Federal Register of Legislation - Australian Government

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Act No. 147 of 2010 as made
An Act to validate certain parenting orders and amend the Family Law Act 1975, and for related purposes
Administered by: Attorney-General's
Originating Bill: Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010
Registered 21 Dec 2010
Date of Assent 16 Dec 2010
Table of contents.

 

 

 

 

 

 

Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010

 

No. 147, 2010

 

 

 

 

 

An Act to validate certain parenting orders and amend the Family Law Act 1975, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Schedule(s)......................................................................................... 2

Schedule 1—Validation of certain parenting orders                                        3

Schedule 2—Amendments                                                                                              10

Family Law Act 1975                                                                                                10

 


 

 

Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010

No. 147, 2010

 

 

 

An Act to validate certain parenting orders and amend the Family Law Act 1975, and for related purposes

[Assented to 16 December 2010]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010.

2  Commencement

                   This Act commences on the day after this Act receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Validation of certain parenting orders

  

1  Interpretation

(1)       In this Schedule:

affected order has the meaning given by subitems 2(1) and (3).

consider has the same meaning as in section 65DAA of the Family Law Act 1975.

court, except in subitems 4(2) and (3), means a court exercising jurisdiction in relation to a matter arising under the Family Law Act 1975 or this Act.

enforceable includes able to be dealt with by proceedings under Division 13A of Part VII of the Family Law Act 1975 relating to a contravention of an order.

enforcement law has the meaning given by subitem 4(3).

liability includes a duty, responsibility or obligation.

Registrar means:

                     (a)  a Registrar within the meaning of the Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 37A of the Family Law Act 1975; or

                     (b)  a Judicial Registrar appointed under section 26A of the Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 26B of that Act; or

                     (c)  a Registrar within the meaning of the Federal Magistrates Act 1999, to the extent that his or her powers were or are exercised:

                              (i)  under section 102 of that Act; or

                             (ii)  under a delegation of the Federal Magistrates Court’s powers under Rules of Court made under section 103 of that Act.

required matters, for an order, has the meaning given by subitem 2(2).

right includes an interest, status, power or authority.

(2)       Any other expression has the same meaning in this Schedule as in the Family Law Act 1975.

2  Meaning of affected order etc.

(1)       An affected order is, subject to subitem (3), an order (including an interim order) in relation to a child:

                     (a)  that was made or purportedly made by a court or Registrar under section 65D of the Family Law Act 1975:

                              (i)  on or after the commencement of Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006; and

                             (ii)  before the commencement of this item; and

Note:       Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced on 1 July 2006.

                     (b)  that:

                              (i)  provides for the child’s parents to have equal shared parental responsibility for the child; or

                             (ii)  was made on the basis that another order provides for the child’s parents to have equal shared parental responsibility for the child; and

                     (c)  in relation to which the court or Registrar did not consider the required matters for the order.

(2)       The required matters for the order are:

                     (a)  if the order was made or purportedly made without the consent of all the parties to the proceedings:

                              (i)  in any case—whether the child spending equal time with each of the parents was reasonably practicable; and

                             (ii)  if the order does not provide for the child to spend equal time with each of the parents—whether the child spending substantial and significant time with each of the parents was reasonably practicable; or

                     (b)  if the order was made or purportedly made with the consent of all the parties to the proceedings:

                              (i)  in any case—the matters referred to in paragraphs 65DAA(1)(a) to (c) of the Family Law Act 1975; and

                             (ii)  if the order does not provide for the child to spend equal time with each of the parents—the matters referred to in paragraphs 65DAA(2)(c) to (e) of that Act.

(3)       If a court or Registrar has:

                     (a)  varied, revoked, set aside, revived or suspended an order to which paragraphs (1)(a), (b) and (c) apply; or

                     (b)  purported to vary, revoke, set aside, revive or suspend such an order;

the affected order is that order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

3  Rights and liabilities under affected orders

(1)       Subject to item 5, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if each affected order were an order in relation to which the court or Registrar making the order had considered the required matters for the order.

(2)       A right or liability conferred, imposed or affected by subitem (1):

                     (a)  is exercisable or enforceable; and

                     (b)  is to be regarded as always having been exercisable or enforceable;

as if it were a right or liability conferred, imposed or affected by an order made by the court or Registrar in or in relation to the proceedings for the order.

(3)       The rights and liabilities conferred, imposed or affected by subitem (1) include (but are not limited to) the right of a person who was a party to the proceeding or purported proceeding in which the affected order was made to:

                     (a)  appeal against the order; or

                     (b)  apply for review in relation to the order;

as if the order were an order made under the Family Law Act 1975.

(4)       Without limiting the grounds on which the person may appeal against the order or apply for review in relation to the order, the person may do so on the ground that the court or Registrar that made the order failed to consider the required matters for the order.

(5)       To avoid doubt, this item does not affect the application of section 60CA of the Family Law Act 1975 in relation to an affected order.

Note:       Section 60CA of the Family Law Act 1975 requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

4  Effect of things done etc. under or in relation to rights and liabilities

(1)       Any act or thing done or omitted to be done before, at or after the commencement of this Schedule in relation to a right or liability conferred, imposed or affected by item 3:

                     (a)  has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and

                     (b)  is taken always to have had the same effect, and to have given rise to the same consequences, for the purposes of any written or other law;

as if it were done or omitted to be done to give effect to, or under the authority of or in reliance on, an order made under section 65D of the Family Law Act 1975.

(2)       However, if, before the commencement of this Schedule, a court purported to convict a person of an offence against an enforcement law on the basis that an affected order was a valid order, nothing in this item is to be taken to validate or confirm that conviction.

(3)       An enforcement law is a provision of a law of the Commonwealth, other than a law relating to contempt of court, that sets out a consequence for a person if the person:

                     (a)  contravenes; or

                     (b)  acts in a specified way while there is in force;

an order, or a particular kind of order, made by a court exercising federal jurisdiction (whether or not the provision also applies to other orders of courts).

5  Circumstances in which item 3 ceases to have effect

If:

                     (a)  before the commencement of this Schedule, a court or Registrar made an order (the new order) on the basis that an affected order was or might be invalid; and

                     (b)  the new order:

                              (i)  conferred or imposed rights or liabilities similar to or different from those purportedly conferred or imposed by the affected order; or

                             (ii)  affected rights or liabilities in the same way as they were purportedly affected by the affected order or in a different way;

item 3 is to be regarded as having ceased to have effect in respect of the affected order when the new order took effect.

6  Powers in relation to declared rights and liabilities

(1)       A court or Registrar may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by item 3 (an item 3 right or liability) as if it were a right or liability conferred, imposed or affected by an order that was made under section 65D of the Family Law Act 1975.

(2)       In addition to the powers of a court or Registrar under subitem (1), the court or Registrar also has power to make an order achieving any other result that could have been achieved if:

                     (a)  the affected order had been an order that was made under section 65D of the Family Law Act 1975; and

                     (b)  the court or Registrar had been considering whether:

                              (i)  to vary, revoke, set aside, revive or suspend that order; or

                             (ii)  to extend the time for the doing of anything in relation to the proceedings for that order; or

                            (iii)  to grant a stay of proceedings for that order.

(3)       This item has effect, in relation to varying, revoking, setting aside, reviving or suspending an item 3 right or liability, subject to the same conditions and limitations as apply under the Family Law Act 1975 in relation to varying, revoking, setting aside, reviving or suspending an order that was made under section 65D of the Family Law Act 1975.

(4)       Despite subitem (3), if the affected order was made without the consent of the parties, the court or Registrar does not need to be satisfied, before varying, revoking, setting aside, reviving or suspending an item 3 right or liability, that there are circumstances justifying reconsideration of how the best interests of the child should be best served.

(5)       Any of the following:

                     (a)  an order under this item by the Supreme Court of the Northern Territory, or the Family Court of Western Australia;

                     (b)  a decree or decision of a Judge of the Supreme Court of the Northern Territory, or the Family Court of Western Australia, rejecting an application that he or she disqualify himself or herself from further hearing a matter arising under subitem (1);

is taken, for the purposes of section 94 of the Family Law Act 1975, to be a decree of that court, or a decree or decision of that Judge, exercising original or appellate jurisdiction under that Act.

(6)       Any of the following:

                     (a)  an order under this item by the Federal Magistrates Court;

                     (b)  a decree or decision of a Federal Magistrate rejecting an application that he or she disqualify himself or herself from further hearing a matter arising under subitem (1);

                     (c)  an order under this item by the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia;

                     (d)  a decree or decision of a Family Law Magistrate of Western Australia rejecting an application that he or she disqualify himself or herself from further hearing a matter arising under subitem (1);

is taken, for the purposes of section 94AAA of the Family Law Act 1975, to be a decree of that court, or a decree or decision of that magistrate, exercising original jurisdiction under that Act.

(7)       An order under this item by a court of summary jurisdiction of a State or Territory (other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia) is taken, for the purposes of section 96 of the Family Law Act 1975, to be a decree of that court exercising jurisdiction under that Act.

7  Proceedings for contempt etc.

If (whether before, at or after the commencement of this Schedule) a person has:

                     (a)  interfered with a right conferred or affected by item 3 in relation to an affected order of the Federal Magistrates Court, the Family Court of Western Australia, a court of summary jurisdiction or a Registrar; or

                     (b)  failed to satisfy or comply with a liability imposed or affected by item 3 in relation to an affected order of the Federal Magistrates Court, the Family Court of Western Australia, a court of summary jurisdiction or a Registrar;

the interference or failure is, and is taken always to have been, a matter that can be dealt with in the same manner as if the interference or failure had been in relation to a right conferred or affected, or a liability imposed or affected, by an order validly made under section 65D of the Family Law Act 1975.

8  Evidence

The court record, or a copy of the court record, of an affected order may be adduced in evidence to show the existence, nature and extent of each right or liability conferred, imposed or affected by item 3.

9  Schedule does not apply to certain orders

Nothing in this Schedule applies to an order declared or held to be invalid, or to have been made without power, by a court before the commencement of this Schedule.

10  Jurisdiction of courts

(1)       Subject to subitem (3), jurisdiction is conferred on the Family Court, the Federal Magistrates Court and the Supreme Court of the Northern Territory, and the Family Court of Western Australia is invested with federal jurisdiction, with respect to matters arising under this Schedule.

(2)       Subject to subitem (3), 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 Schedule.

(3)       A court only has jurisdiction with respect to a matter arising under this Schedule if it has jurisdiction with respect to an equivalent matter arising under the Family Law Act 1975. The court’s jurisdiction under this Schedule is subject to the same conditions and limitations as would apply to it in dealing with the equivalent matter.


 

Schedule 2Amendments

  

Family Law Act 1975

1  Subsections 65DAA(1) and (2)

Omit “If”, substitute “Subject to subsection (6), if”.

2  At the end of section 65DAA (after the notes)

Add:

Consent orders

             (6)  If:

                     (a)  the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and

                     (b)  the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;

the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).

             (7)  To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.

Note:          Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

3  Application of amendments

The amendments made by this Schedule apply to any order made after the commencement of this item, whether proceedings were initiated, or an application for the order was made, before, at or after that commencement.


 

[Minister’s second reading speech made in—

House of Representatives on 17 November 2010

Senate on 24 November 2010]

(269/10)