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
4AA...... De facto relationships........................................................................ 27
4AB...... Definition of family violence etc........................................................ 29
4A......... Third party proceedings to set aside financial agreement................... 30
4B......... Third party proceedings to set aside Part VIIIAB financial agreement 31
4C......... Meaning of proceeds of crime authority........................................... 33
5............ Debtor subject to a personal insolvency agreement........................... 34
6............ Polygamous marriages...................................................................... 35
7............ Extension of Act to certain Territories............................................... 35
7A......... Application of the Criminal Code..................................................... 35
8............ Supersession of existing laws........................................................... 35
9............ Transitional....................................................................................... 36
Part IA—Protection of names 39
9A......... Use of protected names and symbols................................................ 39
Part II—Non‑court based family services 41
Division 1—Accreditation of family counsellors, family dispute resolution practitioners and other family service providers 41
10A....... Accreditation Rules........................................................................... 41
Division 2—Family counselling 43
10B....... Definition of family counselling........................................................ 43
10C....... Definition of family counsellor......................................................... 43
10D....... Confidentiality of communications in family counselling.................. 44
10E........ Admissibility of communications in family counselling and in referrals from family counselling 45
Division 3—Family dispute resolution 47
10F........ Definition of family dispute resolution.............................................. 47
10G....... Definition of family dispute resolution practitioner.......................... 47
10H....... Confidentiality of communications in family dispute resolution........ 47
10J........ Admissibility of communications in family dispute resolution and in referrals from family dispute resolution 49
10K....... Family dispute resolution practitioners must comply with regulations 50
Division 4—Arbitration 51
10L........ Definition of arbitration................................................................... 51
10M...... Definition of arbitrator..................................................................... 51
10N....... Arbitrators may charge fees for their services................................... 51
10P........ Immunity of arbitrators..................................................................... 52
Part III—Family consultants 53
Division 1—About family consultants 53
11A....... Functions of family consultants........................................................ 53
11B....... Definition of family consultant.......................................................... 53
11C....... Admissibility of communications with family consultants and referrals from family consultants 54
11D....... Immunity of family consultants......................................................... 54
Division 2—Courts’ use of family consultants 55
11E........ Courts to consider seeking advice from family consultants............... 55
11F........ Court may order parties to attend, or arrange for child to attend, appointments with a family consultant 55
11G....... Consequences of failure to comply with order under section 11F..... 56
Part IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services 58
Division 1—Introduction 58
12A....... Objects of this Part............................................................................ 58
Division 2—Kind of information to be provided 59
12B....... Prescribed information about non‑court based family services and court’s processes and services 59
12C....... Prescribed information about reconciliation...................................... 59
12D....... Prescribed information about Part VII proceedings.......................... 59
Division 3—Who must provide information, and when 60
12E........ Obligations on legal practitioners...................................................... 60
12F........ Obligations on principal executive officers of courts........................ 60
12G....... Obligations on family counsellors, family dispute resolution practitioners and arbitrators 61
Part IIIB—Court’s powers in relation to court and non‑court based family services 62
Division 1—Introduction 62
13A....... Objects of this Part............................................................................ 62
Division 2—Help with reconciliation 63
13B....... Court to accommodate possible reconciliations................................. 63
Division 3—Referrals to family counselling, family dispute resolution and other family services 64
13C....... Court may refer parties to family counselling, family dispute resolution and other family services 64
13D....... Consequences of failure to comply with order under section 13C.... 65
Division 4—Court’s role in relation to arbitration of disputes 66
13E........ Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration 66
13F........ Court may make orders to facilitate arbitration of certain disputes.... 66
13G....... Family Court and Federal Magistrates Court may determine questions of law referred by arbitrator 66
13H....... Awards made in arbitration may be registered in court..................... 67
13J........ Family Court or Federal Magistrates Court can review registered awards 67
13K....... Family Court and Federal Magistrates Court may set aside registered awards 68
Part IV—The Family Court of Australia 69
Division 1—Interpretation 69
20.......... Interpretation..................................................................................... 69
Division 2—The Family Court of Australia 70
21.......... Creation of Court.............................................................................. 70
21A....... Divisions of Court............................................................................ 70
21B....... Arrangement of business of Court.................................................... 70
Division 3—Judges 72
22.......... Appointment, removal and resignation of Judges............................. 72
23.......... Seniority............................................................................................ 74
24.......... Absence or illness of Chief Judge..................................................... 76
25.......... Salary and allowances....................................................................... 76
26.......... Oath or affirmation of allegiance and office...................................... 76
Division 4—Judicial Registrars 78
26A....... Judicial Registrars............................................................................. 78
26B....... Powers of Judicial Registrars............................................................ 78
26C....... Review of decisions of Judicial Registrars........................................ 79
26D....... Exercise of delegated powers by Court............................................. 80
26E........ Application of the Legislative Instruments Act 2003 to rules of court 80
26F........ Independence of Judicial Registrars.................................................. 81
26G....... Judicial Registrars hold office on full time or part time basis............ 81
26H....... Qualifications for appointment etc..................................................... 81
26I......... Term of office................................................................................... 81
26J........ Remuneration and allowances........................................................... 81
26JA..... Leave of absence............................................................................... 82
26K....... Resignation....................................................................................... 82
26L........ Termination of appointment.............................................................. 82
26M...... Oath or affirmation of office............................................................. 82
26N....... Terms and conditions of appointment not provided for by Act......... 83
Division 5—Jurisdiction and exercise of jurisdiction 84
27.......... Place of sitting................................................................................... 84
27A....... Change of venue............................................................................... 84
28.......... Exercise of jurisdiction...................................................................... 84
30.......... Court divided in opinion................................................................... 85
31.......... Original jurisdiction of Family Court................................................ 86
33.......... Jurisdiction in associated matters...................................................... 86
33A....... Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Magistrates Court.......................................................................................................... 87
33B....... Discretionary transfer of proceedings to the Federal Magistrates Court 87
33C....... Mandatory transfer of proceedings to the Federal Magistrates Court 89
34.......... Issue of certain writs etc.................................................................... 90
35.......... Contempt of court............................................................................. 90
Division 6—Registries and officers 91
36.......... Registries.......................................................................................... 91
37.......... Officers of Court............................................................................... 91
37A....... Delegation of powers to Registrars................................................... 91
37AA.... Delegation to Registrars of powers exercisable by court as constituted in a particular way 95
37B....... Independence of Registrars............................................................... 96
37C....... Oath or affirmation of office............................................................. 97
Division 7—Practice and procedure 98
38.......... Practice and procedure...................................................................... 98
Part IVA—Management of the Court 99
Division 1—Management responsibilities of the Chief Judge and the Chief Executive Officer 99
38A....... Management of administrative affairs of Court................................. 99
38B....... Chief Executive Officer..................................................................... 99
Division 1A—Administration of Court’s family services 100
38BA.... Chief Executive Officer has functions of family consultants........... 100
38BB..... Chief Executive Officer may delegate powers and functions that relate to family consultants 100
38BC..... Chief Executive Officer may give directions that relate to family services functions 100
38BD.... Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner...................................................................................... 101
Division 2—Appointment, powers etc. of Chief Executive Officer 102
38C....... Appointment of Chief Executive Officer......................................... 102
38D....... Powers of Chief Executive Officer................................................. 102
38E........ Remuneration of Chief Executive Officer....................................... 102
38F........ Terms and conditions of appointment of Chief Executive Officer... 102
38G....... Leave of absence............................................................................. 103
38H....... Resignation..................................................................................... 103
38J........ Outside employment of Chief Executive Officer............................. 103
38K....... Termination of appointment............................................................ 103
38L........ Disclosure of interests by Chief Executive Officer......................... 105
38M...... Acting Chief Executive Officer....................................................... 105
Division 3—Other officers and staff of Registries 106
38N....... Personnel other than the Chief Executive Officer............................ 106
38P........ Marshal........................................................................................... 107
38Q....... Statutory Agency etc. for purposes of Public Service Act.............. 107
38R....... Engagement of consultants etc........................................................ 107
Division 4—Miscellaneous administrative matters 109
38S........ Annual report.................................................................................. 109
38W...... Delegation of administrative powers of Chief Judge....................... 109
38X....... Proceedings arising out of administration of Court......................... 109
Part V—Jurisdiction of courts 110
Division 1—Jurisdiction in matrimonial causes 110
39.......... Jurisdiction in matrimonial causes................................................... 110
Division 2—Jurisdiction in de facto financial causes 114
39A....... Instituting proceedings.................................................................... 114
39B....... Jurisdiction in de facto financial causes........................................... 115
39C....... Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia 115
39D....... Ceasing jurisdiction of State or Territory courts of summary jurisdiction 116
39E........ Revoking Proclamations ceasing jurisdiction of State or Territory courts 116
39F........ Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory 117
39G....... Jurisdiction in relation to transferred matters under other Commonwealth laws 117
Division 3—Other provisions 118
40.......... Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts 118
40A....... Exercise of jurisdiction of Federal Magistrates Court in certain States and Territories 119
41.......... Establishment of State Family Courts............................................. 119
42.......... Law to be applied............................................................................ 121
43.......... Principles to be applied by courts.................................................... 121
44.......... Institution of proceedings................................................................ 122
44A....... Proceedings for divorce order......................................................... 126
45.......... Stay and transfer of proceedings..................................................... 126
46.......... Transfer of proceedings from court of summary jurisdiction in certain cases 127
47.......... Courts to act in aid of each other..................................................... 130
Part VI—Divorce and nullity of marriage 131
48.......... Divorce........................................................................................... 131
49.......... Meaning of separation..................................................................... 131
50.......... Effect of resumption of cohabitation............................................... 131
51.......... Nullity of marriage.......................................................................... 132
52.......... Court not to make divorce order where application for decree of nullity before it 132
53.......... Circumstances occurring before commencement of Act or outside Australia 132
55.......... When divorce order takes effect...................................................... 132
55A....... Divorce order where children.......................................................... 134
56.......... Certificate as to divorce order.......................................................... 135
57.......... Rescission of divorce order where parties reconciled...................... 136
58.......... Rescission of divorce order on ground of miscarriage of justice..... 136
59.......... Re‑marriage..................................................................................... 136
Part VII—Children 137
Division 1—Introductory 137
Subdivision A—What this Division does 137
60A....... What this Division does.................................................................. 137
Subdivision B—Object, principles and outline 137
60B....... Objects of Part and principles underlying it.................................... 137
60C....... Outline of Part................................................................................. 139
Subdivision BA—Best interests of the child: court proceedings 142
60CA.... Child’s best interests paramount consideration in making a parenting order 142
60CB..... Proceedings to which Subdivision applies...................................... 142
60CC..... How a court determines what is in a child’s best interests.............. 142
60CD.... How the views of a child are expressed.......................................... 145
60CE..... Children not required to express views........................................... 146
60CF..... Informing court of relevant family violence orders......................... 146
60CG.... Court to consider risk of family violence........................................ 146
60CH.... Informing court of care arrangements under child welfare laws...... 146
60CI...... Informing court of notifications to, and investigations by, prescribed State or Territory agencies 147
Subdivision BB—Best interests of the child: adviser’s obligations 148
60D....... Adviser’s obligations in relation to best interests of the child......... 148
Subdivision C—Interpretation and application of Part 148
60E........ Application of Part to void marriages.............................................. 148
Subdivision D—Interpretation—how this Act applies to certain children 149
60EA..... Definition of de facto partner......................................................... 149
60F........ Certain children are children of marriage etc................................... 149
60G....... Family Court may grant leave for adoption proceedings by prescribed adopting parent 150
60H....... Children born as a result of artificial conception procedures........... 150
60HA.... Children of de facto partners........................................................... 152
60HB.... Children born under surrogacy arrangements................................. 152
Subdivision E—Family dispute resolution 153
60I......... Attending family dispute resolution before applying for Part VII order 153
60J........ Family dispute resolution not attended because of child abuse or family violence 157
Division 2—Parental responsibility 159
61A....... What this Division does.................................................................. 159
61B....... Meaning of parental responsibility................................................. 159
61C....... Each parent has parental responsibility (subject to court orders)..... 159
61D....... Parenting orders and parental responsibility.................................... 160
61DA.... Presumption of equal shared parental responsibility when making parenting orders 160
61DB.... Application of presumption of equal shared parental responsibility after interim parenting order made 161
61E........ Effect of adoption on parental responsibility................................... 161
61F........ Application to Aboriginal or Torres Strait Islander children........... 161
Division 3—Reports relating to children under 18 162
62A....... What this Division does.................................................................. 162
62B....... Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services................................................................. 162
62G....... Reports by family consultants......................................................... 162
Division 4—Parenting plans 164
63A....... What this Division does.................................................................. 164
63B....... Parents encouraged to reach agreement........................................... 164
63C....... Meaning of parenting plan and related terms.................................. 164
63CAA. Parenting plans may include child support provisions.................... 166
63D....... Parenting plan may be varied or revoked by further written agreement 166
63DA.... Obligations of advisers................................................................... 166
63DB.... Registered parenting plans.............................................................. 169
63E........ Registration of a revocation of a registered parenting plan.............. 169
63F........ Child welfare provisions of registered parenting plans................... 170
63G....... Child maintenance provisions of registered parenting plans—where not enforceable as maintenance agreements 171
63H....... Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans 172
Division 5—Parenting orders—what they are 174
64A....... What this Division does.................................................................. 174
64B....... Meaning of parenting order and related terms................................ 174
64C....... Parenting orders may be made in favour of parents or other persons 176
64D....... Parenting orders subject to later parenting plans............................. 176
Division 6—Parenting orders other than child maintenance orders 177
Subdivision A—Introductory 177
65A....... What this Division does.................................................................. 177
65AA.... Child’s best interests paramount consideration in making a parenting order 177
65B....... Division does not apply to child maintenance orders...................... 178
Subdivision B—Applying for and making parenting orders 178
65C....... Who may apply for a parenting order.............................................. 178
65D....... Court’s power to make parenting order........................................... 178
65DAA. Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances........................................................................................................ 179
65DAB. Court to have regard to parenting plans........................................... 181
65DAC. Effect of parenting order that provides for shared parental responsibility 181
65DAE.. No need to consult on issues that are not major long‑term issues... 182
65DA.... Parenting orders.............................................................................. 183
65F........ General requirements for counselling before parenting order made 184
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................................................. 184
65H....... Children who are 18 or over or who have married or entered de facto relationships 185
65J........ Effect of adoption on parenting order.............................................. 186
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...................................................... 186
65L........ Family consultants may be required to supervise or assist compliance with parenting orders 187
65LA..... Court may order attendance at a post‑separation parenting program 187
65LB..... Conditions for providers of post‑separation parenting programs.... 188
Subdivision C—General obligations created by certain parenting orders 189
65M...... General obligations created by parenting order that deals with whom a child lives with 189
65N....... General obligations created by parenting order that deals with whom a child spends time with 189
65NA.... General obligations created by parenting order that deals with whom a child communicates with 189
65P........ General obligations created by parenting order that allocates parental responsibility 190
65Q....... Court may issue warrant for arrest of alleged offender................... 190
Subdivision D—Dealing with people who have been arrested 191
65R....... Situation to which Subdivision applies........................................... 191
65S........ Arrested person to be brought before a court.................................. 191
65T........ Obligation of court—where application before it to deal with contravention 192
65U....... Obligation of court—where no application before it, but application before another court, to deal with contravention........................................................................................................ 192
65V....... Obligation of court—where no application before any court to deal with contravention 193
65W...... Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b) 193
Subdivision E—Obligations under parenting orders relating to taking or sending children from Australia 194
65X....... Interpretation................................................................................... 194
65Y....... Obligations if certain parenting orders have been made.................. 194
65Z........ Obligations if proceedings for the making of certain parenting orders are pending 195
65ZA..... Obligations of owners etc. of aircraft and vessels if certain parenting orders made 195
65ZB..... Obligations of owners etc. of aircraft and vessels if proceedings for the making of certain parenting orders are pending........................................................................................................ 197
65ZC..... General provisions applicable to sections 65ZA and 65ZB............. 198
65ZD..... State or Territory laws stopping children leaving Australia not affected.. 198
Division 7—Child maintenance orders 199
Subdivision A—What this Division does 199
66A....... What this Division does.................................................................. 199
Subdivision B—Objects and principles 199
66B....... Objects............................................................................................ 199
66C....... Principles—parents have primary duty to maintain......................... 199
66D....... Principles—when step‑parents have a duty to maintain.................. 200
Subdivision C—Relationship with Child Support (Assessment) Act 200
66E........ Child maintenance order not to be made etc. if application for administrative assessment of child support could be made........................................................................................................ 200
Subdivision D—Applying for and making child maintenance orders 201
66F........ Who may apply for a child maintenance order................................ 201
66G....... Court’s power to make child maintenance order............................. 201
66H....... Approach to be taken in proceedings for child maintenance order.. 201
66J........ Matters to be taken into account in considering financial support necessary for maintenance of child 202
66K....... Matters to be taken into account in determining contribution that should be made by party etc. 203
66L........ Children who are 18 or over........................................................... 204
66M...... When step‑parents have a duty to maintain..................................... 205
66N....... Determining financial contribution of step‑parent........................... 205
Subdivision E—Other aspects of courts’ powers 206
66P........ General powers of court.................................................................. 206
66Q....... Urgent child maintenance orders..................................................... 207
66R....... Specification in orders of payments etc. for child maintenance purposes 207
66S........ Modification of child maintenance orders....................................... 208
Subdivision EA—Varying the maintenance of certain children 211
66SA..... Varying the maintenance of certain children.................................... 211
Subdivision F—When child maintenance orders stop being in force 212
66T........ Effect of child turning 18................................................................ 212
66U....... Effect of death of child, person liable to pay or person entitled to receive 212
66V....... Effect of adoption, marriage or entering into a de facto relationship 212
66VA.... Children who are 18 or over: change of circumstances................... 213
66W...... Recovery of arrears......................................................................... 213
Subdivision G—Recovery of amounts paid under maintenance orders 214
66X....... Recovery of amounts paid, and property transferred or settled, under maintenance orders 214
Division 8—Other matters relating to children 217
Subdivision A—What this Division does 217
67A....... What this Division does.................................................................. 217
Subdivision B—Father’s liability to contribute towards child bearing expenses if not married to mother 217
67B....... Father liable to contribute towards maintenance and expenses of mother 217
67C....... Matters to be taken into account in proceedings under Subdivision 218
67D....... Powers of court in proceedings under Subdivision......................... 218
67E........ Urgent orders.................................................................................. 219
67F........ Who may institute proceedings....................................................... 220
67G....... Time limit for institution of proceedings......................................... 220
Subdivision C—Location and recovery of children 220
67J........ Meaning of location order and Commonwealth information order 220
67K....... Who may apply for a location order................................................ 220
67L........ Child’s best interests paramount consideration in making a location order 221
67M...... Provisions about location orders, other than Commonwealth information orders 221
67N....... Provisions about Commonwealth information orders..................... 222
67P........ Information provided under location order not to be disclosed except to limited persons 224
67Q....... Meaning of recovery order............................................................. 225
67R....... How recovery orders authorise or direct people.............................. 226
67S........ How recovery orders to stop and search etc. name or describe vehicles, places etc. 226
67T........ Who may apply for a recovery order............................................... 227
67U....... Court’s power to make recovery order............................................ 227
67V....... Child’s best interests paramount consideration in making a recovery order 227
67W...... How long recovery order remains in force...................................... 227
67X....... Persons not to prevent or hinder taking of action under recovery order 228
67Y....... Obligation to notify persons of child’s return................................. 228
Subdivision D—Allegations of child abuse and family violence 229
67Z........ Where interested person makes allegation of child abuse................ 229
67ZA..... Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc................................................................................. 230
67ZB..... No liability for notification under section 67Z or 67ZA.................. 231
67ZBA.. Where interested person makes allegation of family violence.......... 232
67ZBB.. Court to take prompt action in relation to allegations of child abuse or family violence 233
Subdivision E—Other orders about children 234
67ZC..... Orders relating to welfare of children.............................................. 234
67ZD..... Orders for delivery of passports..................................................... 234
Division 9—Injunctions 235
68A....... What this Division does.................................................................. 235
68B....... Injunctions...................................................................................... 235
68C....... Powers of arrest.............................................................................. 236
Division 10—Independent representation of child’s interests 237
68L........ Court order for independent representation of child’s interests....... 237
68LA..... Role of independent children’s lawyer............................................ 238
68M...... Order that child be made available for examination......................... 239
Division 11—Family violence 241
68N....... Purposes of this Division................................................................ 241
68P........ Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order.................................................................................. 241
68Q....... Relationship of order or injunction made under this Act with existing inconsistent family violence order 243
68R....... Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act............................................................. 244
68S........ Application of Act and Rules when exercising section 68R power. 245
68T........ Special provisions relating to proceedings to make an interim (or interim variation of) family violence order 246
Division 12—Proceedings and jurisdiction 247
Subdivision A—What this Division does 247
69A....... What this Division does.................................................................. 247
Subdivision B—Institution of proceedings and procedure 247
69B....... Certain proceedings to be instituted only under this Part................. 247
69C....... Who may institute proceedings....................................................... 247
69D....... Institution of maintenance proceedings by authorised authority or person 248
69E........ Child or parent to be present in Australia etc................................... 248
69F........ Applicant may be in contempt......................................................... 249
Subdivision C—Jurisdiction of courts 249
69G....... Interpretation................................................................................... 249
69H....... Jurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Magistrates Court........................................................................................................ 249
69J........ Jurisdiction of courts of summary jurisdiction................................ 249
69K....... Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory 251
69L........ Jurisdiction in relation to transferred matters under other Commonwealth laws 251
69M...... Jurisdiction is additional to other jurisdiction.................................. 251
69N....... Transfer of proceedings from courts of summary jurisdiction in certain cases 251
Subdivision D—Presumptions of parentage 253
69P........ Presumptions of parentage arising from marriage........................... 253
69Q....... Presumption of paternity arising from cohabitation......................... 253
69R....... Presumption of parentage arising from registration of birth............ 254
69S........ Presumptions of parentage arising from findings of courts............. 254
69T........ Presumption of paternity arising from acknowledgments............... 255
69U....... Rebuttal of presumptions etc........................................................... 255
Subdivision E—Parentage evidence 255
69V....... Evidence of parentage..................................................................... 255
69VA.... Declarations of parentage................................................................ 256
69W...... Orders for carrying out of parentage testing procedures................. 256
69X....... Orders associated with parentage testing orders.............................. 256
69XA.... Matters related particularly to parentage testing for purposes of an international agreement or arrangement 257
69Y....... Orders directed to persons 18 or over............................................. 258
69Z........ Orders directed to children under 18............................................... 258
69ZA..... No liability if parent etc. consents................................................... 258
69ZB..... Regulations about carrying out, and reporting on, parentage testing procedures 259
69ZC..... Reports of information obtained may be received in evidence......... 259
69ZD..... Parentage testing for purposes of international maintenance agreements 260
Subdivision F—Extension, application and additional operation of Part 261
69ZE..... Extension of Part to the States......................................................... 261
69ZF..... Unless declaration in force, Part’s extension to a State has effect subject to modifications 261
69ZG..... Application of Part in, and in relation to, Territories....................... 262
69ZH..... Additional application of Part.......................................................... 262
69ZJ...... Additional jurisdiction of courts...................................................... 263
69ZK..... Child welfare laws not affected....................................................... 264
Division 12A—Principles for conducting child‑related proceedings 265
Subdivision A—Proceedings to which this Division applies 265
69ZM.... Proceedings to which this Division applies..................................... 265
Subdivision B—Principles for conducting child‑related proceedings 266
69ZN..... Principles for conducting child‑related proceedings........................ 266
69ZO..... This Division also applies to proceedings in Chambers.................. 267
69ZP..... Powers under this Division may be exercised on court’s own initiative.. 267
Subdivision C—Duties and powers related to giving effect to the principles 267
69ZQ..... General duties................................................................................. 267
69ZR..... Power to make determinations, findings and orders at any stage of proceedings 268
69ZS..... Use of family consultants................................................................ 269
Subdivision D—Matters relating to evidence 269
69ZT..... Rules of evidence not to apply unless court decides........................ 269
69ZV..... Evidence of children........................................................................ 270
69ZW.... Evidence relating to child abuse or family violence......................... 271
69ZX..... Court’s general duties and powers relating to evidence................... 272
Division 13—State, Territory and overseas orders 274
Subdivision A—What this Division does 274
70A....... What this Division does.................................................................. 274
Subdivision B—Registration of State and Territory orders 274
70C....... General registration of orders made under law of prescribed State. 274
70D....... Registration of orders in a particular State....................................... 274
70E........ Effect of registration........................................................................ 274
Subdivision C—Registration of overseas orders 275
70G....... Registration of orders...................................................................... 275
70H....... Effect of registration—general........................................................ 275
70J........ Effect of registration on exercise of jurisdiction.............................. 275
70K....... Cancellation of registration if Subdivision C parenting order made 276
70L........ Relationship between Australian orders and registered overseas child orders 276
Subdivision D—Transmission of Australian orders to overseas jurisdictions 277
70M...... Registrar to send documents etc. to overseas jurisdiction................ 277
70N....... Regulations may deal with sending Australian orders etc. to overseas jurisdiction 278
Division 13A—Consequences of failure to comply with orders, and other obligations, that affect children 280
Subdivision A—Preliminary 280
70NAA. Simplified outline of Division......................................................... 280
70NAB. Application of Division................................................................... 280
70NAC. Meaning of contravened an order................................................... 281
70NAD. Requirements taken to be included in certain orders........................ 281
70NAE.. Meaning of reasonable excuse for contravening an order.............. 282
70NAF.. Standard of proof............................................................................ 284
Subdivision B—Court’s power to vary parenting order 284
70NBA. Variation of parenting order............................................................ 284
70NBB.. Effect of parenting plan................................................................... 285
Subdivision C—Contravention alleged but not established 286
70NCA. Application of Subdivision............................................................. 286
70NCB.. Costs............................................................................................... 286
Subdivision D—Contravention established but reasonable excuse for contravention 287
70NDA. Application of Subdivision............................................................. 287
70NDB. Order compensating person for time lost........................................ 287
70NDC. Costs............................................................................................... 288
Subdivision E—Contravention without reasonable excuse (less serious contravention) 288
70NEA.. Application of Subdivision............................................................. 288
70NEB.. Powers of court............................................................................... 289
70NEC.. Bonds.............................................................................................. 292
70NECA Procedure for enforcing bonds...................................................... 293
70NED.. Duties of provider of post‑separation parenting program................ 294
70NEF.. Evidence.......................................................................................... 294
70NEG.. Court may make further orders in relation to attendance at program 294
Subdivision F—Contravention without reasonable excuse (more serious contravention) 295
70NFA.. Application of Subdivision............................................................. 295
70NFB.. Powers of court............................................................................... 296
70NFC.. When court is empowered to make a community service order....... 298
70NFD.. Variation and discharge of community service orders..................... 299
70NFE.. Bonds.............................................................................................. 300
70NFF.. Procedure for enforcing community service orders or bonds.......... 300
70NFG.. Sentences of imprisonment............................................................. 301
70NFH.. Relationship between Subdivision and other laws.......................... 303
70NFI... Arrangements with States and Territories for carrying out of sentences and orders 303
70NFJ... Subdivision does not limit operation of section 105........................ 303
Division 14—Miscellaneous 304
70P........ What this Division does.................................................................. 304
70Q....... Certain instruments not liable to duty.............................................. 304
Part VIII—Property, spousal maintenance and maintenance agreements 305
71.......... Interpretation................................................................................... 305
71A....... This Part does not apply to certain matters covered by binding financial agreements 305
72.......... Right of spouse to maintenance....................................................... 305
74.......... Power of court in spousal maintenance proceedings....................... 306
75.......... Matters to be taken into consideration in relation to spousal maintenance 307
77.......... Urgent spousal maintenance cases.................................................. 310
77A....... Specification in orders of payments etc. for spouse maintenance purposes 310
78.......... Declaration of interests in property................................................. 311
79.......... Alteration of property interests........................................................ 311
79A....... Setting aside of orders altering property interests............................ 318
79B....... Notification of proceeds of crime orders etc.................................... 321
79C....... Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc. 322
79D....... Lifting a stay................................................................................... 323
79E........ Intervention by proceeds of crime authority.................................... 324
79F........ Notifying third parties about application......................................... 324
79G....... Notifying bankruptcy trustee etc. about application under section 74, 78, 79 or 79A 324
79H....... Notifying court about bankruptcy etc.............................................. 324
79J........ Notifying non‑bankrupt spouse about application under section 139A of the Bankruptcy Act 1966 326
80.......... General powers of court.................................................................. 326
81.......... Duty of court to end financial relations........................................... 328
82.......... Cessation of spousal maintenance orders........................................ 328
83.......... Modification of spousal maintenance orders................................... 329
85A....... Ante‑nuptial and post‑nuptial settlements........................................ 331
86A....... Certain maintenance agreements ineffective.................................... 331
86.......... Registered maintenance agreements................................................ 331
87.......... Operation of maintenance agreements entered into in substitution for rights under Act 333
87A....... Specification in maintenance agreements of payments etc. for maintenance purposes 338
88.......... Enforcement of maintenance agreements......................................... 338
89.......... Overseas maintenance agreements.................................................. 339
89A....... Institution of spousal maintenance proceedings by authority or person 339
90.......... Certain instruments not liable to duty.............................................. 339
Part VIIIAA—Orders and injunctions binding third parties 342
Division 1—Preliminary 342
Subdivision A—Scope of this Part 342
90AA.... Object of this Part........................................................................... 342
90AB.... Definitions...................................................................................... 342
90AC.... This Part overrides other laws, trust deeds etc................................ 342
90ACA. This Part not to apply to certain annuities........................................ 343
90AD.... Extended meaning of matrimonial cause and property................... 343
90ADA. Other provisions of this Act not affected by this Part..................... 343
Division 2—Orders under section 79 344
90AE..... Court may make an order under section 79 binding a third party.... 344
Division 3—Orders or injunctions under section 114 346
90AF..... Court may make an order or injunction under section 114 binding a third party 346
Division 4—Other matters 348
90AG.... Orders and injunctions binding on trustees..................................... 348
90AH.... Protection for a third party.............................................................. 348
90AI...... Service of documents on a third party............................................. 348
90AJ..... Expenses of third party................................................................... 348
90AK.... Acquisition of property................................................................... 349
Part VIIIA—Financial agreements 350
90A....... Definitions...................................................................................... 350
90B....... Financial agreements before marriage............................................. 350
90C....... Financial agreements during marriage............................................. 351
90D....... Financial agreements after divorce order is made............................ 352
90DA.... Need for separation declaration for certain provisions of financial agreement to take effect 352
90DB.... Whether or when certain other provisions of financial agreements take effect 354
90E........ Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children........................................................................................... 354
90F........ Certain provisions in agreements.................................................... 354
90G....... When financial agreements are binding........................................... 355
90H....... Effect of death of party to financial agreement................................ 356
90J........ Termination of financial agreement................................................. 356
90K....... Circumstances in which court may set aside a financial agreement or termination agreement 358
90KA.... Validity, enforceability and effect of financial agreements and termination agreements 360
90L........ Financial and other agreements etc. not liable to duty...................... 361
90M...... Notification of proceeds of crime orders etc.................................... 361
90N....... Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc. 362
90P........ Lifting a stay................................................................................... 363
90Q....... Intervention by proceeds of crime authority.................................... 363
Part VIIIAB—Financial matters relating to de facto relationships 364
Division 1—Preliminary 364
Subdivision A—Meaning of key terms 364
90RA.... Participating jurisdictions................................................................ 364
90RB..... Meaning of child of a de facto relationship..................................... 365
Subdivision B—Relationship with State and Territory laws 365
90RC..... Relationship with State and Territory laws...................................... 365
Subdivision C—Declarations about existence of de facto relationships 367
90RD.... Declarations about existence of de facto relationships..................... 367
90RE..... Effect of declarations....................................................................... 367
90RF..... Applying for declarations................................................................ 368
90RG.... Geographical requirement............................................................... 368
90RH.... Setting aside declarations................................................................ 368
Division 2—Maintenance, declarations of property interests and alterations of property interests 369
Subdivision A—Application of Division 369
90SA..... This Division does not apply to certain matters covered by binding financial agreements 369
90SB..... When this Division applies—length of relationship etc................... 370
90SC..... This Division ceases to apply in relation to a de facto relationship if the parties marry each other 370
Subdivision B—Maintenance 371
90SD..... Geographical requirement............................................................... 371
90SE..... Power of court in maintenance proceedings.................................... 372
90SF..... Matters to be taken into consideration in relation to maintenance.... 374
90SG..... Urgent maintenance cases............................................................... 376
90SH..... Specification in orders of payments etc. for maintenance purposes. 377
90SI...... Modification of maintenance orders................................................ 378
90SJ...... Cessation of maintenance orders..................................................... 380
Subdivision C—Declarations and alterations of property interests 381
90SK..... Geographical requirement............................................................... 381
90SL..... Declaration of interests in property................................................. 382
90SM.... Alteration of property interests........................................................ 382
90SN..... Varying and setting aside orders altering property interests............ 390
Subdivision D—Notification of application 393
90SO..... Notifying third parties about application......................................... 393
90SP..... Notifying bankruptcy trustee etc. about application under section 90SE, 90SL, 90SM or 90SN 393
90SQ..... Notifying court about bankruptcy etc.............................................. 393
90SR..... Notifying non‑bankrupt de facto party about application under section 139A of the Bankruptcy Act 1966 395
Subdivision E—Court powers 395
90SS..... General powers of court.................................................................. 395
90ST..... Duty of court to end financial relations........................................... 398
Division 3—Orders and injunctions binding third parties 399
90TA..... Orders and injunctions binding third parties................................... 399
Division 4—Financial agreements 401
90UA.... Geographical requirement for agreements made in participating jurisdictions 401
90UB.... Financial agreements before de facto relationship........................... 401
90UC.... Financial agreements during de facto relationship........................... 402
90UD.... Financial agreements after breakdown of a de facto relationship..... 403
90UE..... Agreements made in non‑referring States that become Part VIIIAB financial agreements 403
90UF..... Need for separation declaration for certain provisions of financial agreement to take effect 405
90UG.... Whether or when certain other provisions of financial agreements take effect 406
90UH.... Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children........................................................................................... 407
90UI...... Certain provisions in financial agreements...................................... 407
90UJ..... When financial agreements are binding........................................... 408
90UK.... Effect of death of party to financial agreement................................ 409
90UL..... Termination of financial agreement................................................. 409
90UM... Circumstances in which court may set aside a financial agreement or termination agreement 411
90UN.... Validity, enforceability and effect of financial agreements and termination agreements 414
Division 5—Proceeds of crime and forfeiture 416
90VA.... Notification of proceeds of crime orders etc.................................... 416
90VB.... Court to stay property or maintenance proceedings affected by proceeds of crime orders etc. 417
90VC.... Lifting a stay................................................................................... 418
90VD.... Intervention by proceeds of crime authority.................................... 418
Division 6—Instruments not liable to duty 419
90WA... Certain instruments not liable to duty.............................................. 419
Part VIIIB—Superannuation interests 420
Division 1—Preliminary 420
Subdivision A—Scope of this Part 420
90MA... Object of this Part........................................................................... 420
90MB.... This Part overrides other laws, trust deeds etc................................ 420
90MC.... Extended meanings of matrimonial cause and de facto financial cause 420
Subdivision B—Interpretation 421
90MD... Definitions...................................................................................... 421
90MDA Extended meaning of trustee........................................................... 423
90ME.... Splittable payments......................................................................... 424
90MF.... Reversionary interest....................................................................... 424
90MG... Meaning of in force......................................................................... 424
Division 2—Payment splitting or flagging by agreement 426
Subdivision A—Superannuation agreements 426
90MH... Superannuation agreement to be included in financial agreement if about a marriage 426
90MHA Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship 426
Subdivision B—Payment splitting 427
90MI..... Operative time for payment split..................................................... 427
90MJ..... Payment split under superannuation agreement or flag lifting agreement 428
Subdivision C—Payment flagging 429
90MK.... Operative time for payment flag...................................................... 429
90ML.... Payment flag................................................................................... 430
90MLA. Some splittable payments payable if payment flag operating........... 431
90MM... Payment flag may be terminated by court........................................ 432
90MN... Flag lifting agreement etc................................................................ 432
Subdivision D—Miscellaneous 433
90MO... Limitation on section 79 or 90SM order......................................... 433
90MP.... Separation declaration..................................................................... 434
90MQ... Superannuation interests in excess of low rate cap amount............. 436
90MR.... Enforcement by court order............................................................. 437
Division 3—Payment splitting or flagging by court order 438
90MS.... Order under section 79 or 90SM may include orders in relation to superannuation interests 438
90MT.... Splitting order................................................................................. 438
90MU... Flagging order................................................................................. 440
90MUA Some splittable payments may be made without leave of court....... 440
Division 4—General provisions about payment splitting 441
90MV... Court may cancel payment split....................................................... 441
90MW... Deductions from splittable payment before calculating payment split 441
90MX... Multiple payment splits applying to the same splittable payment.... 441
90MY... Fees payable to trustee.................................................................... 442
90MZ.... Superannuation preservation requirements...................................... 442
90MZA. Waiver of rights under payment split.............................................. 443
90MZB. Trustee to provide information........................................................ 444
90MZC. Death of non‑member spouse......................................................... 445
Division 5—Miscellaneous 446
90MZD. Orders binding on trustee................................................................ 446
90MZE.. Protection for trustee....................................................................... 446
90MZF.. Service of documents on trustee...................................................... 447
90MZG. False declarations............................................................................ 447
90MZH. Terminating employment because of payment flag etc.................... 447
Part IX—Intervention 448
91.......... Intervention by Attorney‑General................................................... 448
91A....... Delegation by Attorney‑General..................................................... 448
91B....... Intervention by child welfare officer............................................... 449
92.......... Intervention by other persons.......................................................... 449
92A....... Intervention in child abuse cases..................................................... 450
Part X—Appeals 451
93.......... No appeal after divorce order takes effect....................................... 451
93A....... Appellate jurisdiction of Family Court............................................ 451
94.......... Appeals to Family Court from courts other than the Federal Magistrates Court and the Magistrates Court of Western Australia.......................................................................................... 451
94AAA. Appeals to Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia 453
94AAB. Appeals, and applications for leave, without oral hearing............... 456
94AA.... Leave to appeal needed in some cases............................................. 456
94A....... Case stated...................................................................................... 458
95.......... Appeals to High Court.................................................................... 459
96.......... Appeals from courts of summary jurisdiction................................. 459
96AA.... Appeal may be dismissed if no reasonable prospect of
success............................................................................................ 460
96A....... Part does not apply to section 111C jurisdiction............................. 461
Part XI—Procedure and evidence 462
Division 1—General matters concerning procedure and evidence 462
97.......... Procedure........................................................................................ 462
98.......... Evidence by affidavit....................................................................... 463
98AA.... Oaths and affirmations.................................................................... 463
98AB.... Swearing of affidavits etc................................................................ 463
98A....... Proceedings in absence of parties.................................................... 465
100........ Evidence of husbands and wives.................................................... 466
100B..... Children swearing affidavits, being called as witnesses or being present in court 466
101........ Protection of witnesses................................................................... 467
102........ Proof of birth, parentage, death or marriage.................................... 467
102A..... Restrictions on examination of children.......................................... 467
102B..... Assessors........................................................................................ 468
Division 2—Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc. 469
102C..... Testimony....................................................................................... 469
102D..... Appearance of persons.................................................................... 470
102E...... Making of submissions................................................................... 470
102F...... Conditions for use of links.............................................................. 471
102G..... Putting documents to a person........................................................ 473
102H..... Putting documents to a split court................................................... 474
102J...... Administration of oaths and affirmations........................................ 475
102K..... Expenses......................................................................................... 475
102L...... New Zealand proceedings............................................................... 476
Division 3—Split court 477
102M.... Determination that there is to be a split court................................... 477
102N..... Conditions for split court................................................................ 477
Part XII—Recognition of decrees 479
103........ Decrees under this Act.................................................................... 479
104........ Overseas decrees............................................................................. 479
104A..... Recognition in external Territories.................................................. 482
Part XIII—Enforcement of decrees 483
105........ Enforcement generally..................................................................... 483
106........ Maintenance orders—more than 12 months in arrears.................... 483
106A..... Execution of instruments by order of court..................................... 484
106B..... Transactions to defeat claims........................................................... 485
107........ People not to be imprisoned for failure to comply with certain orders 487
109........ Inter‑State enforcement of child bearing expenses order................. 487
109A..... Rules of Court relating to enforcement............................................ 487
109B..... Rules of Court relating to enforcement—Federal Magistrates Court 489
Part XIIIAA—International conventions, international agreements and international enforcement 491
Division 1—International maintenance orders and agreements etc. 491
110........ Overseas enforcement of maintenance orders etc............................ 491
110A..... Registration and enforcement in Australia of overseas maintenance agreements etc. 494
110B..... Transmission of agreements etc. to overseas jurisdictions.............. 494
111........ Convention on Recovery Abroad of Maintenance.......................... 494
111A..... Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations 495
111AA.. Maintenance obligations with New Zealand.................................... 495
111AB.. Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations........................ 496
Division 2—International child abduction 497
111B..... Convention on the Civil Aspects of International Child Abduction 497
Division 3—International agreements about adoption etc. 500
111C..... International agreements about adoption etc.................................... 500
Division 4—International protection of children 502
Subdivision A—Preliminary 502
111CA.. Definitions...................................................................................... 502
111CB... Relationship between this Division and other provisions................ 504
Subdivision B—Jurisdiction for the person of a child 505
111CC... Application of this Subdivision....................................................... 505
111CD.. Jurisdiction relating to the person of a child.................................... 505
111CE... Limitation when a child is wrongfully removed from or retained outside a Convention country 507
111CF... Limitations when prior proceedings pending in a Convention country 507
111CG.. If a court is asked to assume jurisdiction......................................... 508
111CH.. Limitation if a competent authority of a Convention country is asked to assume jurisdiction 509
111CI.... When a certain Commonwealth personal protection measure lapses 510
Subdivision C—Jurisdiction for decisions about a guardian of a child’s property 511
111CJ.... Application of this Subdivision....................................................... 511
111CK... Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property 512
111CL... Limitation when a child is wrongfully removed from or retained outside a Convention country 513
111CM.. Limitations when prior proceedings pending in a Convention country 513
111CN.. If a court is asked to assume jurisdiction......................................... 515
111CO.. Limitation if a competent authority of a Convention country is asked to assume jurisdiction 515
111CP... When a certain Commonwealth property protection measure lapses 516
Subdivision D—Applicable law 518
111CQ.. Meaning of law............................................................................... 518
111CR... Applicable law generally................................................................. 518
111CS... Applicable law concerning parental responsibility.......................... 518
Subdivision E—Recognition of foreign measures 520
111CT... Effect of registered foreign measures.............................................. 520
Subdivision F—Co‑operation 520
111CU.. Obligation to obtain consent to place child...................................... 520
111CV.. Obligation to inform competent authority about serious danger to a child 520
111CW.. Court proceedings dealing with whom a child spends time with..... 521
111CX.. Jurisdiction for a location order or a Commonwealth information order 522
111CY.. Giving information to central authorities and competent authorities in Convention countries 522
Subdivision G—Regulations 523
111CZ... Regulations to implement the Convention....................................... 523
Division 5—Other matters 524
111D..... Regulations may provide for rules of evidence............................... 524
Part XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect children 525
Division 1—Interpretation 525
112AA.. Interpretation................................................................................... 525
112AB.. Meaning of contravene an order.................................................... 526
112AC.. Meaning of reasonable excuse for contravening an order............. 526
Division 2—Sanctions for failure to comply with orders 528
112AD.. Sanctions for failure to comply with orders.................................... 528
112AE... Sentences of imprisonment............................................................. 529
112AF... Bonds.............................................................................................. 530
112AG.. Additional sentencing alternatives................................................... 530
112AH.. Failure to comply with sentence passed, or order made, pursuant to paragraph 112AD(2)(b) 532
112AK.. Variation and discharge of orders................................................... 533
112AM. Relationship between Division and other laws................................ 534
112AN.. Arrangements with States and Territories for carrying out of sentences and orders 534
112AO.. Division does not limit operation of section 105............................. 535
Part XIIIB—Contempt of court 536
112AP... Contempt......................................................................................... 536
Part XIV—Declarations and injunctions 538
112A..... Interpretation................................................................................... 538
113........ Proceedings for declarations........................................................... 538
114........ Injunctions...................................................................................... 538
114AA.. Powers of arrest.............................................................................. 540
114AB.. Operation of State and Territory laws............................................. 541
Part XIVA—The Australian Institute of Family Studies 543
114A..... Interpretation................................................................................... 543
114B..... Establishment of Institute................................................................ 543
114C..... Minister may give directions to Director......................................... 544
114D..... Appointment of Director................................................................. 544
114E...... Term of appointment....................................................................... 544
114F...... Acting appointments....................................................................... 544
114G..... Director’s remuneration.................................................................. 545
114H..... Outside employment....................................................................... 545
114J...... Leave of absence............................................................................. 545
114K..... Disclosure of interests..................................................................... 545
114L...... Other terms and conditions............................................................. 546
114LA... Resignation..................................................................................... 546
114LB... Termination of appointment............................................................ 546
114LC... Annual reports................................................................................ 547
114LD... Delegation....................................................................................... 547
114M.... Staff................................................................................................ 547
Part XV—Miscellaneous 548
115........ Family Law Council........................................................................ 548
116C..... Payments to legal practitioners by legal aid bodies.......................... 549
117........ Costs............................................................................................... 550
117AA.. Costs in proceedings relating to overseas enforcement and international Conventions 552
117AC.. Security for costs............................................................................ 553
117A..... Reparation for certain losses and expenses relating to children....... 553
117B..... Interest on moneys ordered to be paid............................................. 554
117C..... Offers of settlement......................................................................... 555
118........ Frivolous or vexatious proceedings................................................ 555
119........ Married persons may sue each other............................................... 556
120........ Criminal conversation, adultery and enticement.............................. 556
121........ Restriction on publication of court proceedings.............................. 556
122........ Rights of legal practitioners............................................................. 559
122AA.. Use of reasonable force in arresting persons................................... 559
122A..... Powers of entry and search for purposes of arresting persons........ 560
122B..... Arrangements with States and Territories....................................... 560
123........ Rules of Court................................................................................. 561
124........ Rules Advisory Committee............................................................. 565
124A..... Regulations in relation to overseas‑related maintenance obligations etc... 566
125........ Regulations..................................................................................... 567
Schedule 1—Child Protection Convention 569
Notes 597
An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and to financial matters arising out of the breakdown of de facto relationships and to certain other Matters
Part I—Preliminary
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; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
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.
breakdown:
(a) in relation to a marriage, does not include a breakdown of the marriage by reason of death; and
(b) in relation to a de facto relationship, does not include a breakdown of the relationship by reason of death.
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).
child: Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.
Note: In determining if a child is the child of a person within the meaning of this Act, it is to be assumed that Part VII extends to all States and Territories.
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.
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
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 financial cause means:
(a) proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or
(b) proceedings between:
(i) a party to a de facto relationship; and
(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the maintenance of the first‑mentioned party after the breakdown of the de facto relationship; or
(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or
(d) proceedings between:
(i) a party to a de facto relationship; and
(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or
(e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); or
(f) third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or
(g) 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 the preceding paragraphs.
de facto property settlement or maintenance proceedings means proceedings with respect to:
(a) the distribution of the property of the parties to a de facto relationship or of either of them; or
(b) the distribution of the vested bankruptcy property in relation to a bankrupt party to a de facto relationship; or
(c) the maintenance of a party to a de facto relationship.
de facto relationship has the meaning given by section 4AA.
Department, in Subdivision C of Division 8 of Part VII, means a Department of State of the Commonwealth.
distribute:
(a) in relation to:
(i) property, and financial resources, of the parties to a de facto relationship or either of them; or
(ii) vested bankruptcy property in relation to a bankrupt party to a de facto relationship;
includes conferring rights or obligations in relation to the property or financial resources; and
(b) in relation to a Part VIIIAB financial agreement, has a meaning affected by subsection 90UI(3).
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.
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.
exposed to family violence, in relation to a child, has the meaning given by subsection 4AB(3).
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 has the meaning given by subsection 4AB(1).
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 means:
(a) in relation to the parties to a marriage—matters with respect to:
(i) the maintenance of one of the parties; or
(ii) the property of those parties or of either of them; or
(iii) the maintenance of children of the marriage; or
(b) in relation to the parties to a de facto relationship—any or all of the following matters:
(i) the maintenance of one of the parties;
(ii) the distribution of the property of the parties or of either of them;
(iii) the distribution of any other financial resources of the parties or of either of them.
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.
forfeiture order means:
(a) a forfeiture order under the Proceeds of Crime Act 2002; or
(b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a forfeiture order for the purposes of this paragraph.
freezing order means:
(a) a freezing order under the Proceeds of Crime Act 2002; or
(b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a freezing order for the purposes of this paragraph.
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 with respect to a financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); 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 has the meaning given by subsection (1AB).
Note: The definition in subsection (1AB) applies for the purposes of the provisions specified in that subsection.
non‑referring State de facto financial law means a law that:
(a) is a law of a State that is not a participating jurisdiction; and
(b) relates to financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships.
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).
participating jurisdiction has the meaning given by subsection 90RA(1).
Part VIIIAB financial agreement means an agreement:
(a) made under section 90UB, 90UC or 90UD; or
(b) covered by section 90UE.
Part VIIIAB proceedings means:
(a) proceedings under Part VIIIAB for orders with respect to:
(i) the maintenance of a party to a de facto relationship; or
(ii) the property of the parties to a de facto relationship or of either of them; or
(b) proceedings in relation to a Part VIIIAB financial agreement;
but does not include any proceedings specified in the regulations for the purposes of this definition.
Part VIIIAB termination agreement means an agreement made under paragraph 90UL(1)(b).
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.
party to a de facto relationship means a person who lives or has lived in a de facto relationship.
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 authority has the meaning given by section 4C.
Note: Section 4C provides for different proceeds of crime authorities in relation to orders under the Proceeds of Crime Act 2002 and State or Territory proceeds of crime laws.
proceeds of crime order means:
(aa) a freezing order; or
(a) a restraining order; or
(b) a forfeiture order.
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 means:
(a) 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; or
(b) in relation to the parties to a de facto relationship 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:
(a) in relation to the parties to a marriage—proceedings with respect to:
(i) the property of the parties or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; or
(b) in relation to the parties to a de facto relationship—proceedings with respect to:
(i) the property of the parties or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship.
reasonable excuse for contravening an order includes the meanings given by section 70NAE.
recovery order has the meaning given by section 67Q.
referring State has the meaning given by subsections 90RA(2), (3), (4) and (5).
Registrar means:
(a) in relation to the Family Court—the 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 sections 67Z and 67ZBA, 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.
restraining order means:
(a) a restraining order under the Proceeds of Crime Act 2002; or
(b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a restraining order for the purposes of this paragraph.
section 13E arbitration has the meaning given by subsection 10L(2).
section 90RD declaration means a declaration under subsection 90RD(1).
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).
spouse party means:
(a) in relation to a financial agreement—a party to the agreement who is a party to the contemplated marriage, marriage or former marriage to which the agreement relates; or
(aa) in relation to a termination agreement referred to in paragraph 90J(1)(b)—a party covered by paragraph (a) of this definition in relation to the financial agreement concerned; or
(b) in relation to a Part VIIIAB financial agreement—a party to the agreement who is a party to the contemplated de facto relationship, de facto relationship or former de facto relationship to which the agreement relates; or
(c) in relation to a Part VIIIAB termination agreement—a party covered by paragraph (b) of this definition in relation to the Part VIIIAB financial agreement concerned.
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.
State or Territory proceeds of crime law means a law in force in a State or Territory that is declared by the regulations to be a law that corresponds to the Proceeds of Crime Act 2002.
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 or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and
(c) treats, or at any time while married to, or a de facto partner of, the parent 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.
third party, in relation to a financial agreement or Part VIIIAB financial agreement, means a party to the agreement who is not a spouse party.
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 definition of step‑parent in subsection (1); and
(aa) section 4AB; and
(b) paragraphs 60CC(3)(j) and (k); and
(c) sections 60CF, 60CH and 60CI;
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.
(2A) A reference in this Act, the standard Rules of Court or the related Federal Magistrates Rules to a party to a de facto relationship includes a reference to a person who was a party to a de facto relationship that has broken down.
(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.
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
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) any combination of:
(i) the parties to a financial agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b) any of the following:
(i) a creditor;
(ii) if a creditor is an individual who has died—the legal personal representative of the creditor;
(iii) 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).
(1A) For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings also means proceedings between:
(a) any combination of:
(i) the parties to a financial agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b) either:
(i) another person who is a party to a de facto relationship with one of the spouse parties to the financial agreement; or
(ii) the legal personal representative of that other person if that person has died;
being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(ab).
(2) In this section:
creditor means:
(a) a creditor of a party 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 a party 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.
4B Third party proceedings to set aside Part VIIIAB financial agreement
(1) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings means proceedings between:
(a) any combination of:
(i) the parties to a Part VIIIAB financial agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b) any of the following:
(i) a creditor;
(ii) if a creditor is an individual who has died—the legal personal representative of the creditor;
(iii) a government body acting in the interests of a creditor;
being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(b).
(2) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between:
(a) any combination of:
(i) the parties to a Part VIIIAB financial agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b) either:
(i) another person who is a party to a de facto relationship with one of the spouse parties to the Part VIIIAB financial agreement; or
(ii) the legal personal representative of that other person if that person has died;
being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(c).
(3) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between:
(a) any combination of:
(i) the parties to a Part VIIIAB financial agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); and
(b) either:
(i) another person who is a party to a marriage with one of the spouse parties to the Part VIIIAB financial agreement; or
(ii) the legal personal representative of that other person if that person has died;
being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(d).
(4) In this section:
creditor means:
(a) a creditor of a party to the Part VIIIAB 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 a party to the Part VIIIAB 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.
4C Meaning of proceeds of crime authority
Scope
(1) This section sets out the meaning of proceeds of crime authority in relation to:
(a) a restraining order or a forfeiture order, or an application for a forfeiture order, under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application); and
(b) a freezing order under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such a freezing order); and
(c) a proceeds of crime order, or an application for a forfeiture order, under a State or Territory proceeds of crime law (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application).
Note: Freezing orders, restraining orders and forfeiture orders made under the Proceeds of Crime Act 2002 or a State or Territory proceeds of crime law are proceeds of crime orders (see subsection 4(1)).
Commonwealth proceeds of crime authorities
(2) For the purposes of paragraph (1)(a), proceeds of crime authority means the responsible authority for the relevant restraining order, forfeiture order or forfeiture application under the Proceeds of Crime Act 2002.
Note: Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).
(3) For the purposes of paragraph (1)(b), proceeds of crime authority means:
(a) the Commissioner of the Australian Federal Police; or
(b) the Director of Public Prosecutions.
State or Territory proceeds of crime authorities
(4) For the purposes of paragraph (1)(c), in relation to a provision of this Act, proceeds of crime authority means a person or body prescribed by the regulations to be the proceeds of crime authority for that provision in relation to:
(a) a class of proceeds of crime order, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant proceeds of crime order; or
(b) a class of forfeiture application, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant forfeiture application.
Note: The regulations may prescribe a proceeds of crime authority in relation to a proceeds of crime order under a State or Territory proceeds of crime law by reference to any matter, including (for example) by reference to who applied for the order.
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 IA—Protection 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 II—Non‑court based family services
Division 1—Accreditation 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 2—Family 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 3—Family 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 4—Arbitration
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, or Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement), 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 VIIIAB 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 III—Family consultants
Division 1—About 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 2—Courts’ 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, or arrange for child to attend, appointments with a family consultant
(1) A court exercising jurisdiction in proceedings under this Act may make either or both of the following kinds of order:
(a) an order directing one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant;
(b) an order directing one or more parties to the proceedings to arrange for a child 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.
(1A) If:
(a) a person fails to comply with an order under section 11F that he or she arrange for a child to attend an appointment with a family consultant; or
(b) a child fails to attend an appointment with a family consultant as arranged in compliance with an order under section 11F;
the consultant must report the failure to the court.
(2) On receiving a report under subsection (1) or (1A), 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 IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services
Division 1—Introduction
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 2—Kind 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 3—Who 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: For other obligations of legal practitioners in relation to Part VII matters, see sections 60D and 63DA.
(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: For other obligations of family counsellors and family dispute resolution practitioners in relation to Part VII matters, see sections 60D and 63DA. Those sections do not apply to arbitrators.
(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 IIIB—Court’s powers in relation to court and non‑court based family services
Division 1—Introduction
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 2—Help 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 3—Referrals 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, or arrange for a child 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 4—Court’s role in relation to arbitration of disputes
13E Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration
(1) With the consent of all of the parties to the proceedings, a court exercising jurisdiction in:
(a) Part VIII proceedings; or
(b) Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement);
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 IV—The Family Court of Australia
Division 1—Interpretation
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 2—The 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 effective, orderly and expeditious discharge of the business of the Court.
(1A) In discharging his or her responsibility under subsection (1) (and without limiting the generality of that subsection) the Chief Judge:
(a) may, subject to this Act and to such consultation with Judges as is appropriate and practicable, do all or any of the following:
(i) 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;
(ii) without limiting the generality of subparagraph (i)—assign particular caseloads, classes of cases or functions to particular Judges;
(iii) temporarily restrict a Judge to non‑sitting duties; and
(b) must ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of):
(i) annual health assessments; and
(ii) short‑term counselling services; and
(iii) judicial education.
(2) The Deputy Chief Judge shall assist the Chief Judge in the exercise of the functions conferred on the Chief Judge by this section.
(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 this section as are from time to time so assigned.
(4) In exercising, or assisting in the exercise of, the functions or powers mentioned in paragraph (1A)(a), the Chief Judge and the Deputy Chief Judge have the same protection and immunity as if they were exercising, or assisting in the exercise of, those functions or powers as, or as members of, the Court.
(5) Despite section 39B of the Judiciary Act 1903, the Federal Court of Australia does not have jurisdiction with respect to a matter relating to the exercise by the Chief Judge of, or relating to the Deputy Chief Judge assisting in the exercise of, the functions or powers mentioned in subsection (1A).
Division 3—Judges
22 Appointment, removal and resignation of Judges
Appointment 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.
Judges to be assigned to particular location
(2AAA) The commission of appointment of a Judge must assign the Judge to a particular location. The Judge:
(a) must not sit at another location on a permanent basis unless the Attorney‑General and the Chief Judge consent; and
(b) cannot be required to sit at another location on a permanent basis unless the Judge consents (in addition to the consents required by paragraph (a)); and
(c) may sit at another location on a temporary basis.
(2AAB) In deciding whether to consent as mentioned in paragraph (2AAA)(a), the Chief Judge has the same protection and immunity as if he or she were making that decision as, or as a member of, the Court.
(2AAC) Despite section 39B of the Judiciary Act 1903, the Federal Court of Australia does not have jurisdiction with respect to a matter relating to the exercise by the Attorney‑General or the Chief Judge of the power to consent as mentioned in paragraph (2AAA)(a).
Appeal Division
(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.
General Division
(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.
Appointment of Deputy Chief Judge or Judge Administrator
(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.
Judge of 2 or more courts
(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 or she 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 or she 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.
Resignation
(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.
Style
(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 next senior Judge 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 4—Judicial 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 5—Jurisdiction 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 or she 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; and
(aa) matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and
(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; and
(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 or her 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 6—Registries 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, 77 or 90SG; 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.
Note: For how this section applies in relation to powers of the Court under certain provisions, see section 37AA.
(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.
37AA Delegation to Registrars of powers exercisable by court as constituted in a particular way
(1) Without limiting subsection 37A(1), the powers that may be delegated to a Registrar under that subsection include:
(a) the powers of the Court, constituted in any way mentioned in subsection 94(2D), to hear and determine applications to which that subsection applies; and
(b) the powers of the Court, constituted in any way mentioned in subsection 94AAA(10), to hear and determine applications to which that subsection applies.
(2) If Rules of Court under subsection 37A(1) delegate powers referred to in paragraph (1)(a) or (b) of this section to a Registrar, those Rules may specify modifications of section 37A that are to have effect in relation to the exercise by a Registrar of the delegated powers.
(3) In this section:
Registrar has the same meaning as in section 37A.
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 7—Practice 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 IVA—Management of the Court
Division 1—Management 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 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 1A—Administration 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 2—Appointment, 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; or
(c) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;
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 CSC 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 CSC has given a certificate under section 13 of that Act.
(6) In spite of anything contained in this section, if the Chief Executive Officer:
(a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; 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 CSC has given an approval and certificate under section 43 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
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.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Division 3—Other 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 4—Miscellaneous 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 V—Jurisdiction of courts
Division 1—Jurisdiction 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.
Division 2—Jurisdiction in de facto financial causes
39A Instituting proceedings
Instituting proceedings under this Act
(1) A de facto financial cause may be instituted under this Act in:
(a) the Family Court; or
(b) the Federal Magistrates Court; or
(c) the Supreme Court of the Northern Territory of Australia; or
(d) a court of summary jurisdiction of a participating jurisdiction.
(2) However:
(a) in the case of proceedings between the parties to the de facto relationship—either of those parties; or
(b) in any other case—at least one of the parties to the proceedings;
must be an Australian citizen, ordinarily resident in Australia or present in Australia on the following day:
(c) if the application instituting the proceedings is filed in a court—the day on which the application is so filed;
(d) in any other case—the day on which the application instituting the proceedings is made.
(3) Subsection (2) does not apply in relation to proceedings referred to in paragraph (g) of the definition of de facto financial cause in subsection 4(1).
(4) Subsection (1) has effect subject to this Part.
Proceedings only to be instituted under this Act
(5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act.
(6) Subsection (5) has effect subject to subsection 90RC(5).
39B Jurisdiction in de facto financial causes
(1) Jurisdiction is conferred on:
(a) the Family Court; and
(b) the Federal Magistrates Court; and
(c) the Supreme Court of the Northern Territory of Australia; and
(d) each court of summary jurisdiction of each Territory;
with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act.
Note 1: The exercise of this jurisdiction by the Family Court is subject to section 40.
Note 2: The exercise of this jurisdiction by the Federal Magistrates Court is subject to section 40A.
Note 3: The exercise of this jurisdiction by a Territory court is subject to sections 39C, 39D, 39E and 39F.
(2) Each court of summary jurisdiction of each referring State is invested with federal jurisdiction with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act.
Note: The exercise of this jurisdiction by a State court is subject to sections 39D and 39E.
(3) This section has effect subject to this Part.
39C Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia
(1) The Governor‑General may, by Proclamation, fix a day as the day on and after which a de facto financial cause:
(a) may not be instituted in, or transferred to, the Supreme Court of the Northern Territory of Australia; or
(b) may be so instituted or transferred only where specified conditions are complied with.
(2) Without limiting the generality of subsection (1), 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, the Supreme Court of the Northern Territory of Australia.
(3) The Supreme Court of the Northern Territory of Australia must not hear and determine de facto financial causes otherwise than in accordance with any Proclamation in force under subsection (1).
39D Ceasing jurisdiction of State or Territory courts of summary jurisdiction
(1) The Governor‑General may, by Proclamation, fix a day as the day on and after which a de facto financial cause may not be instituted in, or transferred to, a court of summary jurisdiction in a specified participating jurisdiction.
(2) Without limiting the generality of subsection (1), 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 participating jurisdiction;
(c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.
(3) A court of summary jurisdiction must not hear and determine de facto financial causes otherwise than in accordance with any Proclamation in force under subsection (1).
39E Revoking Proclamations ceasing jurisdiction of State or Territory courts
(1) The Governor‑General may, by Proclamation, declare that a Proclamation under section 39C or 39D is revoked on and from a specified day.
(2) If, under subsection (1), the Governor‑General declares that a Proclamation under section 39C or 39D is revoked:
(a) this Part (including sections 39C and 39D) 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.
39F 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 a de facto financial cause 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.
39G 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.
Division 3—Other provisions
40 Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts
(1) The regulations may provide that, from a date specified in the regulations (not being a date before the regulations are registered under the Legislative Instruments Act 2003), the jurisdiction of the Family Court under this Act in relation to all proceedings, or a specified class of proceedings, must not be exercised in a specified State or Territory, or in 2 or more specified States and Territories.
(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 subsection (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
(1) 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 protection 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.
(2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.
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.
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
(b) a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she 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 under this Act in relation to the marriage.
(1B) For the purposes of subsection (1):
(a) a de facto financial cause instituted in relation to a de facto relationship; and
(b) proceedings relating to an application, by the bankruptcy trustee of one of the parties to the de facto relationship, under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act;
are taken to be proceedings under this Act in relation to the same matter.
(1C) For the purposes of subsection (1), the first proceedings set out in each item of following table, and the second proceedings set out in that item, are taken to relate to the same matter if one of the parties to each marriage, void marriage or de facto relationship referred to in that item is the same.
| Proceedings relating to the same matter |
| Item | First proceedings | Second proceedings |
| 1 | a matrimonial cause instituted in relation to a marriage (or void marriage) | a de facto financial cause instituted in relation to a de facto relationship |
| 2 | a de facto financial cause instituted in relation to a de facto relationship | a de facto financial cause instituted in relation to a de facto relationship |
(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 VI—Divorce 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 an application for leave to appeal, against:
(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 intervention, or an 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
(c) 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; or
(d) a review by the Family Court of Australia of the making, by a Registrar or a Judicial Registrar of that Court, of:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(iii) an order determining an application under section 57 or 58 for rescission of the divorce order; or
(e) a review by the Federal Magistrates Court of the making, by a Registrar of that Court, of:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(iii) an order determining an application under section 57 or 58 for rescission of the divorce order; or
(f) a review by the Family Court of Western Australia of the making, by the Principal Registrar, a Registrar, or a Deputy Registrar, of that Court of:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(iii) an order determining an application under section 57 or 58 for rescission of the divorce order.
(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 VII—Children
Division 1—Introductory
Subdivision A—What 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
(aa) provisions dealing with the best interests of the child in court proceedings (Subdivision BA); and
(ab) provisions dealing with an adviser’s obligations in relation to the best interests of the child (Subdivision BB); 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); and
(d) provisions about the use of family dispute resolution before applying for an order under this Part (Subdivision E).
Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12.
Subdivision B—Object, 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.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
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 · best interests of the child: court proceedings · best interests of the child: adviser’s obligations · interpretation and application of this Part · how this Act applies to certain children · family dispute resolution Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12. |
| 2 |