is relevant.

             (4)  Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

                     (a)  has taken, or failed to take, the opportunity:

                              (i)  to participate in making decisions about major long‑term issues in relation to the child; and

                             (ii)  to spend time with the child; and

                            (iii)  to communicate with the child; and

                     (b)  has facilitated, or failed to facilitate, the other parent:

                              (i)  participating in making decisions about major long‑term issues in relation to the child; and

                             (ii)  spending time with the child; and

                            (iii)  communicating with the child; and

                     (c)  has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

          (4A)  If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Consent orders

             (5)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

             (6)  For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

                     (a)  to maintain a connection with that culture; and

                     (b)  to have the support, opportunity and encouragement necessary:

                              (i)  to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

                             (ii)  to develop a positive appreciation of that culture.

60CD  How the views of a child are expressed

             (1)  Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.

             (2)  The court may inform itself of views expressed by a child:

                     (a)  by having regard to anything contained in a report given to the court under subsection 62G(2); or

                     (b)  by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or

                     (c)  subject to the applicable Rules of Court, by such other means as the court thinks appropriate.

Note 1:       Paragraph (a)—subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report.

Note 2:       Paragraph (b)—paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.

60CE  Children not required to express views

                   Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.

60CF  Informing court of relevant family violence orders

             (1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

             (2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.

             (3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

60CG  Court to consider risk of family violence

             (1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

                     (a)  is consistent with any family violence order; and

                     (b)  does not expose a person to an unacceptable risk of family violence.

             (2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Subdivision CInterpretation and application of Part

60E  Application of Part to void marriages

                   This Part applies in relation to a purported marriage that is void as if:

                     (a)  the purported marriage were a marriage; and

                     (b)  the parties to the purported marriage were husband and wife.

Subdivision DInterpretation—how this Act applies to certain children

60F  Certain children are children of marriage etc.

             (1)  A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children:

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

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

                     (c)  a child who is, under subsection 60H(1), the child of the husband and wife.

             (2)  A reference in this Act to a child of a marriage includes a reference to a child of:

                     (a)  a marriage that has been terminated by divorce or annulled (in Australia or elsewhere); or

                     (b)  a marriage that has been terminated by the death of one party to the marriage.

             (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 60G 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.

             (5)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Magistrates Rules.

60G  Family Court may grant leave for adoption proceedings by prescribed adopting parent

             (1)  Subject to subsection (2), 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.

             (2)  In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a) and of sections 61E and 65J.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

60H  Children born as a result of artificial conception procedures

             (1)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and

                     (b)  either of the following paragraphs apply:

                              (i)  the procedure was carried out with their consent;

                             (ii)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;

then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.

             (2)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

                     (b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

             (3)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

                     (b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

             (4)  If a person lives with another person as the husband or wife of the first‑mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:

                     (a)  they were married to each other; and

                     (b)  neither person were married to any other person.

             (5)  For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

             (6)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Magistrates Rules.

Subdivision EFamily dispute resolution

60I  Attending family dispute resolution before applying for Part VII order

Object of this section

             (1)  The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

Phase 1 (from commencement to 30 June 2007)

             (2)  The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order.

             (3)  By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.

             (4)  Subsection (3) applies to an application for a parenting order if the application is made:

                     (a)  on or after the commencement of this section; and

                     (b)  before 1 July 2007.

Phase 2 (from 1 July 2007 to first proclaimed date)

             (5)  Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if:

                     (a)  the application is made on or after 1 July 2007 and before the date fixed by Proclamation for the purposes of this paragraph; and

                     (b)  none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in relation to the child.

Phase 3 (from second proclaimed date)

             (6)  Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after the date fixed by Proclamation for the purposes of this subsection.

Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order

             (7)  Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

Certificate by family dispute resolution practitioner

             (8)  A family dispute resolution practitioner may give one of these kinds of certificates to a person:

                     (a)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;

                    (aa)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

                     (b)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;

                     (c)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues.

Note:          When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).

Exception

             (9)  Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

                     (a)  the applicant is applying for the order:

                              (i)  to be made with the consent of all the parties to the proceedings; or

                             (ii)  in response to an application that another party to the proceedings has made for a Part VII order; or

                     (b)  the court is satisfied that there are reasonable grounds to believe that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

                            (iii)  there has been family violence by one of the parties to the proceedings; or

                            (iv)  there is a risk of family violence by one of the parties to the proceedings; or

                     (c)  all the following conditions are satisfied:

                              (i)  the application is made in relation to a particular issue;

                             (ii)  a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;

                            (iii)  the application is made in relation to a contravention of the order by a person;

                            (iv)  the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or

                     (d)  the application is made in circumstances of urgency; or

                     (e)  one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or

                      (f)  other circumstances specified in the regulations are satisfied.

Referral to family dispute resolution when exception applies

           (10)  If:

                     (a)  a person applies for a Part VII order; and

                     (b)  the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and

                     (c)  subsection (7) does not apply to the application because of subsection (9);

the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.

           (11)  The validity of:

                     (a)  proceedings on an application for a Part VII order; or

                     (b)  any order made in those proceedings;

is not affected by a failure to comply with subsection (7) in relation to those proceedings.

           (12)  In this section:

dispute resolution provisions of the Family Law Rules 2004 means:

                     (a)  Rule 1.05 of those Rules; and

                     (b)  Part 2 of Schedule 1 to those Rules;

to the extent to which they deal with dispute resolution.

60J  Family dispute resolution not attended because of child abuse or family violence

             (1)  If:

                     (a)  subsections 60I(7) to (12) apply to an application for a Part VII order (see subsections 60I(5) and (6)); and

                     (b)  subsection 60I(7) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there has been family violence by one of the parties to the proceedings;

a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.

             (2)  Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that:

                     (a)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

                     (b)  there is a risk of family violence by one of the parties to the proceedings.

             (3)  The validity of:

                     (a)  proceedings on an application for a Part VII order; or

                     (b)  any order made in those proceedings;

is not affected by a failure to comply with subsection (1) in relation to those proceedings.

             (4)  If:

                     (a)  the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and

                     (b)  subsection (2) does not apply;

the principal executive officer of the court concerned must ensure that the applicant is referred to a family counsellor or family dispute resolution practitioner in order to obtain information about those matters.

60K  Court to take prompt action in relation to allegations of child abuse or family violence

             (1)  This section applies if:

                     (a)  an application is made to a court for a Part VII order in relation to a child; and

                     (b)  a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and

                     (c)  the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

                            (iii)  there has been family violence by one of the parties to the proceedings; or

                            (iv)  there is a risk of family violence by one of the parties to the proceedings; and

                     (d)  the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.

             (2)  The court must:

                     (a)  consider what interim or procedural orders (if any) should be made:

                              (i)  to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

                             (ii)  to protect the child or any of the parties to the proceedings; and

                     (b)  make such orders of that kind as the court considers appropriate; and

                     (c)  deal with the issues raised by the allegation as expeditiously as possible.

          (2A)  The court must take the action required by paragraphs (2)(a) and (b):

                     (a)  as soon as practicable after the document is filed; and

                     (b)  if it is appropriate having regard to the circumstances of the case—within 8 weeks after the document is filed.

             (3)  Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.

             (4)  Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.

             (5)  A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.


 

Division 2Parental responsibility

61A  What this Division does

                   This Division deals with the concept of parental responsibility including, in particular:

                     (a)  what parental responsibility is; and

                     (b)  who has parental responsibility.

61B  Meaning of parental responsibility

                   In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

61C  Each parent has parental responsibility (subject to court orders)

             (1)  Each of the parents of a child who is not 18 has parental responsibility for the child.

Note 1:       This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

Note 2:       This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

Note 3:       Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

             (2)  Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.

             (3)  Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

Note:          Section 111CS may affect the attribution of parental responsibility for a child.

61D  Parenting orders and parental responsibility

             (1)  A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

             (2)  A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

                     (a)  expressly provided for in the order; or

                     (b)  necessary to give effect to the order.

61DA  Presumption of equal shared parental responsibility when making parenting orders

             (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

             (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

                     (a)  abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

                     (b)  family violence.

             (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

             (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

61DB  Application of presumption of equal shared parental responsibility after interim parenting order made

                   If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

61E  Effect of adoption on parental responsibility

             (1)  This section applies if:

                     (a)  a child is adopted; and

                     (b)  immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.

             (2)  The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

61F  Application to Aboriginal or Torres Strait Islander children

                   In:

                     (a)  applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or

                     (b)  identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.


 

Division 3Reports relating to children under 18

62A  What this Division does

                   This Division deals with the preparation of reports for use in proceedings relating to children who are under 18.

62B  Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services

                   If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order.

Note:          Before informing the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

62G  Reports by family consultants

             (1)  This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.

             (2)  The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

             (3)  If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.

          (3A)  A family consultant who is directed to give the court a report on a matter under subsection (2) must:

                     (a)  ascertain the views of the child in relation to that matter; and

                     (b)  include the views of the child on that matter in the report.

Note:          A person cannot require a child to express his or her views in relation to any matter (see section 60CE).

          (3B)  Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:

                     (a)  the child’s age or maturity; or

                     (b)  some other special circumstance.

             (4)  The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.

             (5)  For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that a party to proceedings, or the child, attend an appointment or a series of appointments with a family consultant).

Note:          Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

             (6)  If a person fails to comply with an order or direction under subsection (5), the family consultant must report the failure to the court.

             (7)  On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.

             (8)  A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.


 

Division 4Parenting plans

63A  What this Division does

                   This Division explains what parenting plans are.

63B  Parents encouraged to reach agreement

                   The parents of a child are encouraged:

                     (a)  to agree about matters concerning the child; and

                     (b)  to take responsibility for their parenting arrangements and for resolving parental conflict; and

                     (c)  to use the legal system as a last resort rather than a first resort; and

                     (d)  to minimise the possibility of present and future conflict by using or reaching an agreement; and

                     (e)  in reaching their agreement, to regard the best interests of the child as the paramount consideration.

Note:          Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.

63C  Meaning of parenting plan and related terms

             (1)  A parenting plan is an agreement that:

                     (a)  is in writing; and

                     (b)  is or was made between the parents of a child; and

                    (ba)  is signed by the parents of the child; and

                    (bb)  is dated; and

                     (c)  deals with a matter or matters mentioned in subsection (2).

          (1A)  An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.

             (2)  A parenting plan may deal with one or more of the following:

                     (a)  the person or persons with whom a child is to live;

                     (b)  the time a child is to spend with another person or other persons;

                     (c)  the allocation of parental responsibility for a child;

                     (d)  if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

                     (e)  the communication a child is to have with another person or other persons;

                      (f)  maintenance of a child;

                     (g)  the process to be used for resolving disputes about the terms or operation of the plan;

                     (h)  the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;

                      (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Note:          Paragraph (f)—if the Child Support (Assessment) Act 1989 applies, provisions in a parenting plan dealing with the maintenance of a child (as distinct from child support under that Act) are unenforceable and of no effect unless the provisions in the plan are a child support agreement (see section 63CAA and subsection 63G(5) of this Act).

          (2A)  The person referred to in subsection (2) may be, or the persons referred to in that subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

          (2B)  Without limiting paragraph (2)(c), the plan may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

          (2C)  The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

                     (a)  letter; and

                     (b)  telephone, email or any other electronic means.

             (3)  An agreement may be a parenting plan:

                     (a)  whether made before or after the commencement of this section; and

                     (b)  whether made inside or outside Australia; and

                     (c)  whether other persons as well as a child’s parents are also parties; and

                     (d)  whether it deals with other matters as well as matters mentioned in subsection (2).

Note:          One of the other matters with which a parenting plan may deal is child support (see section 63CAA).

             (4)  Provisions of a parenting plan that deal with matters other than the maintenance of a child are child welfare provisions.

             (5)  Provisions of a parenting plan that deal with the matter mentioned in paragraph (2)(f) are child maintenance provisions.

             (6)  A registered parenting plan is a parenting plan:

                     (a)  that was registered in a court under section 63E as in force at any time before the commencement of the Family Law Amendment Act 2003; and

                     (b)  that continued to be registered immediately before the commencement of the Family Law Amendment Act 2003.

63CAA  Parenting plans may include child support provisions

             (1)  If a parenting plan includes provisions of a kind referred to in subsection 84(1) of the Child Support (Assessment) Act 1989, the provisions do not have effect for the purposes of this Act.

             (2)  Subsection (1) does not affect the operation of the provisions for any other purpose.

             (3)  Nothing in this Division is to be taken to prevent the same agreement being both a parenting plan under this Part and a child support agreement under Part 6 of the Child Support (Assessment) Act 1989.

63D  Parenting plan may be varied or revoked by further written agreement

                   A parenting plan, other than a plan to which section 63DB applies, may be varied or revoked by agreement in writing between the parties to the plan.

63DA  Obligations of advisers

             (1)  If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must:

                     (a)  inform them that they could consider entering into a parenting plan in relation to the child; and

                     (b)  inform them about where they can get further assistance to develop a parenting plan and the content of the plan.

             (2)  If an adviser gives advice to people in connection with the making by those people of a parenting plan in relation to a child, the adviser must:

                     (a)  inform them that, if the child spending equal time with each of them is:

                              (i)  reasonably practicable; and

                             (ii)  in the best interests of the child;

                            they could consider the option of an arrangement of that kind; and

                     (b)  inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is:

                              (i)  reasonably practicable; and

                             (ii)  in the best interests of the child;

                            they could consider the option of an arrangement of that kind; and

                     (c)  inform them that decisions made in developing parenting plans should be made in the best interests of the child; and

                     (d)  inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2); and

                     (e)  inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 64D) include a provision that the order is subject to a parenting plan they enter into; and

                      (f)  inform them about the desirability of including in the plan:

                              (i)  if they are to share parental responsibility for the child under the plan—provisions of the kind referred to in paragraph 63C(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and

                             (ii)  provisions of the kind referred to in paragraph 63C(2)(g) (which deals with the process for resolving disputes between the parties to the plan); and

                            (iii)  provisions of the kind referred to in paragraph 63C(2)(h) (which deals with the process for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan); and

                     (g)  explain to them, in language they are likely to readily understand, the availability of programs to help people who experience difficulties in complying with a parenting plan; and

                     (h)  inform them that section 65DAB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so.

Note:          Paragraphs (a) and (b) only require the adviser to inform the people that they could consider the option of the child spending equal time, or substantial and significant time, with each of them. The adviser may, but is not obliged to, advise them as to whether that option would be appropriate in their particular circumstances.

             (3)  For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if:

                     (a)  the time the child spends with the parent includes both:

                              (i)  days that fall on weekends and holidays; and

                             (ii)  days that do not fall on weekends or holidays; and

                     (b)  the time the child spends with the parent allows the parent to be involved in:

                              (i)  the child’s daily routine; and

                             (ii)  occasions and events that are of particular significance to the child; and

                     (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

             (4)  Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant.

             (5)  In this section:

adviser means a person who is:

                     (a)  a legal practitioner; or

                     (b)  a family counsellor; or

                     (c)  a family dispute resolution practitioner; or

                     (d)  a family consultant.

63DB  Registered parenting plans

Application of section

             (1)  This section applies to a registered parenting plan.

Saving of registered parenting plan

             (2)  A registered parenting plan continues in force until revoked in accordance with section 63E, or set aside, varied or discharged as referred to in section 63H.

No variation of registered parenting plan

             (3)  A registered parenting plan cannot be varied.

Revocation of registered parenting plan

             (4)  Subject to subsection (5), a registered parenting plan may be revoked by agreement in writing between the parties to the plan.

Registration of revocation required

             (5)  An agreement revoking a registered parenting plan:

                     (a)  may, subject to the applicable Rules of Court, be registered, in a court having jurisdiction under this Part, under section 63E; and

                     (b)  does not have effect to revoke the plan until it is so registered.

63E  Registration of a revocation of a registered parenting plan

             (1)  This section applies to a registered parenting plan.

             (2)  To apply for registration of an agreement (revocation agreement) revoking a registered parenting plan:

                     (a)  an application for registration of the revocation agreement must be lodged in accordance with the applicable Rules of Court; and

                     (b)  the application must be accompanied by:

                              (i)  a copy of the revocation agreement; and

                             (ii)  the information required by the applicable Rules of Court; and

                            (iii)  a statement, in relation to each party, that is to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement and that is signed by the practitioner who provided that advice.

             (3)  The court may register the revocation agreement if it considers it appropriate to do so having regard to the best interests of the child to whom the agreement relates. In determining whether it is appropriate to register the revocation agreement, the court:

                     (a)  must have regard to the information accompanying the application for registration; and

                     (b)  may, but is not required to, have regard to all or any of the matters set out in subsections 60CC(2) and (3).

63F  Child welfare provisions of registered parenting plans

Application of section

             (1)  This section applies to a registered parenting plan that contains child welfare provisions.

             (2)  The court may, by order, vary the child welfare provisions in the plan if it considers the variation is required in the best interests of a child.

             (3)  The child welfare provisions have effect, subject to subsections (5) and (6), as if they were provisions of a parenting order.

Note:          Provisions of this Act relevant to the child welfare provisions having effect as provided in this subsection include:

(a)           Subdivisions C, D and E of Division 6 of this Part (dealing with obligations created by parenting orders (other than child maintenance orders)); and

(b)           Division 13A of this Part and Part XIII (dealing generally with enforcement of orders and sanctions for contravening orders); and

(c)           subsection 65D(2) (providing for discharge, variation, suspension and revival of parenting orders other than child maintenance orders); and

(d)           other provisions of this Act (including subsection 64B(6)) that refer to parenting orders.

             (4)  If provisions of the plan have effect under subsection (3) as a court order, a person who is a party to the plan is taken (for example, for the purposes of section 65Y) to be a party to the proceedings in which the order was made.

             (5)  Subsection (3) does not apply to the plan (whenever registered) to the extent (if at all) that the plan purports to determine that the child concerned is to live with a person who is not a parent of the child.

             (6)  Even though the plan is registered, the court, or another court having jurisdiction under this Part, must not enforce the child welfare provisions if it considers that to do so would be contrary to the best interests of a child.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

63G  Child maintenance provisions of registered parenting plans—where not enforceable as maintenance agreements

             (1)  This section applies if:

                     (a)  a registered parenting plan contains child maintenance provisions; and

                     (b)  the plan is not a maintenance agreement or, if it is a maintenance agreement, the child concerned is not a child of the relevant marriage.

             (2)  The child maintenance provisions have effect, subject to subsections (3), (4) and (5), as if they were a child maintenance order made by the court.

Note:          Provisions of this Act relevant to the child maintenance provisions having effect as a child maintenance order include:

(a)           Parts XIII and XIIIA (dealing generally with enforcement of orders and sanctions for contravening orders); and

(b)           section 66S (providing for discharge, variation, suspension and revival of child maintenance orders); and

(c)           other provisions of this Act that refer to parenting orders, or to child maintenance orders.

             (3)  Unless the plan provides otherwise, the child maintenance provisions (other than provisions for the periodic payment of maintenance) continue to operate in spite of the death of a party to the plan and operate in favour of, and are binding on, the legal personal representative of that party.

             (4)  If the child maintenance provisions include provisions (the periodic provisions) for the periodic payment of maintenance:

                     (a)  the periodic provisions continue to operate, if the plan so provides, in spite of the death of a party to the plan who is liable to make the periodic payments, and are binding on the legal personal representative of that party; but

                     (b)  the periodic provisions do not continue to operate, in spite of anything in the plan, after the death of the person entitled to receive the periodic payments.

             (5)  The child maintenance provisions have no effect, and are 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 plan for administrative assessment of child support (within the meaning of that Act) for the child concerned seeking payment of child support by the other party to the plan.

Note:          This subsection does not affect the operation of provisions of a parenting plan referred to in section 63CAA (child support matters).

             (6)  Subsection (5) has effect whether or not an application for administrative assessment of child support for the child has in fact been made by a party to the plan.

63H  Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans

          (1A)  This section applies to a registered parenting plan.

             (1)  The court in which the plan was registered may set aside the plan, and its registration, if the court is satisfied:

                     (a)  that the concurrence of a party was obtained by fraud, duress or undue influence; or

                     (b)  that the parties want the plan set aside; or

                     (c)  that it is in the best interests of a child to set aside the plan.

             (2)  In proceedings under subsection (1), to the extent that they are proceedings on the ground mentioned in paragraph (1)(c), the best interests of the child concerned are the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

             (3)  Other provisions of this Act under which provisions of the parenting plan may be set aside or otherwise affected are:

                     (a)  subsection 63F(2)—under that subsection a court may vary child welfare provisions in the plan; and

                     (b)  subsection 65D(2)—under that subsection a court may make a parenting order that discharges, varies, suspends or revives provisions of the plan that have effect as if they were a parenting order (other than a child maintenance order); and

                     (c)  section 66S—under that section a court may discharge, vary, suspend or revive provisions of the plan that have effect as if they were a child maintenance order.

             (4)  Except as permitted by subsection (1) or by a provision mentioned in subsection (3), a court must not set aside, discharge, vary, suspend or revive the whole or a part of the parenting plan.


 

Division 5Parenting orders—what they are

64A  What this Division does

                   This Division explains what parenting orders are.

64B  Meaning of parenting order and related terms

             (1)  A parenting order is:

                     (a)  an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

                     (b)  an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

             (2)  A parenting order may deal with one or more of the following:

                     (a)  the person or persons with whom a child is to live;

                     (b)  the time a child is to spend with another person or other persons;

                     (c)  the allocation of parental responsibility for a child;

                     (d)  if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

                     (e)  the communication a child is to have with another person or other persons;

                      (f)  maintenance of a child;

                     (g)  the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

                              (i)  a child to whom the order relates; or

                             (ii)  the parties to the proceedings in which the order is made;

                     (h)  the process to be used for resolving disputes about the terms or operation of the order;

                      (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note:          Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

             (3)  Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

             (4)  The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

                     (a)  letter; and

                     (b)  telephone, email or any other electronic means.

          (4A)  Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:

                     (a)  resolving any dispute about the terms or operation of the order; or

                     (b)  reaching agreement about changes to be made to the order.

             (5)  To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order.

             (6)  For the purposes of this Act:

                     (a)  a parenting order that provides that a child is to live with a person is made in favour of that person; and

                     (b)  a parenting order that provides that a child is to spend time with a person is made in favour of that person; and

                     (c)  a parenting order that provides that a child is to have communication with a person is made in favour of that person; and

                     (d)  a parenting order that:

                              (i)  allocates parental responsibility for a child to a person; or

                             (ii)  provides that a person is to share parental responsibility for a child with another person;

                            is made in favour of that person.

             (9)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Magistrates Rules.

64C  Parenting orders may be made in favour of parents or other persons

                   A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

64D  Parenting orders subject to later parenting plans

             (1)  Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:

                     (a)  entered into subsequently by the child’s parents; and

                     (b)  agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.

             (2)  The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).

             (3)  Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:

                     (a)  circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

                     (b)  the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.


 

Division 6Parenting orders other than child maintenance orders

Subdivision AIntroductory

65A  What this Division does

             (1)  This Division deals with:

                     (a)  applying for and making parenting orders, other than child maintenance orders (Subdivision B); and

                     (b)  the general obligations created by parenting orders, other than child maintenance orders (Subdivision C); and

                     (c)  dealing with people who have been arrested (Subdivision D); and

                     (d)  the obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia (Subdivision E).

Note:          Paragraph (a)—section 60I provides that people with disputes about matters that may be dealt with in a Part VII order (which includes a parenting order) should generally make use of family dispute resolution before applying for the order.

             (2)  Measures designed to improve communication between separated parents and to educate parents about their respective responsibilities in relation to their children are contained in this Division (see section 65DA).

Note:          Division 13A provides for the compliance regime for dealing with contraventions, and alleged contraventions, of parenting orders.

65AA  Child’s best interests paramount consideration in making a parenting order

                   Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

65B  Division does not apply to child maintenance orders

                   This Division does not apply to parenting orders to the extent that they consist of child maintenance orders. Child maintenance orders are dealt with in Division 7.

Subdivision BApplying for and making parenting orders

65C  Who may apply for a parenting order

                   A parenting order in relation to a child may be applied for by:

                     (a)  either or both of the child’s parents; or

                     (b)  the child; or

                    (ba)  a grandparent of the child; or

                     (c)  any other person concerned with the care, welfare or development of the child.

65D  Court’s power to make parenting order

             (1)  In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

             (2)  Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

             (3)  If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII:

                     (a)  the court must hear and determine the 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.

Note:          The applicant may apply to the Family Court or to the Federal Magistrates Court for the application for the parenting order or for the proceedings under Subdivision E of Division 13A of Part VII, or both, to be transferred to the Federal Magistrates Court or to the Family Court, as the case requires (see section 33B of this Act and section 39 of the Federal Magistrates Act 1999).

65DAA  Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

             (1)  If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

                     (a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

                     (b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

                     (c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

             (2)  If:

                     (a)  a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

                     (b)  the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

                     (c)  consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

                     (d)  consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

                     (e)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

             (3)  For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

                     (a)  the time the child spends with the parent includes both:

                              (i)  days that fall on weekends and holidays; and

                             (ii)  days that do not fall on weekends or holidays; and

                     (b)  the time the child spends with the parent allows the parent to be involved in:

                              (i)  the child’s daily routine; and

                             (ii)  occasions and events that are of particular significance to the child; and

                     (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

             (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

             (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

                     (a)  how far apart the parents live from each other; and

                     (b)  the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

                     (c)  the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

                     (d)  the impact that an arrangement of that kind would have on the child; and

                     (e)  such other matters as the court considers relevant.

Note 1:       Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a)           the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));

(b)           the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2:       Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

65DAB  Court to have regard to parenting plans

                   When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.

65DAC  Effect of parenting order that provides for shared parental responsibility

             (1)  This section applies if, under a parenting order:

                     (a)  2 or more persons are to share parental responsibility for a child; and

                     (b)  the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

             (2)  The order is taken to require the decision to be made jointly by those persons.

Note:          Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

             (3)  The order is taken to require each of those persons:

                     (a)  to consult the other person in relation to the decision to be made about that issue; and

                     (b)  to make a genuine effort to come to a joint decision about that issue.

             (4)  To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

65DAE  No need to consult on issues that are not major long‑term issues

             (1)  If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

                     (a)  has parental responsibility for the child; or

                     (b)  shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.

Note:          This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

             (2)  Subsection (1) applies subject to any provision to the contrary made by a parenting order.

65DA  Parenting orders

             (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:

                     (a)  the obligations that the order creates; and

                     (b)  the consequences that may follow if a person contravenes the order.

             (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:

                     (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 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 paragraphs (3)(a) and (b).

             (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 paragraphs (2)(a) and (b); and

                     (b)  to explain to the person the matters mentioned in paragraphs (3)(a) and (b).

             (6)  If a request is made by the court to a legal practitioner under paragraph (5)(a) or (b), it is the duty of the practitioner to comply with the request.

             (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 required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given.

65F  General requirements for counselling before parenting order made

             (2)  Subject to subsection (3), a court must not make a parenting order in relation to a child unless:

                     (a)  the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or

                     (b)  the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

                     (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).

             (3)  Subsection (2) does not apply to the making of a parenting order if:

                     (a)  it is made with the consent of all the parties to the proceedings; or

                     (b)  it is an order until further order.

             (4)  In this section:

proceedings for a parenting order includes:

                     (a)  proceedings for the enforcement of a parenting order; and

                     (b)  any other proceedings in which a contravention of a parenting order is alleged.

65G  Special conditions for making parenting order about whom a child lives with or the allocation of parental responsibility by consent in favour of non‑parent

             (1)  This section applies if:

                     (a)  a court proposes to make a parenting order that deals with whom a child is to live with; and

                     (b)  under the order, the child would not live with a parent, grandparent or other relative of the child; and

                     (c)  the court proposes to make that order with the consent of all the parties to the proceedings.

          (1A)  This section also applies if:

                     (a)  a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and

                     (b)  under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and

                     (c)  the court proposes to make that order with the consent of all the parties to the proceedings.

             (2)  The court must not make the proposed order unless:

                     (a)  the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or

                     (b)  the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.

65H  Children who are 18 or over or who have married or entered de facto relationships

             (1)  A parenting order must not be made in relation to a child who:

                     (a)  is 18 or over; or

                     (b)  is or has been married; or

                     (c)  is in a de facto relationship.

             (2)  A parenting order in relation to a child stops being in force if the child turns 18, marries or enters into a de facto relationship.

             (3)  A court having jurisdiction under this Part may make a declaration to the effect that the child is in, or has entered into, a de facto relationship.

             (4)  A declaration under subsection (3) has effect for the purposes of this Act but does not have effect for any other purpose (including, for example, other laws of the Commonwealth or laws of the States and Territories).

65J  Effect of adoption on parenting order

             (1)  This section applies if:

                     (a)  a child is adopted; and

                     (b)  immediately before the adoption, a parenting order was in force in relation to the child.

             (2)  The parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

65K  What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives

             (1)  This section applies if:

                     (a)  a parenting order is in force that provides that a child is to live with one of the child’s parents; and

                     (b)  that parent dies; and

                     (c)  the parenting order does not provide for what is to happen on that parent’s death.

             (2)  The surviving parent cannot require the child to live with him or her.

             (3)  The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.

             (4)  In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.

65L  Family consultants may be required to supervise or assist compliance with parenting orders

             (1)  If a court makes a parenting order in relation to a child, the court may also, subject to subsection (2), make either or both of the following orders:

                     (a)  an order requiring compliance with the parenting order, as far as practicable, to be supervised by a family consultant;

                     (b)  an order requiring a family consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order.

             (2)  In deciding whether to make a particular order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

65LA  Court may order attendance at a post‑separation parenting program

             (1)  In proceedings for a parenting order, the court may make an order directing a party to the proceedings to attend a post‑separation parenting program.

Note:          Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the party’s needs (see section 11E).

             (2)  In deciding whether to make a particular order under subsection (1), a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

             (3)  In this section:

proceedings for a parenting order includes:

                     (a)  proceedings for the enforcement of a parenting order; and

                     (b)  any other proceedings in which a contravention of a parenting order is alleged.

65LB  Conditions for providers of post‑separation parenting programs

             (1)  An organisation meets the conditions in this section if:

                     (a)  it is a recipient organisation (see subsection (2)); or

                     (b)  there is a recipient organisation in relation to the organisation (see subsection (3)).

             (2)  An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order to provide services that include post‑separation parenting programs.

             (3)  An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if:

                     (a)  both:

                              (i)  the other organisation is a member of the organisation; and

                             (ii)  the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation’s members may provide services that include post‑separation parenting programs; or

                     (b)  both:

                              (i)  the organisation acts on behalf of a group of organisations that includes the other organisation; and

                             (ii)  the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include post‑separation parenting programs.

             (4)  The Minister may, in writing, designate for the purposes of this section:

                     (a)  a program; or

                     (b)  part of a program;

administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making post‑separation parenting programs available.

             (5)  An instrument under this section is not a legislative instrument.

Subdivision CGeneral obligations created by certain parenting orders

65M  General obligations created by parenting order that deals with whom a child lives with

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with.

             (2)  A person must not, contrary to the order:

                     (a)  remove the child from the care of a person; or

                     (b)  refuse or fail to deliver or return the child to a person; or

                     (c)  interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.

65N  General obligations created by parenting order that deals with whom a child spends time with

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

             (2)  A person must not:

                     (a)  hinder or prevent a person and the child from spending time together in accordance with the order; or

                     (b)  interfere with a person and the child benefiting from spending time with each other under the order.

65NA  General obligations created by parenting order that deals with whom a child communicates with

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.

             (2)  A person must not:

                     (a)  hinder or prevent a person and the child from communicating with each other in accordance with the order; or

                     (b)  interfere with the communication that a person and the child are supposed to have with each other under the order.

65P  General obligations created by parenting order that allocates parental responsibility

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order allocates parental responsibility for the child to a person (the carer).

             (2)  A person must not hinder the carer in, or prevent the carer from, discharging that responsibility.

65Q  Court may issue warrant for arrest of alleged offender

             (1)  This section applies if:

                     (a)  a parenting order provides that:

                              (i)  a child is to live with a person; or

                             (ii)  a child is to spend time with a person; or

                            (iii)  a child is to communicate with a person; and

                     (b)  a court having jurisdiction under this Part is satisfied, on application by the person referred to in paragraph (1)(a), that there are reasonable grounds for believing that a person (the alleged offender) has contravened section 65M, 65N or 65NA in relation to the order; and

                     (c)  there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

                     (d)  the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Division 13A for the alleged contravention.

             (2)  The court may issue a warrant authorising a person to whom it is addressed to arrest the alleged offender.

             (3)  A warrant stops being in force:

                     (a)  if a date not later than 6 months after the issue of the warrant is specified in the warrant as the date when it stops being in force—on that date; or

                     (b)  otherwise—6 months after the issue of the warrant.

Subdivision DDealing with people who have been arrested

65R  Situation to which Subdivision applies

                   This Subdivision applies if a person:

                     (a)  is arrested under a warrant issued under subsection 65Q(2); or

                     (b)  is arrested without warrant under a recovery order.

65S  Arrested person to be brought before a court

             (1)  The arresting person must:

                     (a)  ensure that the alleged offender is brought before a court having jurisdiction under this Part before the end of the holding period applicable under subsection (4); and

                     (b)  take all reasonable steps to ensure that, before the alleged offender is brought before a court, the person who applied for the warrant or recovery order is aware:

                              (i)  that the alleged offender has been arrested; and

                             (ii)  of the court before which the alleged offender is to be brought.

             (2)  The alleged offender must not be released before the end of the holding period except under an order of a court having jurisdiction under this Part.

             (3)  This section does not authorise the holding in custody of the alleged offender after the end of the holding period.

             (4)  The holding period is:

                     (a)  if a Saturday, Sunday or public holiday starts within 24 hours after the arrest of the alleged offender—the longer of the following periods:

                              (i)  the period starting with the arrest and ending 48 hours later;

                             (ii)  the period starting with the arrest and ending at the end of the next day after the day of the arrest that is not a Saturday, Sunday or public holiday; or

                     (b)  in any other case—the period starting with the arrest and ending 24 hours later.

65T  Obligation of court—where application before it to deal with contravention

             (1)  This section applies if:

                     (a)  the alleged offender is brought before a court under section 65S; and

                     (b)  there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

             (2)  The court must, without delay, proceed to hear and determine the application.

65U  Obligation of court—where no application before it, but application before another court, to deal with contravention

             (1)  This section applies if:

                     (a)  the alleged offender is brought before a court under section 65S; and

                     (b)  there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

                     (c)  the court is aware that there is an application before another court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

             (2)  The court must, without delay:

                     (a)  order that the alleged offender is to be released from custody on his or her entering into a recognizance (with or without surety or security) that he or she will attend before the other court on a date, at a time and at a place specified by the court; or

                     (b)  order the arresting person to arrange for the alleged offender to be brought before the other court on such date and at such time as the court specifies, being a date and time such that the alleged offender is to be brought before the other court as soon as practicable, and in any event not more than 72 hours, after the order is made.

             (3)  If a court makes an order under paragraph (2)(b) for the alleged offender to be brought before another court:

                     (a)  subject to paragraph (c), the alleged offender may be kept in custody until he or she is brought before the other court; and

                     (b)  if the alleged offender is brought before the other court as required by the order, the other court must, without delay, proceed to hear and determine the application mentioned in paragraph (1)(c); and

                     (c)  if the alleged offender is not brought before the other court as required by the order, he or she must be released without delay.

65V  Obligation of court—where no application before any court to deal with contravention

             (1)  This section applies if:

                     (a)  the alleged offender is brought before a court under section 65S; and

                     (b)  there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

                     (c)  so far as the court is aware, there is no application, or no longer any application, before any other court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

             (2)  The court must, without delay, order the release of the alleged offender.

65W  Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b)

             (1)  If a court hearing an application as required by subsection 65T(2) or paragraph 65U(3)(b) adjourns the hearing, the court must:

                     (a)  order the alleged offender to be kept in such custody as the court considers appropriate during the adjournment; or

                     (b)  order that the alleged offender is to be released from custody, either on his or her entering into a recognizance (with or without surety or security) that he or she will attend before the court on the resumption of the hearing or otherwise.

             (2)  This section does not authorise the holding in custody of the alleged offender during an adjournment of proceedings that:

                     (a)  is expressed to be for a period of more than 24 hours; or

                     (b)  continues for more than 24 hours.

Subdivision EObligations under parenting orders relating to taking or sending children from Australia

65X  Interpretation

             (1)  In this Subdivision:

parenting order to which this Subdivision applies means a parenting order to the extent to which it provides, or would provide, that:

                     (a)  a child is to live with a person; or

                     (b)  a child is to spend time with a person; or

                     (c)  a child is to communicate with a person; or

                     (d)  a person is to have parental responsibility for a child.

             (2)  For the purposes of this Subdivision, if an appeal against a decision of a court in proceedings has been instituted and is pending, the proceedings are taken to be pending and sections 65Z and 65ZB (rather than sections 65Y and 65ZA) apply.

65Y  Obligations if certain parenting orders have been made

             (1)  If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).

Penalty:  Imprisonment for 3 years.

Note:          The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).

             (2)  Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

                     (a)  it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or

                     (b)  it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

65Z  Obligations if proceedings for the making of certain parenting orders are pending

             (1)  If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2).

Penalty:  Imprisonment for 3 years.

Note:          The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).

             (2)  Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

                     (a)  it is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or

                     (b)  it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

65ZA  Obligations of owners etc. of aircraft and vessels if certain parenting orders made

             (1)  This section applies if:

                     (a)  a parenting order to which this Subdivision applies is in force; and

                     (b)  a person in whose favour the order was made has served on the captain, owner or charterer of an aircraft or vessel a statutory declaration made by the person not earlier than 7 days before the date of service that:

                              (i)  relates to the order; and

                             (ii)  complies with subsection (4).

             (2)  The person on whom the declaration is served must not permit the child identified in the declaration to leave a port or place in Australia in the aircraft or vessel for a destination outside Australia except as permitted by subsection (3).

Penalty:  60 penalty units.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

             (3)  Subsection (2) does not prohibit permitting the child to leave Australia in the aircraft or vessel if:

                     (a)  the child leaves in the company, or with the consent in writing (authenticated as prescribed), of the person who made the statutory declaration; or

                     (b)  the child leaves in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  The statutory declaration must contain:

                     (a)  full particulars of the order, including:

                              (i)  the full name and the date of birth of the child to whom the order relates; and

                             (ii)  the full names of the parties to the proceedings in which the order was made; and

                            (iii)  the terms of the order; and

                     (b)  such other matters (if any) as are prescribed.

65ZB  Obligations of owners etc. of aircraft and vessels if proceedings for the making of certain parenting orders are pending

             (1)  This section applies if:

                     (a)  proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending; and

                     (b)  a party to the proceedings has served on the captain, owner or charterer of a vessel a statutory declaration made by the party not earlier than 7 days before the date of service that:

                              (i)  relates to the proceedings; and

                             (ii)  complies with subsection (4).

             (2)  The person on whom the declaration is served must not permit the child identified in the declaration to leave a port or place in Australia in the aircraft or vessel for a destination outside Australia except as permitted by subsection (3).

Penalty:  60 penalty units.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

             (3)  Subsection (2) does not prohibit permitting the child to leave Australia in the aircraft or vessel if:

                     (a)  the child leaves in the company, or with the consent in writing (authenticated as prescribed), of the party who made the statutory declaration; or

                     (b)  in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  The statutory declaration must contain:

                     (a)  full particulars of the Part VII proceedings, including:

                              (i)  the full name and the date of birth of the child to whom the proceedings relate; and

                             (ii)  the full names of the parties to the proceedings; and

                            (iii)  the name of the court, the nature of the proceedings and the date of institution of the proceedings; and

                            (iv)  if an appeal has been instituted in the proceedings—the name of the court in which the appeal was instituted and the date on which it was instituted; and

                     (b)  a statement that the Part VII proceedings are pending at the date of the declaration; and

                     (c)  such other matters (if any) as are prescribed.

65ZC  General provisions applicable to sections 65ZA and 65ZB

             (1)  A declaration under section 65ZA or 65ZB may be served on the owner or charterer of an aircraft or vessel, or on the agent of the owner of an aircraft or vessel, by sending the declaration by registered post addressed to the owner, charterer or agent at the principal place of business of the owner, charterer or agent.

             (2)  The captain, owner or charterer of an aircraft or vessel, or the agent of the owner of an aircraft or vessel, is not liable in any civil or criminal proceedings in respect of anything done in good faith for the purpose of complying with section 65ZA or 65ZB.

             (3)  If an act or omission by a person that constitutes an offence against subsection 65ZA(2) or 65ZB(2) is also an offence against any other law, the person may be prosecuted and convicted under that other law, but nothing in this subsection makes a person liable to be punished twice in respect of the same act or omission.

65ZD  State or Territory laws stopping children leaving Australia not affected

                   Nothing in this Subdivision prevents or restricts the operation of any law of a State or Territory under which:

                     (a)  action may be taken to prevent a child from leaving Australia or being taken or sent outside Australia; or

                     (b)  a person may be punished in respect of the taking or sending of a child outside Australia.


 

Division 7Child maintenance orders

Subdivision AWhat this Division does

66A  What this Division does

                   This Division:

                     (a)  contains statements of objects and principles relevant to the making of child maintenance orders (Subdivision B); and

                     (b)  deals with the relationship between this Division and the Child Support (Assessment) Act 1989 (Subdivision C); and

                     (c)  deals with applying for and making child maintenance orders (Subdivision D); and

                     (d)  deals with other aspects of courts’ powers in relation to child maintenance orders (Subdivision E); and

                    (da)  deals with varying the maintenance of certain children (Subdivision EA); and

                     (e)  deals with when child maintenance orders stop being in force (Subdivision F).

Subdivision BObjects and principles

66B  Objects

             (1)  The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

             (2)  Particular objects of this Division include ensuring:

                     (a)  that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

                     (b)  that parents share equitably in the support of their children.

66C  Principles—parents have primary duty to maintain

             (1)  The parents of a child have, subject to this Division, the primary duty to maintain the child.

             (2)  Without limiting the generality of subsection (1), the duty of a parent to maintain a child:

                     (a)  is not of lower priority than the duty of the parent to maintain any other child or another person; and

                     (b)  has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

                              (i)  himself or herself; or

                             (ii)  any other child or another person that the parent has a duty to maintain; and

                     (c)  is not affected by:

                              (i)  the duty of any other person to maintain the child; or

                             (ii)  any entitlement of the child or another person to an income tested pension, allowance or benefit.

66D  Principles—when step‑parents have a duty to maintain

             (1)  The step‑parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step‑parent to have that duty.

             (2)  Any duty of a step‑parent to maintain a step‑child:

                     (a)  is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and

                     (b)  does not derogate from the primary duty of the parents to maintain the child.

Subdivision CRelationship with Child Support (Assessment) Act

66E  Child maintenance order not to be made etc. if application for administrative assessment of child support could be made

             (1)  A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 for administrative assessment of child support (within the meaning of that Act):

                     (a)  by the applicant seeking payment of child support for the child from the respondent; or

                     (b)  by the respondent seeking payment of child support for the child from the applicant.

             (2)  Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

             (3)  This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

Subdivision DApplying for and making child maintenance orders

66F  Who may apply for a child maintenance order

             (1)  Unless subsection (2) applies, a child maintenance order in relation to a child may be applied for by:

                     (a)  either or both of the child’s parents; or

                     (b)  the child; or

                    (ba)  a grandparent of the child; or

                     (c)  any other person concerned with the care, welfare or development of the child.

             (2)  A child maintenance order in relation to a child who is under the guardianship, or in the care (however described), of a person under a child welfare law may only be applied for by:

                     (a)  the child; or

                     (b)  a parent of the child who has the daily care of the child; or

                     (c)  a relative of the child who has the daily care of the child; or

                     (d)  a child welfare officer of the relevant State or Territory.

66G  Court’s power to make child maintenance order

                   In proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper.

66H  Approach to be taken in proceedings for child maintenance order

                   In proceedings for the making of a child maintenance order in relation to a child, the court must:

                     (a)  consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J); and

                     (b)  determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 66K).

66J  Matters to be taken into account in considering financial support necessary for maintenance of child

             (1)  In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

                     (a)  the matters mentioned in section 66B; and

                     (b)  the proper needs of the child (this is expanded on in subsection (2)); and

                     (c)  the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).

             (2)  In taking into account the proper needs of the child the court:

                     (a)  must have regard to:

                              (i)  the age of the child; and

                             (ii)  the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

                            (iii)  any special needs of the child; and

                     (b)  may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

             (3)  In taking into account the income, earning capacity, property and financial resources of the child, the court must:

                     (a)  have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

                     (b)  disregard:

                              (i)  the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

                             (ii)  any entitlement of the child or any other person to an income tested pension, allowance or benefit.

             (4)  Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

66K  Matters to be taken into account in determining contribution that should be made by party etc.

             (1)  In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

                     (a)  the matters mentioned in sections 66B, 66C and 66D; and

                     (b)  the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

                     (c)  the commitments of the party, or each of those parties, that are necessary to enable the party to support:

                              (i)  himself or herself; or

                             (ii)  any other child or another person that the person has a duty to maintain; and

                     (d)  the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

                     (e)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

             (2)  In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

             (3)  In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

             (4)  In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:

                     (a)  any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

                     (b)  the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

             (5)  In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

                     (a)  by way of lump sum payment; or

                     (b)  by way of transfer or settlement of property; or

                     (c)  in any other way.

             (6)  Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

66L  Children who are 18 or over

             (1)  A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:

                     (a)  to enable the child to complete his or her education; or

                     (b)  because of a mental or physical disability of the child.

The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

             (2)  A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:

                     (a)  to enable the child to complete his or her education; or

                     (b)  because of a mental or physical disability of the child.

             (3)  A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.

66M  When step‑parents have a duty to maintain

             (1)  As stated in section 66D, a step‑parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.

             (2)  A court having jurisdiction under this Part may, by order, determine that it is proper for a step‑parent to have a duty of maintaining a step‑child.

             (3)  In making an order under subsection (2), the court must have regard to these (and no other) matters:

                     (a)  the matters referred to in sections 60F, 66B and 66C; and

                     (b)  the length and circumstances of the marriage to the relevant parent of the child; and

                     (c)  the relationship that has existed between the step‑parent and the child; and

                     (d)  the arrangements that have existed for the maintenance of the child; and

                     (e)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

66N  Determining financial contribution of step‑parent

                   In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step‑parent of the child, the court must take into account:

                     (a)  the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and

                     (b)  the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.

Subdivision EOther aspects of courts’ powers

66P  General powers of court

             (1)  In proceedings for a child maintenance order, a court may do all or any 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 amount;

                     (c)  order that a specified transfer or settlement of property be made by way of maintenance for a child;

                     (d)  order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

                     (e)  order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

                      (f)  order that payment be made to a specified person or public authority or into court;

                     (g)  make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;

                     (h)  make an order imposing terms and conditions;

                      (i)  make an order by consent;

                      (j)  make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (i)) that it considers appropriate;

                     (k)  make an order under this Division at any time.

             (2)  The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Division, in relation to the maintenance of a child does not prevent a court from making a subsequent order in relation to the maintenance of the child.

             (3)  The applicable Rules of Court may make provision with respect to the making of orders under this Division (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

66Q  Urgent child maintenance orders

                   If, in proceedings for a child maintenance order in relation to a child:

                     (a)  the court considers that the child is in immediate need of financial assistance; but

                     (b)  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 the proceedings, of such periodic or other amount as the court considers appropriate.

66R  Specification in orders of payments etc. for child maintenance purposes

             (1)  If:

                     (a)  a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a child, is made by consent or varies an earlier order) that has the effect of requiring:

                              (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 payment, transfer or settlement is to make provision for the maintenance of a child or children;

the court must:

                     (c)  express the order to be an order to which this section applies; and

                     (d)  specify:

                              (i)  the child or children for whose maintenance provision is made by the payment, transfer or settlement; and

                             (ii)  the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the child or each child, as the case may be.

             (2)  If:

                     (a)  a court makes an order of a kind referred to in paragraph (1)(a); and

                     (b)  the order:

                              (i)  is not expressed to be an order to which this section applies; or

                             (ii)  is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d);

any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, is to be taken not to make provision for the maintenance of a child.

66S  Modification of child maintenance orders

             (1)  This section applies if:

                     (a)  there is in force an order (the first order), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):

                              (i)  made by a court; or

                             (ii)  registered in a court; and

                     (b)  a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.

          (1A)  With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:

                     (a)  discharging the first order; or

                     (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; or

                     (c)  if the operation of the order has been suspended under paragraph (b) or (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

                             (ii)  in any other way.

          (1B)  However, the 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 maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

             (2)  In any other case, the court may, by order:

                     (a)  discharge the first order if there is just cause for so doing; or

                     (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; or

                     (c)  if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or

                     (d)  subject to subsection (3), vary the order:

                              (i)  so as to increase or decrease any amount ordered to be paid by the order; or

                             (ii)  in any other way.

             (3)  The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:

                     (a)  that, since the order was made or last varied:

                              (i)  the circumstances of the child have changed so as to justify the variation; or

                             (ii)  the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or

                            (iii)  the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or

                            (iv)  in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such as to justify the variation; or

                     (b)  that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or

                     (c)  if the order was made by consent—that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or

                     (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.

             (4)  In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

             (5)  The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.

             (6)  In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.

             (7)  An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.

             (8)  If an order (the subsequent order) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.

             (9)  If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.

           (10)  For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).

           (11)  The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.

Subdivision EAVarying the maintenance of certain children

66SA  Varying the maintenance of certain children

             (1)  This section applies to persons who:

                     (a)  are parties to an agreement (the original 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;

and cannot properly make an application under the Child Support (Assessment) Act 1989 for administrative assessment of child support (within the meaning of that Act) for the child seeking payment of child support by the other person.

             (2)  The persons may, by registering a written agreement in a court having jurisdiction under this Part, 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 another person to an income tested pension, allowance or benefit to affect the duty of that child’s parents to maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

             (4)  If the original agreement or order is varied under subsection (2), it:

                     (a)  continues to operate despite the death of a party to the agreement or of a person entitled to 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;

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.

             (6)  This section applies despite anything in Division 4.

Subdivision FWhen child maintenance orders stop being in force

66T  Effect of child turning 18

                   As stated in subsection 66L(3), a child maintenance order in relation to a child stops being in force when the child turns 18, unless the order is expressed to continue in force after then.

66U  Effect of death of child, person liable to pay or person entitled to receive

             (1)  A child maintenance order in relation to a child stops being in force on the death of the child.

             (2)  A child maintenance order in relation to a child stops being in force on the death of the person liable to make payments under the order.

             (3)  Subsection (2) does not apply to an order made before the commencement of section 38 of the Family Law Amendment Act 1983 if the order was expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the death of the person liable to make payments under the order and, in that case, the order is binding on the legal personal representative of the deceased person.

             (4)  A child maintenance order in relation to a child stops being in force on the death of the person entitled to receive payments under the order.

             (5)  Subsection (4) does not apply to an order if:

                     (a)  the order is expressed to continue in force after the death of the person first entitled to receive payments under the order; and

                     (b)  the order specifies the person who is to receive the payments after that death.

66V  Effect of adoption, marriage or entering into a de facto relationship

             (1)  A child maintenance order in relation to a child stops being in force if the child is adopted, marries or enters into a de facto relationship.

             (2)  If a child to whom a child maintenance order applies dies, is adopted, marries or enters into a de facto relationship, the person entitled to receive payments under the order must, without delay, inform the person liable to make payments under the order.

             (3)  Any amounts paid under a child maintenance order in relation to a period after the child dies, is adopted, marries or enters into a de facto relationship may be recovered in a court having jurisdiction under this Part.

             (4)  A court having jurisdiction under this Part may make a declaration to the effect that a child is in, or has entered into, a de facto relationship.

             (5)  A declaration under subsection (4) has effect for the purposes of this Act but does not have effect for any other purpose (including, for example, other laws of the Commonwealth or laws of the States and Territories).

66VA  Children who are 18 or over: change of circumstances

             (1)  A child maintenance order made under section 66L:

                     (a)  to enable the child to complete his or her education; or

                     (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, 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 having jurisdiction under this Part.

66W  Recovery of arrears

             (1)  Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), 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, 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 satisfied that:

                              (i)  the circumstances of the person liable to pay the arrears are such as to justify the variation; or

                             (ii)  the circumstances of the person entitled 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 circumstances of the estate are such as to justify the variation.

Subdivision GRecovery of amounts paid under maintenance orders

66X  Recovery of amounts paid, and property transferred or settled, under maintenance orders

             (1)  This section applies if:

                     (a)  a court has at any time purported to make an order (the purported order) of a kind referred to in paragraph 66P(1)(a), (b) or (c) requiring a person (the maintenance provider) to pay an amount, or to transfer or settle property, by way of maintenance for a child; and

                     (b)  the maintenance provider has:

                              (i)  paid another person an amount or amounts; or

                             (ii)  transferred or settled property;

                            in compliance, or partial compliance, with the purported order; and

                     (c)  a court has determined that the maintenance provider is not a parent or step‑parent of the child.

             (2)  If the maintenance provider applies to a court having jurisdiction under this Part for an order under this subsection, the court must make such order as it considers just and equitable in the circumstances, for:

                     (a)  if the purported order was of a kind referred to in paragraph 66P(1)(a) or (b)—the repayment to the maintenance provider, by the person to whom the amount or amounts referred to in subparagraph (1)(b)(i) of this section were paid, of an amount up to, or equal to, that amount or the sum of those amounts; or

                     (b)  if the purported order was of the kind referred to in paragraph 66P(1)(c)—the return to the maintenance provider of:

                              (i)  the property referred to in subparagraph (1)(b)(ii) of this section; or

                             (ii)  an amount up to, or equal to, the value of that property.

The court may only order the repayment of an amount that is less than the amount, or the sum of the amounts, referred to in subparagraph (1)(b)(i) of this section, or the return of an amount that is less than the value of the property referred to in subparagraph (1)(b)(ii) of this section, in exceptional circumstances.

             (3)  If the purported order was of the kind referred to in paragraph 66P(1)(c) and the court that made the order did so:

                     (a)  in part by way of providing maintenance for the child; and

                     (b)  in part for some other purpose;

the reference in paragraph (2)(b) to the property, or the value of the property, referred to in subparagraph (1)(b)(ii) is taken to be a reference to that property, or the value of that property, only to the extent to which that property was transferred or settled by way of providing maintenance for the child.

             (4)  Without limiting paragraph (2)(b), the orders that the court may make under that paragraph include the following:

                     (a)  an order that a specified payment be made;

                     (b)  an order that a specified transfer or settlement of property be made;

                     (c)  an order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order.

             (5)  An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.


 

Division 8Other matters relating to children

Subdivision AWhat this Division does

67A  What this Division does

                   This Division deals with:

                     (a)  the liability of a father to contribute towards child bearing expenses if he is not married to the child’s mother (Subdivision B); and

                     (b)  orders for the location and recovery of children (Subdivision C); and

                     (c)  the reporting of allegations of child abuse (Subdivision D); and

                     (d)  other orders about children (Subdivision E).

Subdivision BFather’s liability to contribute towards child bearing expenses if not married to mother

67B  Father liable to contribute towards maintenance and expenses of mother

                   The father of a child who is not married to the child’s mother is, subject to this Division, liable to make a proper contribution towards:

                     (a)  the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and

                     (b)  the mother’s reasonable medical expenses in relation to the pregnancy and birth; and

                     (c)  if the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother’s funeral; and

                     (d)  if the child is stillborn, or dies and the death is related to the birth, the reasonable expenses of the child’s funeral.

67C  Matters to be taken into account in proceedings under Subdivision

             (1)  In proceedings under this Subdivision in relation to the birth of a child, the court must, in determining the contribution that should be made by the father of the child, take into account the following matters only:

                     (a)  the income, earning capacity, property and financial resources of the mother and the father of the child;

                     (b)  commitments of each of those persons that are necessary to enable the person to support:

                              (i)  himself or herself; or

                             (ii)  any other child or another person that the person has a duty to maintain;

                     (c)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

             (2)  In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income.

             (3)  In taking into account the income, earning capacity, property and financial resources of the mother, the court must disregard any entitlement of the mother to an income tested pension, allowance or benefit.

             (4)  Subsections (2) and (3) do not limit the matters to which the court may have regard in taking into account matters referred to in subsection (1).

67D  Powers of court in proceedings under Subdivision

             (1)  In proceedings under this Subdivision in relation to the birth of a child, the court may make such order as it thinks proper.

             (2)  In exercising its powers under this Subdivision, a court may do all or any of the following:

                     (a)  order payment of a lump sum, whether in one amount or by instalments;

                     (b)  order payment of a weekly, monthly or other periodic amount;

                     (c)  order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

                     (d)  order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

                     (e)  order that payment be made to a specified person or public authority or into court;

                      (f)  make a permanent order, an order pending the disposal of proceedings, an order for a fixed period or an order until further order;

                     (g)  make an order imposing terms and conditions;

                     (h)  make an order by consent;

                      (i)  make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (h)) that it considers appropriate;

                      (j)  make an order under this Subdivision at any time (whether before or after the birth of the relevant child).

             (3)  The applicable Rules of Court may make provision with respect to the making of orders under this Subdivision (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of amounts payable under them.

67E  Urgent orders

                   If, in proceedings under this Subdivision in relation to the birth of a child:

                     (a)  the court is of the opinion that the applicant is in immediate need of financial assistance; but

                     (b)  it is not practicable in the circumstances to determine immediately what order (if any) should be made (whether because the applicant has not yet given birth to the child or otherwise);

the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate.

67F  Who may institute proceedings

                   Proceedings under this Subdivision in relation to the birth of a child may be instituted by the mother or by the mother’s legal personal representative.

67G  Time limit for institution of proceedings

             (1)  Proceedings under this Subdivision in relation to the birth of a child may be instituted:

                     (a)  at any time during the pregnancy of the mother; or

                     (b)  after the birth of the child, but not later than 12 months after the birth except by leave of the court.

             (2)  The court must not grant leave under paragraph (1)(b) unless it is satisfied that refusal to grant leave would cause hardship to the applicant, the child or another person.

Subdivision CLocation and recovery of children

67J  Meaning of location order and Commonwealth information order

             (1)  A location order is an order made by a court requiring:

                     (a)  a person to provide the Registry Manager of the court with information that the person has or obtains about the child’s location; or

                     (b)  the Secretary of a Department, or an appropriate authority of a Commonwealth instrumentality, to provide the Registry Manager of the court with information about the child’s location that is contained in or comes into the records of the Department or instrumentality.

             (2)  A Commonwealth information order is a location order described in paragraph (1)(b).

67K  Who may apply for a location order

             (1)  A location order in relation to a child may be applied for by:

                     (a)  a person with whom the child is to live under a parenting order; or

                     (b)  a person with whom the child is to spend time under a parenting order; or

                     (c)  a person with whom the child is to communicate under a parenting order; or

                  (caa)  a person who has parental responsibility for the child under a parenting order; or

                    (ca)  a grandparent of the child; or

                     (d)  any other person concerned with the care, welfare or development of the child.

             (2)  For the purposes of the Child Protection Convention, a person (including the Commonwealth central authority) may apply to a court for a location order.

             (3)  In subsection (2):

Child Protection Convention has the same meaning as in section 111CA.

Commonwealth central authority has the same meaning as in section 111CA.

67L  Child’s best interests paramount consideration in making a location order

                   In deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

67M  Provisions about location orders, other than Commonwealth information orders

             (1)  This section applies to location orders other than Commonwealth information orders.

             (2)  Subject to section 67L, a court having jurisdiction under this Part or section 111CX, or exercising jurisdiction in proceedings arising under regulations made for the purposes of Part XIIIAA, may make a location order if it is satisfied that the person to whom the order applies is likely to have information about the child’s location.

             (3)  If the person to whom a location order applies holds an office or position in, or in relation to, a Department or a Commonwealth instrumentality, the order does not apply to information that the person has or obtains because of holding that office or position.

             (4)  A location order stays in force for 12 months or such longer period as the court considers appropriate.

             (5)  While a location order is in force, the person to whom it applies must provide the information sought by the order as soon as practicable, or as soon as practicable after the person obtains it.

             (6)  The person to whom a location order applies must comply with the order in spite of anything in any other law.

67N  Provisions about Commonwealth information orders

             (1)  This section applies to Commonwealth information orders.

             (2)  Subject to section 67L, a court having jurisdiction under this Part or section 111CX, or exercising jurisdiction in proceedings arising under regulations made for the purposes of Part XIIIAA, may make a Commonwealth information order if it is satisfied that information about the child’s location is likely to be contained in, or to come into, the records of the Department or Commonwealth instrumentality concerned.

             (3)  A court must not make a Commonwealth information order unless:

                     (a)  a copy of the application for the order has been served in accordance with the applicable Rules of Court on the person to whom the order will apply (being the Secretary of the Department concerned or an appropriate authority of the Commonwealth instrumentality concerned); and

                     (b)  if that Department or Commonwealth instrumentality is prescribed for the purposes of this paragraph—either:

                              (i)  the period of 7 days after service of that copy of the application has expired; or

                             (ii)  the court considers that there are special circumstances because of which the order should be made before the end of that period of 7 days.

             (4)  If an application for a Commonwealth information order relates to more than one Department or Commonwealth instrumentality, the court must not make the order in relation to more than one of them unless the court considers it should do so because of exceptional circumstances.

             (5)  A court may state that a Commonwealth information order only applies to records of a particular kind if the court considers that:

                     (a)  the information sought by the order is only likely to be contained in records of that kind; and

                     (b)  to apply the order to all records of the Department or Commonwealth instrumentality concerned would place an unreasonable burden on its resources.

             (6)  A Commonwealth information order stays in force for 12 months.

             (7)  While a Commonwealth information order is in force, the person to whom the order applies must, subject to subsection (9), provide the information sought by the order as soon as practicable, or as soon as practicable after it comes into the records of the Department or Commonwealth instrumentality concerned.

             (8)  If the person (the official) to whom a Commonwealth information order applies provides another person (in accordance with the order) with information sought by the order, the official must, at the same time, provide the other person with any information about actual or threatened violence to the child concerned, to a parent of the child, or to another person with whom the child lives, that is in the records of the Department or Commonwealth instrumentality concerned.

             (9)  A Commonwealth information order does not require the records of the Department or Commonwealth instrumentality concerned to be searched for the information sought by the order more often than once every 3 months unless specifically so ordered by the court.

           (10)  The person to whom a Commonwealth information order applies must comply with the order in spite of anything in any other law.

67P  Information provided under location order not to be disclosed except to limited persons

             (1)  Information provided to the Registry Manager of a court under a location order (including a Commonwealth information order) must not be disclosed by the Registry Manager, or by any other person who obtains the information (whether directly or indirectly and whether under this section or otherwise) because of the provision of the information to the Registry Manager, except to:

                     (a)  the Registry Manager of another court; or

                     (b)  an officer of the court, or of another court, for the purpose of that officer’s responsibilities or duties; or

                     (c)  a process‑server engaged by, or by an officer of, the court or another court; or

                     (d)  with the leave of the court that made the location order:

                              (i)  the legal adviser of the applicant for the order; or

                             (ii)  a process‑server engaged by that legal adviser; or

                     (e)  if a recovery order that consists of or includes an authorisation or direction described in paragraph 67Q(b) or (c) is in force—a person to whom the authorisation or direction is addressed; or

                      (f)  with the leave of the court that made the location order:

                              (i)  the Commonwealth central authority; or

                             (ii)  a central authority or a competent authority of a Convention country.

Penalty:  120 penalty units.

Note:          For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914.

             (2)  Nothing in paragraphs (1)(a) to (e) authorises the disclosure of information to the applicant for the location order.

             (3)  In paragraph (1)(f):

central authority has the same meaning as in section 111CA.

Commonwealth central authority has the same meaning as in section 111CA.

competent authority has the same meaning as in section 111CA.

Convention country has the same meaning as in section 111CA.

67Q  Meaning of recovery order

                   A recovery order is an order made by a court doing all or any of the following:

                     (a)  requiring the return of a child to:

                              (i)  a parent of the child; or

                             (ii)  a person with whom the child is to live under a parenting order; or

                            (iii)  a person with whom the child is to spend time under a parenting order; or

                            (iv)  a person with whom the child is to communicate under a parenting order; or

                             (v)  a person who has parental responsibility for the child;

                     (b)  authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child;

                     (c)  authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child;

                     (d)  authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to:

                              (i)  a parent of the child; or

                             (ii)  a person described in subparagraph (a)(ii), (iii), (iv) or (v); or

                            (iii)  some other person on behalf of a person described in subparagraph (i) or (ii);

                     (e)  giving directions about the day‑to‑day care of a child until the child is returned or delivered to another person;

                      (f)  prohibiting a person from again removing or taking possession of a child;

                     (g)  authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.

Note 1:       Section 122AA authorises the use of reasonable force in making an arrest, and Subdivision D of Division 6 deals with what is to happen to a person arrested without warrant under a recovery order.

Note 2:       If a recovery order authorises a person to recover a child, the person is authorised to recover the child on each occasion that it is necessary to do so while the order remains in force: see subsection 67W(3).

67R  How recovery orders authorise or direct people

             (1)  An authorisation or direction described in paragraph 67Q(b), (c) or (d) may be addressed to:

                     (a)  a named person; or

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

             (2)  Without limiting the generality of subsection (1), an authorisation or direction described in paragraph 67Q(b), (c) or (d) may be addressed to:

                     (a)  a named person who holds an appointment as a child recovery officer under subsection (3); or

                     (b)  every person from time to time holding or acting in an office of child recovery officer.

             (3)  The Attorney‑General may appoint persons to be child recovery officers for the purposes of this Subdivision.

             (4)  An appointment under subsection (3) may be 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.

67S  How recovery orders to stop and search etc. name or describe vehicles, places etc.

                   An authorisation or direction described in paragraph 67Q(b) may be expressed to apply to:

                     (a)  a vehicle, vessel, aircraft, premises or place named or described either specifically or in general terms; or

                     (b)  any vehicle, vessel, aircraft, premises or place in which there is, at any time, reasonable cause to believe that the child concerned may be found.

67T  Who may apply for a recovery order

                   A recovery order in relation to a child may be applied for by:

                     (a)  a person with whom the child is to live under a parenting order; or

                     (b)  a person with whom the child is to spend time under a parenting order; or

                     (c)  a person with whom the child is to communicate under a parenting order; or

                  (caa)  a person who has parental responsibility for the child under a parenting order; or

                    (ca)  a grandparent of the child; or

                     (d)  any other person concerned with the care, welfare or development of the child.

67U  Court’s power to make recovery order

                   In proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper.

67V  Child’s best interests paramount consideration in making a recovery order

                   In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

67W  How long recovery order remains in force

             (1)  A recovery order remains in force for the period specified in the order or 12 months, whichever is the shorter period.

             (3)  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 anything has previously been done in accordance with the order.

67X  Persons not to prevent or hinder taking of action under recovery order

             (1)  This section applies to a recovery order that authorises or directs a person or persons to take action as described in paragraph 67Q(b), (c) or (d).

             (2)  A person must not prevent or hinder the taking of the action by the person or persons authorised or directed to take the action.

             (3)  If a court having jurisdiction under this Part is satisfied that a person has intentionally, and without reasonable excuse, contravened subsection (2), the court may:

                     (a)  order the person to pay a fine not exceeding 10 penalty units; or

                     (b)  order the person to enter into a recognizance (with or without surety or security) on conditions specified by the court; or

                     (c)  order the person to be imprisoned until he or she enters into a recognizance (with or without surety or security) on conditions specified by the court, or until the person has been imprisoned for 3 months, whichever happens first.

Note:          For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914.

             (4)  A court that makes an order under subsection (3) may make such other orders as it considers necessary to ensure the person does not again contravene subsection (2).

67Y  Obligation to notify persons of child’s return

             (1)  This section applies if:

                     (a)  a recovery order that consists of or includes provisions described in paragraph 67Q(a), (b), (c) or (d) is in force in relation to a child; and

                     (b)  the child returns, or is returned, to the person who applied for the order.

             (2)  The person must, as soon as practicable after the child’s return, give notice of the child’s return to:

                     (a)  the Registry Manager of the court that issued the recovery order; and

                     (b)  if a location order in relation to the child is in force and was applied for by the person—the person to whom the location order applies.

Subdivision DAllegations of child abuse

67Z  Where party to proceedings makes allegation of child abuse

             (1)  This section applies if 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)  If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.

             (4)  In this section:

prescribed form means the form prescribed by the applicable Rules of Court.

Registry Manager means:

                     (a)  in relation to the Family Court—the Registry Manager of the Registry of the Court; and

                     (b)  in relation to the Family Court of Western Australia—the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and

                     (c)  in relation to any other court—the principal officer of that court.

67ZA  Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc.

             (1)  This section applies to a person in the course of performing duties or functions, or exercising powers, as:

                     (a)  the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; or

                     (b)  the Registrar or a Deputy Registrar of the Family Court of Western Australia; or

                     (c)  a Registrar of the Federal Magistrates Court; or

                     (d)  a family consultant; or

                     (e)  a family counsellor; or

                      (f)  a family dispute resolution practitioner; or

                     (g)  an arbitrator; or

                     (h)  a lawyer independently representing a child’s interests.

             (2)  If the person has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

             (3)  If the person 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 person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

             (4)  The person 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, if the person knows that the authority has previously been notified about the abuse or risk under subsection (2) or subsection 67Z(3), but the person may notify the authority of his or her suspicion.

             (5)  If 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.

             (6)  If the person notifies a prescribed child welfare authority under this section or subsection 67Z(3), the person may make such disclosures of other information as the person reasonably believes are necessary to enable the authority to properly manage the matter the subject of the notification.

67ZB  No liability for notification under section 67Z or 67ZA

             (1)  A person:

                     (a)  must give notice under subsection 67Z(3) or 67ZA(2); or

                     (b)  may give notice under subsection 67ZA(3) or (4); or

                     (c)  may disclose other information under subsection 67ZA(6);

in spite of any obligation of confidentiality imposed on the person by this Act, another Act, another law or anything else (including a contract or professional ethics).

             (2)  A person 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 67Z(3) or 67ZA(2).

             (3)  A person 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 67ZA(3) or (4), or a disclosure under subsection 67ZA(6), if the notification or disclosure is made in good faith.

             (4)  Evidence of a notification under subsection 67Z(3) or subsection 67ZA(2), (3) or (4), or a disclosure under subsection 67ZA(6), is not admissible in any court except where that evidence is given by the person 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.

Subdivision EOther orders about children

67ZC  Orders relating to welfare of children

             (1)  In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.

             (2)  In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

67ZD  Orders for delivery of passports

                   If a court having jurisdiction under this Part considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate.


 

Division 9Injunctions

68A  What this Division does

                   This Division deals with proceedings for injunctions in relation to children.

68B  Injunctions

             (1)  If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

                     (a)  an injunction for the personal protection of the child; or

                     (b)  an injunction for the personal protection of:

                              (i)  a parent of the child; or

                             (ii)  a person with whom the child is to live under a parenting order; or

                            (iii)  a person with whom the child is to spend time under a parenting order; or

                            (iv)  a person with whom the child is to communicate under a parenting order; or

                             (v)  a person who has parental responsibility for the child; or

                     (c)  an injunction restraining a person from entering or remaining in:

                              (i)  a place of residence, employment or education of the child; or

                             (ii)  a specified area that contains a place of a kind referred to in subparagraph (i); or

                     (d)  an injunction restraining a person from entering or remaining in:

                              (i)  a place of residence, employment or education of a person referred to in paragraph (b); or

                             (ii)  a specified area that contains a place of a kind referred to in subparagraph (i).

             (2)  A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, 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 under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

68C  Powers of arrest

             (1)  If:

                     (a)  an injunction is in force under section 68B for the personal protection of a person (the protected person); and

                     (b)  a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:

                              (i)  causing, or threatening to cause, bodily harm to the protected person; or

                             (ii)  harassing, molesting or stalking that person;

the police officer may arrest the respondent without warrant.

Note:          Section 122AA authorises the use of reasonable force in making an arrest.

             (2)  For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.

             (3)  Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if:

                     (a)  the person had been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and

                     (b)  the person on whose application the injunction was granted under section 68B were the person on whose application the injunction under section 114 had been granted.


 

Division 10Independent representation of child’s interests

68L  Court order for independent representation of child’s interests

             (1)  This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration.

             (2)  If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:

                     (a)  may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

                     (b)  may make such other orders as it considers necessary to secure that independent representation of the child’s interests.

             (3)  However, if the proceedings arise under regulations made for the purposes of section 111B, the court:

                     (a)  may order that the child’s interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and

                     (b)  must specify those circumstances in making the order.

Note:          Section 111B is about the Convention on the Civil Aspects of International Child Abduction.

             (4)  A court may make an order for the independent representation of the child’s interests in the proceedings by a lawyer:

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  the child; or

                             (ii)  an organisation concerned with the welfare of children; or

                            (iii)  any other person.

             (5)  Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child’s interests to find out what the child’s views are on the matters to which the proceedings relate.

Note:          A person cannot require a child to express his or her views in relation to any matter, see section 60CE.

             (6)  Subsection (5) does not apply if complying with that subsection would be inappropriate because of:

                     (a)  the child’s age or maturity; or

                     (b)  some other special circumstance.

68LA  Role of independent children’s lawyer

When section applies

             (1)  This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.

General nature of role of independent children’s lawyer

             (2)  The independent children’s lawyer must:

                     (a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

                     (b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

             (3)  The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

             (4)  The independent children’s lawyer:

                     (a)  is not the child’s legal representative; and

                     (b)  is not obliged to act on the child’s instructions in relation to the proceedings.

Specific duties of independent children’s lawyer

             (5)  The independent children’s lawyer must:

                     (a)  act impartially in dealings with the parties to the proceedings; and

                     (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

                     (c)  if a report or other document that relates to the child is to be used in the proceedings:

                              (i)  analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

                             (ii)  ensure that those matters are properly drawn to the court’s attention; and

                     (d)  endeavour to minimise the trauma to the child associated with the proceedings; and

                     (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Disclosure of information

             (6)  Subject to subsection (7), the independent children’s lawyer:

                     (a)  is not under an obligation to disclose to the court;

                     (b)  cannot be required to disclose to the court;

any information that the child communicates to the independent children’s lawyer.

             (7)  The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.

             (8)  Subsection (7) applies even if the disclosure is made against the wishes of the child.

68M  Order that child be made available for examination

             (1)  This section applies if an independent children’s lawyer is appointed to independently represent a child’s interests in relation to proceedings under this Act.

             (2)  The court may, on application by the independent children’s lawyer, order a person mentioned in subsection (3) to make the child available, as specified in the order, for an examination to be made for the purpose of preparing a report about the child for use by the independent children’s lawyer in connection with the proceedings.

             (3)  The order may be directed to:

                     (a)  a parent of the child; or

                     (b)  a person with whom the child is to live under a parenting order; or

                     (c)  a person with whom the child is to spend time under a parenting order; or

                     (d)  a person with whom the child is to communicate under a parenting order; or

                     (e)  a person who has parental responsibility for the child.


 

Division 11Family violence

68N  Purposes of this Division

                   The purposes of this Division are:

                     (a)  to resolve inconsistencies between:

                              (i)  family violence orders; and

                             (ii)  certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and

                    (aa)  to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and

                     (b)  to achieve the objects and principles in section 60B.

Note:          Other provisions dealing with family violence and family violence orders are section 4 (definitions), paragraphs 60B(1)(b) and 60CC(2)(i) and (j), sections 60CF and 60CG, subsection 60I(9), section 60K, subsection 61DA(2), paragraph 65F(2)(b) and section 65P.

68P  Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order

             (1)  This section applies if:

                     (a)  a court:

                              (i)  makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or

                             (ii)  makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or

                            (iii)  grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and

                     (b)  the order made or injunction granted is inconsistent with an existing family violence order.

             (2)  The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:

                     (a)  specify in the order or injunction that it is inconsistent with an existing family violence order; and

                     (b)  give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and

                     (c)  explain (or arrange for someone else to explain) the order or injunction to:

                              (i)  the applicant and respondent in the proceedings for the order or injunction; and

                             (ii)  the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

                            (iii)  the person protected by the family violence order (if that person is not the applicant or respondent); and

                     (d)  include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:

                              (i)  the purpose of the order or injunction; and

                             (ii)  the obligations created by the order or injunction, including how the contact that it provides for is to take place; and

                            (iii)  the consequences that may follow if a person fails to comply with the order or injunction; and

                            (iv)  the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and

                             (v)  the circumstances in which a person may apply for variation or revocation of the order or injunction.

             (3)  As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:

                     (a)  the applicant and respondent in the proceedings for the order or injunction; and

                     (b)  the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

                     (c)  the person protected by the family violence order (if that person is not the applicant or respondent); and

                     (d)  the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and

                     (e)  the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and

                      (f)  a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.

             (4)  Failure to comply with this section does not affect the validity of the order or injunction.

68Q  Relationship of order or injunction made under this Act with existing inconsistent family violence order

             (1)  To the extent to which:

                     (a)  an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and

                     (b)  the order or injunction is inconsistent with an existing family violence order;

the family violence order is invalid.

             (2)  An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by:

                     (a)  the applicant or respondent in the proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or

                     (b)  the person against whom the family violence order is directed (if that person is not the applicant or respondent); or

                     (c)  the person protected by the family violence order (if that person is not the applicant or respondent).

             (3)  The court must hear and determine the application and make such declarations as it considers appropriate.

68R  Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act

Power

             (1)  In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:

                     (a)  a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or

                     (b)  a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

                     (c)  an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

                     (d)  to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:

                              (i)  an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or

                             (ii)  a registered parenting plan within the meaning of subsection 63C(6); or

                            (iii)  a recognisance entered into under an order under this Act.

             (2)  The court may do so:

                     (a)  on its own initiative; or

                     (b)  on application by any person.

Limits on power

             (3)  The court must not do so unless:

                     (a)  it also makes or varies a family violence order in the proceedings (whether or not by interim order); and

                     (b)  if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c)—the court has before it material that was not before the court that made that order or injunction.

             (4)  The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.

Relevant considerations

             (5)  In exercising its power under subsection (1), the court must:

                     (a)  have regard to the purposes of this Division (stated in section 68N); and

                     (b)  have regard to whether contact with both parents is in the best interests of the child concerned; and

                     (c)  if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order—be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

Registration of revival, variation, discharge or suspension of orders and other arrangements

             (6)  The regulations may require a copy of the court’s decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

68S  Application of Act and Rules when exercising section 68R power

             (1)  The following provisions do not apply to a court exercising the power under section 68R:

                     (a)  section 65C (who may apply for a parenting order);

                     (b)  subsection 65F(2) (parenting order not to be made unless parties attend family counselling);

                     (c)  section 60CG (court to consider risk of family violence);

                     (d)  section 69N (requirement to transfer certain proceedings);

                     (e)  any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration;

Note:       Even though the best interests of the child are not paramount, they must still be taken into account under paragraph 68R(5)(b).

                      (f)  any provisions of this Act or the applicable Rules of Court specified in the regulations.

             (2)  If a court is exercising the power under section 68R in proceedings to make an interim family violence order or an interim variation of a family violence order:

                     (a)  the court has a discretion about whether to apply paragraph 60CC(3)(a) (about taking into account a child’s views etc.); and

                     (b)  any provisions of this Act or the applicable Rules of Court specified in the regulations do not apply.

             (3)  A court exercising the power under section 68R may, as it thinks appropriate, dispense with any otherwise applicable Rules of Court.

68T  Special provisions relating to proceedings to make an interim (or interim variation of) family violence order

             (1)  If, in proceedings to make an interim family violence order or an interim variation of a family violence order, the court revives, varies or suspends an order, injunction or arrangement under section 68R, that revival, variation or suspension ceases to have effect at the earlier of:

                     (a)  the time the interim order stops being in force; and

                     (b)  the end of the period of 21 days starting when the interim order was made.

             (2)  No appeal lies in relation to the revival, variation or suspension.


 

Division 12Proceedings and jurisdiction

Subdivision AWhat this Division does

69A  What this Division does

                   This Division deals with:

                     (a)  the institution of proceedings and procedure (Subdivision B); and

                     (b)  jurisdiction of courts (Subdivision C); and

                     (c)  presumptions of parentage (Subdivision D); and

                     (d)  parentage evidence (Subdivision E); and

                     (e)  the places and people to which this Part extends and applies (Subdivision F).

Subdivision BInstitution of proceedings and procedure

69B  Certain proceedings to be instituted only under this Part

             (1)  Proceedings that may be instituted under this Part must not, after the commencement of this section, be instituted otherwise than under this Part.

             (2)  Subsection (1) does not apply in relation to the institution of proceedings under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

69C  Who may institute proceedings

             (1)  Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.

             (2)  Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:

                     (a)  either or both of the child’s parents; or

                     (b)  the child; or

                     (c)  a grandparent of the child; or

                     (d)  any other person concerned with the care, welfare or development of the child.

69D  Institution of maintenance proceedings by authorised authority or person

             (1)  The regulations may make provision with respect to authorising:

                     (a)  a specified authority of the Commonwealth or of a State or Territory; or

                     (b)  the person from time to time holding or acting in a specified office established under a law of the Commonwealth or of a State or Territory;

to institute and conduct, on behalf of a child, in the authority’s or person’s discretion, proceedings with respect to the maintenance of the child.

             (2)  Proceedings instituted on behalf of a child under regulations covered by subsection (1) are taken, for the purposes of section 69C and the provisions referred to in it, to have been instituted by the child.

69E  Child or parent to be present in Australia etc.

             (1)  Proceedings may be instituted under this Act in relation to a child only if:

                     (a)  the child is present in Australia on the relevant day (as defined in subsection (2)); or

                     (b)  the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

                     (c)  a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

                     (d)  a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

                     (e)  it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

             (2)  In this section:

relevant day, in relation to proceedings, means:

                     (a)  if the application instituting the proceedings is filed in a court—the day on which the application is filed; or

                     (b)  in any other case—the day on which the application instituting the proceedings is made.

Note:          Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

69F  Applicant may be in contempt

                   A court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court having jurisdiction under this Act.

Subdivision CJurisdiction of courts

69G  Interpretation

                   In this Subdivision:

matters arising under this Part includes proceedings under Division 9 or section 68S.

69H  Jurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Magistrates Court

             (1)  Jurisdiction is conferred on the Family Court in relation to matters arising under this Part.

             (2)  Each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Part.

             (3)  Subject to section 69K, jurisdiction is conferred on the Supreme Court of the Northern Territory in relation to matters arising under this Part.

             (4)  Jurisdiction is conferred on the Federal Magistrates Court in relation to matters arising under this Part (other than proceedings for leave under section 60G).

69J  Jurisdiction of courts of summary jurisdiction

             (1)  Subject to subsection (5), each court of summary jurisdiction of each State is invested with federal jurisdiction in relation to matters arising under this Part (other than proceedings for leave under section 60G).

Note:          Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

             (2)  Subject to subsection (5) and section 69K, jurisdiction is conferred on each court of summary jurisdiction of each Territory in relation to matters arising under this Part (other than proceedings for leave under section 60G).

             (3)  The Governor‑General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.

             (4)  Without limiting the generality of subsection (3), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:

                     (a)  proceedings of specified classes;

                     (b)  the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;

                     (c)  the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.

             (5)  A court of summary jurisdiction must not hear and determine proceedings under this Part otherwise than in accordance with any Proclamation in force under subsection (3).

             (6)  The Governor‑General may, by Proclamation, declare that a Proclamation under subsection (3) is revoked on and from a specified day.

             (7)  If, under subsection (6), the Governor‑General declares that a Proclamation under subsection (3) is revoked:

                     (a)  this Part (including subsection (3)) has effect as if the revoked Proclamation had not been made; but

                     (b)  the effect of the revoked Proclamation on the jurisdiction of courts before the specified day is not affected.

69K  Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory

                   A court of a Territory must not hear or determine proceedings under this Part unless at least one of the parties to the proceedings is ordinarily resident in the Territory when the proceedings are instituted or are transferred to the court.

69L  Jurisdiction in relation to transferred matters under other Commonwealth laws

                   If proceedings in relation to a matter arising under a law of the Commonwealth are transferred under this Act to a court that has jurisdiction conferred on or invested in it by this Division, the jurisdiction so conferred on or invested in the court includes jurisdiction in relation to that matter.

69M  Jurisdiction is additional to other jurisdiction

                   The jurisdiction conferred on or invested in a court by this Division is in addition to any jurisdiction conferred on or invested in the court apart from this Division.

69N  Transfer of proceedings from courts of summary jurisdiction in certain cases

             (1)  This section applies if:

                     (a)  proceedings for a parenting order (other than a child maintenance order) are instituted in a court of summary jurisdiction (other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia); and

                     (b)  the respondent, in answer to the application by which the proceedings were instituted, seeks an order different from that sought in the application.

             (2)  The court must, before going on to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to:

                     (a)  the Family Court; or

                     (b)  a Family Court of a State; or

                     (c)  the Supreme Court of the Northern Territory; or

                     (d)  the Federal Magistrates Court.

             (3)  If the parties do not consent to the court hearing and determining the proceedings, the court must transfer the proceedings to:

                     (a)  the Family Court; or

                     (b)  a Family Court of a State; or

                     (c)  the Supreme Court of the Northern Territory; or

                     (d)  the Federal Magistrates Court.

             (4)  Before transferring the proceedings, the court may make such orders (including an order under subsection 62F(2)) as it considers necessary pending the disposal of the proceedings by the court to which they are transferred.

             (5)  If the parties consent to the court hearing and determining the proceedings:

                     (a)  a party is not entitled, without leave of the court, subsequently to object to the proceedings being heard and determined by the court; but

                     (b)  the court may, on its own initiative, transfer the proceedings to:

                              (i)  the Family Court; or

                             (ii)  a Family Court of a State; or

                            (iii)  the Supreme Court of the Northern Territory; or

                            (iv)  the Federal Magistrates Court.

             (6)  If the court subsequently gives leave to a party to object to the proceedings being heard and determined by the court, the court must transfer the proceedings to:

                     (a)  the Family Court; or

                     (b)  a Family Court of a State; or

                     (c)  the Supreme Court of the Northern Territory; or

                     (d)  the Federal Magistrates Court.

             (7)  A court to which proceedings are transferred must deal with the proceedings as if they had been instituted in the court.

             (8)  Failure by a court of summary jurisdiction to comply with this section in relation to proceedings does not invalidate any order made by the court in the proceedings.

             (9)  Subsection (8) does not affect the duty of a court of summary jurisdiction to comply with this section.

Subdivision DPresumptions of parentage

69P  Presumptions of parentage arising from marriage

             (1)  If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.

             (2)  If:

                     (a)  at a particular time:

                              (i)  a marriage to which a woman is a party is ended by death; or

                             (ii)  a purported marriage to which a woman is a party is annulled; and

                     (b)  a child is born to the woman within 44 weeks after that time;

the child is presumed to be a child of the woman and the husband or purported husband.

             (3)  If:

                     (a)  the parties to a marriage separated at any time; and

                     (b)  after the separation, they resumed cohabitation on one occasion; and

                     (c)  within 3 months after the resumption of cohabitation, they separated again and lived separately and apart; and

                     (d)  a child is born to the woman within 44 weeks after the end of the cohabitation, but after the divorce of the parties;

the child is presumed to be a child of the woman and the husband.

69Q  Presumption of paternity arising from cohabitation

                   If:

                     (a)  a child is born to a woman; and

                     (b)  at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married;

the child is presumed to be a child of the man.

69R  Presumption of parentage arising from registration of birth

                   If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.

69S  Presumptions of parentage arising from findings of courts

             (1)  If:

                     (a)  during the lifetime of a particular person, a prescribed court (other than a court of a prescribed overseas jurisdiction) has:

                              (i)  found expressly that the person is a parent of a particular child; or

                             (ii)  made a finding that it could not have made unless the person was a parent of a particular child; and

                     (b)  the finding has not been altered, set aside or reversed;

the person is conclusively presumed to be a parent of the child.

          (1A)  If:

                     (a)  during the lifetime of a particular person, a court of a reciprocating jurisdiction within the meaning of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the regulations has:

                              (i)  found expressly that the person is a parent of a particular child; or

                             (ii)  made a finding that it could not have made unless the person was a parent of a particular child; and

                     (b)  the finding has not been altered, set aside or reversed;

the person is presumed to be a parent of the child.

             (2)  If:

                     (a)  after the death of a particular person, a prescribed court has:

                              (i)  found expressly that the person was a parent of a particular child; or

                             (ii)  made a finding that it could not have made unless the person was a parent of a particular child; and

                     (b)  the finding has not been altered, set aside or reversed;

the person is presumed to have been a parent of the child.

             (3)  In this section:

prescribed court means a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction.

69T  Presumption of paternity arising from acknowledgments

                   If:

                     (a)  under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, a man has executed an instrument acknowledging that he is the father of a specified child; and

                     (b)  the instrument has not been annulled or otherwise set aside;

the man is presumed to be the father of the child.

69U  Rebuttal of presumptions etc.

             (1)  A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.

             (2)  Where:

                     (a)  2 or more presumptions arising under this Subdivision are relevant in any proceedings; and

                     (b)  those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings;

the presumption that appears to the court to be the more or most likely to be correct prevails.

             (3)  This section does not apply to a presumption arising under subsection 69S(1).

Subdivision EParentage evidence

69V  Evidence of parentage

                   If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question.

69VA  Declarations of parentage

                   As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

69W  Orders for carrying out of parentage testing procedures

             (1)  If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.

             (2)  A court may make a parentage testing order:

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  a party to the proceedings; or

                             (ii)  an independent children’s lawyer representing the child’s interests under an order made under section 68L.

             (3)  A parentage testing order may be made in relation to:

                     (a)  the child; or

                     (b)  a person known to be the mother of the child; or

                     (c)  any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

             (4)  A parentage testing order may be made subject to terms and conditions.

             (5)  This section does not affect the generality of section 69V.

69X  Orders associated with parentage testing orders

             (1)  If a court makes a parentage testing order, it may also make orders under subsection (2) or (4).

             (2)  The court may make such orders as it considers necessary or desirable:

                     (a)  to enable the parentage testing procedure to be carried out; or

                     (b)  to make the parentage testing procedure more effective or reliable.

             (3)  Some examples of the kinds of orders the court may make under subsection (2) are as follows:

                     (a)  an order requiring a person to submit to a medical procedure;

                     (b)  an order requiring a person to provide a bodily sample;

                     (c)  an order requiring a person to provide information relevant to the person’s medical or family history.

             (4)  The court may make such orders as it considers just in relation to costs incurred in relation to:

                     (a)  the carrying out of the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or

                     (b)  the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure.

69XA  Matters related particularly to parentage testing for purposes of an international agreement or arrangement

             (1)  The Secretary may commence or continue proceedings under section 69W if it is necessary or convenient to do so for the purposes of an international agreement or arrangement.

             (2)  Despite section 69X, a court must order that the costs of any parentage testing procedure ordered in proceedings mentioned in subsection (1) are payable by a party to those proceedings who:

                     (a)  contested the making of a maintenance assessment or court order for child support on the ground of not being the parent of the child; or

                     (b)  contested the enforcement of an overseas maintenance order, agreement or assessment on the ground of not being the parent of the child.

             (3)  If a parentage testing procedure that is ordered by a court in proceedings mentioned in subsection (1) establishes that a party contesting parentage in those proceedings was not a parent of the child, the court may order that the costs of the procedure are payable by the Secretary.

             (4)  A report in relation to information obtained as a result of a parentage testing procedure, received by the Secretary from an administrative or judicial authority in a reciprocating jurisdiction within the meaning of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the regulations, may be received in evidence in any proceedings under this Act.

69Y  Orders directed to persons 18 or over

             (1)  If a person who is 18 or over contravenes a parentage testing order or an order under section 69X, the person is not liable to any penalty in relation to the contravention.

             (2)  The court may draw such inferences from the contravention as appear just in the circumstances.

69Z  Orders directed to children under 18

             (1)  This section applies if a parentage testing order, or an order under section 69X, requires a medical procedure or other act to be carried out in relation to a child who is under 18.

             (2)  The procedure or act must not be carried out in relation to the child under the order without the consent of:

                     (a)  a parent of the child; or

                     (b)  a guardian of the child; or

                     (c)  a person who, under a parenting order, has responsibility for the child’s long‑term or day‑to‑day care, welfare and development.

             (3)  The court may draw such inferences from a failure or refusal to consent as mentioned in subsection (2) as appear just in the circumstances.

69ZA  No liability if parent etc. consents

             (1)  A person who carries out, or who assists in the carrying out of, a medical procedure or other act in relation to a child under a parentage testing order is not liable to any civil or criminal action in relation to the proper carrying out of the procedure or act if it is carried out with the consent of:

                     (a)  a parent of the child; or

                     (b)  a guardian of the child; or

                     (c)  a person who, under a parenting order, has responsibility for the child’s long‑term or day‑to‑day care, welfare and development.

             (2)  Subsection (1) does not affect any liability of a person for an act done negligently, or negligently omitted to be done, in relation to the carrying out of the medical procedure or act.

69ZB  Regulations about carrying out, and reporting on, parentage testing procedures

                   The regulations may make provision relating to:

                     (a)  the carrying out of parentage testing procedures under parentage testing orders; and

                     (b)  the preparation of reports relating to the information obtained as the result of carrying out such procedures.

69ZC  Reports of information obtained may be received in evidence

             (1)  A report made in accordance with regulations covered by paragraph 69ZB(b) may be received in evidence in any proceedings under this Act.

             (2)  If, under subsection (1), a report is received in evidence in proceedings under this Act, the court may make an order requiring the person who made the report, or any person whose evidence may be relevant in relation to the report, to appear before the court and give evidence in relation to the report.

             (3)  A court may make an order under subsection (2):

                     (a)  on its own initiative; or

                     (b)  on the application of:

                              (i)  a party to the proceedings; or

                             (ii)  an independent children’s lawyer representing the relevant child’s interests under an order made under section 68L.

69ZD  Parentage testing for purposes of international maintenance agreements

                   For the purpose of the carrying out of any of Australia’s obligations under:

                     (a)  an arrangement with a reciprocating jurisdiction, or with a jurisdiction with restricted reciprocity, within the meaning of section 110; or

                     (b)  the Convention referred to in section 111; or

                    (ba)  the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at The Hague on 2 October 1973; or

                    (bb)  the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000; or

                    (bc)  the Agreement between the Government of the United States of America and the Government of Australia for the Enforcement of Maintenance (Support) Obligations, which was concluded and entered into force on 12 December 2002;

the regulations may make provision:

                     (c)  conferring jurisdiction on a court to make an order requiring a parentage testing procedure to be carried out at the request of:

                              (i)  a court or authority in a foreign country; or

                             (ii)  the Secretary to the Department, or a person authorised by the Secretary; or

                     (d)  for the carrying out of a parentage testing procedure, and the preparation of a report in relation to the information obtained as a result of the carrying out of the procedure; or

                     (e)  for the admissibility in legal proceedings of a report, in relation to the information obtained as a result of the carrying out of a parentage testing procedure, received from an authority in a foreign country;

whether or not there is any express provision in the relevant arrangement or in the Convention authorising the carrying out of a parentage testing procedure.

Subdivision FExtension, application and additional operation of Part

69ZE  Extension of Part to the States

             (1)  Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.

             (2)  Subject to this section and section 69ZF, this Part extends to Western Australia if:

                     (a)  the Parliament of Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:

                              (i)  the maintenance of children and the payment of expenses in relation to children or child bearing;

                             (ii)  parental responsibility for children; or

                     (b)  Western Australia adopts this Part.

             (3)  This Part extends to a State under subsection (1) or (2) only for so long as there is in force:

                     (a)  an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:

                              (i)  the matters referred to in subparagraphs (2)(a)(i) and (ii); or

                             (ii)  matters that include, or are included in, those matters; or

                     (b)  a law of the State adopting this Part.

             (4)  This Part extends to a State at any time under subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to:

                     (a)  the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or

                     (b)  matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters.

69ZF  Unless declaration in force, Part’s extension to a State has effect subject to modifications

             (1)  The Governor‑General may, by Proclamation, declare that all the child welfare law provisions of this Part extend to a specified State.

             (2)  Despite anything in section 69ZE, if no declaration under subsection (1) is in force in relation to a particular State, this Part, as it extends to that State because of section 69ZE, has effect as if:

                     (a)  subsection 66F(2) were omitted; and

                     (b)  subsections 69ZE(1) and (2) were amended by omitting “and section 69ZF”; and

                     (c)  section 69ZF were omitted; and

                     (d)  paragraph 69ZK(1)(b) were omitted; and

                     (e)  subsection 69ZK(2) were amended by adding at the end the following word and paragraphs:

                                  “; or (d)  the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child; or

                                         (e)  an order of the kind referred to in paragraph (d).”.

             (3)  A Proclamation that was in force in relation to a State under subsection 60E(6) of this Act as in force before the commencement of this section has effect, after that commencement, as if it were a Proclamation under subsection (1) of this section.

Note:          This section preserves the effect of subsections 60E(6) and (7) of this Act as in force before the commencement of this section. Under those subsections, the amendments of this Act made by the Law and Justice Legislation Amendment Act 1992 did not extend to a State unless a Proclamation was in force in relation to the State.

69ZG  Application of Part in, and in relation to, Territories

                   This Part applies in and in relation to the Territories.

69ZH  Additional application of Part

             (1)  Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.

             (2)  By virtue of this subsection, Subdivision BA of Division 1, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:

                     (a)  each reference to a child were, by express provision, confined to a child of a marriage; and

                     (b)  each reference to the parents of the child were, by express provision, confined to the parties to the marriage.

             (3)  The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage, including (but not being limited to):

                     (a)  the duties, powers, responsibilities and authority of those parties in relation to:

                              (i)  the maintenance of the child and the payment of expenses in relation to the child; or

                             (ii)  whom the child lives with, whom the child spends time with and other aspects of the care, welfare and development of the child; and

                     (b)  other aspects of duties, powers, responsibilities and authority in relation to the child:

                              (i)  arising out of the marital relationship; or

                             (ii)  in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

                            (iii)  in relation to the divorce of the parties to that marriage, an annulment of that marriage or a legal separation of the parties to that marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104.

             (4)  By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor.

69ZJ  Additional jurisdiction of courts

                   In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters between residents of different States, being matters with respect to:

                     (a)  the maintenance of children and the payment of expenses in relation to children or child bearing; or

                     (b)  parental responsibility in relation to children.

69ZK  Child welfare laws not affected

             (1)  A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

                     (a)  the order is expressed to come into effect when the child ceases to be under that care; or

                     (b)  the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

             (2)  Nothing in this Act, and no decree under this Act, affects:

                     (a)  the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

                     (b)  any such order made or action taken; or

                     (c)  the operation of a child welfare law in relation to a child.

             (3)  If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first‑mentioned court may adjourn any proceedings before it that relate to the child.


 

Division 12APrinciples for conducting child‑related proceedings

Subdivision AProceedings to which this Division applies

69ZM  Proceedings to which this Division applies

             (1)  This Division applies to proceedings that are wholly under this Part.

             (2)  This Division also applies to proceedings that are partly under this Part:

                     (a)  to the extent that they are proceedings under this Part; and

                     (b)  if the parties to the proceedings consent—to the extent that they are not proceedings under this Part.

             (3)  This Division also applies to any other proceedings between the parties that involve the court exercising jurisdiction under this Act and that arise from the breakdown of the parties’ marital relationship, if the parties to the proceedings consent.

             (4)  Proceedings to which this Division applies are child‑related proceedings.

             (5)  Consent given for the purposes of paragraph (2)(b) or subsection (3) must be:

                     (a)  free from coercion; and

                     (b)  given in the form prescribed by the applicable Rules of Court.

             (6)  A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of paragraph (2)(b) or subsection (3).

Subdivision BPrinciples for conducting child‑related proceedings

69ZN  Principles for conducting child‑related proceedings

Application of the principles

             (1)  The court must give effect to the principles in this section:

                     (a)  in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

                     (b)  in making other decisions about the conduct of child‑related proceedings.

Failure to do so does not invalidate the proceedings or any order made in them.

             (2)  Regard is to be had to the principles in interpreting this Division.

Principle 1

             (3)  The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Principle 2

             (4)  The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

             (5)  The third principle is that the proceedings are to be conducted in a way that will safeguard:

                     (a)  the child concerned against family violence, child abuse and child neglect; and

                     (b)  the parties to the proceedings against family violence.

Principle 4

             (6)  The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

Principle 5

             (7)  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

69ZO  This Division also applies to proceedings in Chambers

                   A judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate, who is hearing child‑related proceedings in Chambers, has all of the duties and powers that a court has under this Division.

Note:          An order made in Chambers has the same effect as an order made in open court.

69ZP  Powers under this Division may be exercised on court’s own initiative

                   The court may exercise a power under this Division:

                     (a)  on the court’s own initiative; or

                     (b)  at the request of one or more of the parties to the proceedings.

Subdivision CDuties and powers related to giving effect to the principles

69ZQ  General duties

             (1)  In giving effect to the principles in section 69ZN, the court must:

                     (a)  decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and

                     (b)  decide the order in which the issues are to be decided; and

                     (c)  give directions or make orders about the timing of steps that are to be taken in the proceedings; and

                     (d)  in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and

                     (e)  make appropriate use of technology; and

                      (f)  if the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and

                     (g)  deal with as many aspects of the matter as it can on a single occasion; and

                     (h)  deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.

             (2)  Subsection (1) does not limit subsection 69ZN(1).

             (3)  A failure to comply with subsection (1) does not invalidate an order.

69ZR  Power to make determinations, findings and orders at any stage of proceedings

             (1)  If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

                     (a)  make a finding of fact in relation to the proceedings;

                     (b)  determine a matter arising out of the proceedings;

                     (c)  make an order in relation to an issue arising out of the proceedings.

Note:          For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

             (2)  Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.

             (3)  To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

69ZS  Use of family consultants

                   At any time during child‑related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings.

Note 1:       Family consultants have the functions described in section 11A. These include assisting and advising people involved in proceedings, and this assistance and advice may involve helping people to better understand the effect of things on the child concerned. Family consultants can also inform people about other services available to help them.

Note 2:       The court may also order parties to proceedings to attend appointments with a family consultant. See section 11F.

Subdivision DMatters relating to evidence

69ZT  Rules of evidence not to apply unless court decides

             (1)  These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:

                     (a)  Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;

Note:       Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

                     (b)  Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

                     (c)  Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

             (2)  The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

             (3)  Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

                     (a)  the court is satisfied that the circumstances are exceptional; and

                     (b)  the court has taken into account (in addition to any other matters the court thinks relevant):

                              (i)  the importance of the evidence in the proceedings; and

                             (ii)  the nature of the subject matter of the proceedings; and

                            (iii)  the probative value of the evidence; and

                            (iv)  the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

             (4)  If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

             (5)  Subsection (1) does not revive the operation of:

                     (a)  a rule of common law; or

                     (b)  a law of a State or a Territory;

that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

69ZU  Evidence of family consultants

                   The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.

69ZV  Evidence of children

             (1)  This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child‑related proceedings.

             (2)  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 in the proceedings solely because of the law against hearsay.

             (3)  The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).

             (4)  This section applies despite any other Act or rule of law.

             (5)  In this section:

child means a person under 18.

representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.

69ZW  Evidence relating to child abuse or family violence

             (1)  The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.

             (2)  The documents or information specified in the order must be documents recording, or information about, one or more of these:

                     (a)  any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

                     (b)  any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

                     (c)  any reports commissioned by the agency in the course of investigating a notification.

             (3)  Nothing in the order is to be taken to require the agency to provide the court with:

                     (a)  documents or information not in the possession or control of the agency; or

                     (b)  documents or information that include the identity of the person who made a notification.

             (4)  A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.

             (5)  The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.

             (6)  Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:

                     (a)  the person consents to the disclosure; or

                     (b)  the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.

             (7)  Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:

                     (a)  is notified about the intended disclosure; and

                     (b)  is given an opportunity to respond.

69ZX  Court’s general duties and powers relating to evidence

             (1)  In giving effect to the principles in section 69ZN, the court may:

                     (a)  give directions or make orders about the matters in relation to which the parties are to present evidence; and

                     (b)  give directions or make orders about who is to give evidence in relation to each remaining issue; and

                     (c)  give directions or make orders about how particular evidence is to be given; and

                     (d)  if the court considers that expert evidence is required—give directions or make orders about:

                              (i)  the matters in relation to which an expert is to provide evidence; and

                             (ii)  the number of experts who may provide evidence in relation to a matter; and

                            (iii)  how an expert is to provide the expert’s evidence; and

                     (e)  ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

             (2)  Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:

                     (a)  about the use of written submissions; or

                     (b)  about the length of written submissions; or

                     (c)  limiting the time for oral argument; or

                     (d)  limiting the time for the giving of evidence; or

                     (e)  that particular evidence is to be given orally; or

                      (f)  that particular evidence is to be given by affidavit; or

                     (g)  that evidence in relation to a particular matter not be presented by a party; or

                     (h)  that evidence of a particular kind not be presented by a party; or

                      (i)  limiting, or not allowing, cross‑examination of a particular witness; or

                      (j)  limiting the number of witnesses who are to give evidence in the proceedings.

             (3)  The court may, in child‑related proceedings:

                     (a)  receive into evidence the transcript of evidence in any other proceedings before:

                              (i)  the court; or

                             (ii)  another court; or

                            (iii)  a tribunal;

                            and draw any conclusions of fact from that transcript that it thinks proper; and

                     (b)  adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).

Note:          This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.

             (4)  The court must not, in proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration, direct under:

                     (a)  subsection 126B(1) of the Evidence Act 1995; or

                     (b)  a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations;