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Family Law Act 1975

Authoritative Version
  • - C2015C00552
  • In force - Superseded Version
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Act No. 53 of 1975 as amended, taking into account amendments up to Civil Law and Justice (Omnibus Amendments) Act 2015
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
Administered by: Attorney-General's; Social Services
Registered 30 Oct 2015
Start Date 14 Oct 2015
End Date 04 Mar 2016
Table of contents.

Family Law Act 1975

No. 53, 1975

Compilation No. 75

Compilation date:                              14 October 2015

Includes amendments up to:            Act No. 132, 2015

Registered:                                         30 October 2015

 

About this compilation

This compilation

This is a compilation of the Family Law Act 1975 that shows the text of the law as amended and in force on 14 October 2015 (the compilation date).

This compilation was prepared on 21 October 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part I—Preliminary                                                                                                              1

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

2............................ Commencement.................................................................. 1

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

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

4AA...................... De facto relationships....................................................... 31

4AB....................... Definition of family violence etc........................................ 33

4A......................... Third party proceedings to set aside financial agreement.. 34

4B.......................... Third party proceedings to set aside Part VIIIAB financial agreement     35

4C.......................... Meaning of proceeds of crime authority........................... 37

5............................ Debtor subject to a personal insolvency agreement........... 39

6............................ Polygamous marriages...................................................... 39

7............................ Extension of Act to certain Territories.............................. 39

7A......................... Application of the Criminal Code..................................... 39

8............................ Supersession of existing laws........................................... 40

9............................ Transitional....................................................................... 40

Part IA—Protection of names                                                                                      44

9A......................... Use of protected names and symbols................................ 44

Part II—Non‑court based family services                                                             46

Division 1—Accreditation of family counsellors, family dispute resolution practitioners and other family service providers                                                                                46

10A....................... Accreditation Rules........................................................... 46

Division 2—Family counselling                                                                             48

10B........................ Definition of family counselling........................................ 48

10C........................ Definition of family counsellor......................................... 48

10D....................... Confidentiality of communications in family counselling. 49

10E........................ Admissibility of communications in family counselling and in referrals from family counselling           50

Division 3—Family dispute resolution                                                               52

10F........................ Definition of family dispute resolution............................. 52

10G....................... Definition of family dispute resolution practitioner.......... 52

10H....................... Confidentiality of communications in family dispute resolution               53

10J......................... Admissibility of communications in family dispute resolution and in referrals from family dispute resolution.......................................................................................... 54

10K........................ Family dispute resolution practitioners must comply with regulations     55

Division 4—Arbitration                                                                                             56

10L........................ Definition of arbitration................................................... 56

10M....................... Definition of arbitrator.................................................... 56

10N....................... Arbitrators may charge fees for their services................... 56

10P........................ Immunity of arbitrators..................................................... 57

Part III—Family consultants                                                                                         58

Division 1—About family consultants                                                                58

11A....................... Functions of family consultants........................................ 58

11B........................ Definition of family consultant......................................... 58

11C........................ Admissibility of communications with family consultants and referrals from family consultants            59

11D....................... Immunity of family consultants........................................ 60

Division 2—Courts’ use of family consultants                                              61

11E........................ Courts to consider seeking advice from family consultants 61

11F........................ Court may order parties to attend, or arrange for child to attend, appointments with a family consultant 62

11G....................... Consequences of failure to comply with order under section 11F            62

Part IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services                                                                                    64

Division 1—Introduction                                                                                          64

12A....................... Objects of this Part........................................................... 64

Division 2—Kind of information to be provided                                          65

12B........................ Prescribed information about non‑court based family services and court’s processes and services         65

12C........................ Prescribed information about reconciliation...................... 65

12D....................... Prescribed information about Part VII proceedings.......... 65

Division 3—Who must provide information, and when                           67

12E........................ Obligations on legal practitioners...................................... 67

12F........................ Obligations on principal executive officers of courts........ 68

12G....................... Obligations on family counsellors, family dispute resolution practitioners and arbitrators       68

Part IIIB—Court’s powers in relation to court and non‑court based family services     70

Division 1—Introduction                                                                                          70

13A....................... Objects of this Part........................................................... 70

Division 2—Help with reconciliation                                                                  71

13B........................ Court to accommodate possible reconciliations................. 71

Division 3—Referrals to family counselling, family dispute resolution and other family services         72

13C........................ Court may refer parties to family counselling, family dispute resolution and other family services         72

13D....................... Consequences of failure to comply with order under section 13C           73

Division 4—Court’s role in relation to arbitration of disputes            74

13E........................ Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration  74

13F........................ Court may make orders to facilitate arbitration of certain disputes           74

13G....................... Family Court and Federal Circuit Court may determine questions of law referred by arbitrator              74

13H....................... Awards made in arbitration may be registered in court..... 75

13J......................... Family Court or Federal Circuit Court can review registered awards       75

13K........................ Family Court and Federal Circuit Court may set aside registered awards                76

Part IV—The Family Court of Australia                                                              77

Division 1—Interpretation                                                                                       77

20.......................... Interpretation..................................................................... 77

Division 2—The Family Court of Australia                                                   78

21.......................... Creation of Court.............................................................. 78

21A....................... Divisions of Court............................................................ 78

21B........................ Arrangement of business of Court.................................... 78

Division 3—Judges                                                                                                       82

22.......................... Appointment, removal and resignation of Judges............. 82

23.......................... Seniority........................................................................... 84

24.......................... Absence or illness of Chief Judge.................................... 86

25.......................... Salary and allowances....................................................... 87

26.......................... Oath or affirmation of allegiance and office...................... 87

Division 4—Judicial Registrars                                                                            88

26A....................... Judicial Registrars............................................................. 88

26B........................ Powers of Judicial Registrars........................................... 88

26C........................ Review of decisions of Judicial Registrars....................... 89

26D....................... Exercise of delegated powers by Court............................. 90

26E........................ Application of the Legislative Instruments Act 2003 to rules of court      90

26F........................ Independence of Judicial Registrars.................................. 91

26G....................... Judicial Registrars hold office on full time or part time basis 91

26H....................... Qualifications for appointment etc.................................... 91

26I......................... Term of office................................................................... 91

26J......................... Remuneration and allowances........................................... 92

26JA...................... Leave of absence............................................................... 92

26K........................ Resignation....................................................................... 92

26L........................ Termination of appointment.............................................. 93

26M....................... Oath or affirmation of office............................................. 93

26N....................... Terms and conditions of appointment not provided for by Act                93

Division 5—Jurisdiction and exercise of jurisdiction                                94

27.......................... Place of sitting.................................................................. 94

27A....................... Change of venue............................................................... 94

28.......................... Exercise of jurisdiction..................................................... 94

30.......................... Court divided in opinion................................................... 95

31.......................... Original jurisdiction of Family Court................................ 96

33.......................... Jurisdiction in associated matters...................................... 97

33A....................... Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Circuit Court.......................................................................................... 97

33B........................ Discretionary transfer of proceedings to the Federal Circuit Court          98

33C........................ Mandatory transfer of proceedings to the Federal Circuit Court              99

34.......................... Issue of certain writs etc................................................. 100

35.......................... Contempt of court........................................................... 101

Division 6—Registries and officers                                                                   102

36.......................... Registries........................................................................ 102

37.......................... Officers of Court............................................................ 102

37A....................... Delegation of powers to Registrars................................. 102

37AA.................... Delegation to Registrars of powers exercisable by court as constituted in a particular way     107

37B........................ Independence of Registrars............................................. 107

37C........................ Oath or affirmation of office........................................... 109

Division 7—Practice and procedure                                                                 110

38.......................... Practice and procedure.................................................... 110

Part IVA—Management of the Court                                                                  111

Division 1—Management responsibilities of the Chief Judge and the Chief Executive Officer               111

38A....................... Management of administrative affairs of Court............... 111

38B........................ Chief Executive Officer.................................................. 111

Division 1AA—Application of the finance law                                            112

38BAA.................. Application of the finance law........................................ 112

Division 1A—Administration of Court’s family services                      113

38BA..................... Chief Executive Officer has functions of family consultants 113

38BB..................... Chief Executive Officer may delegate powers and functions that relate to family consultants  113

38BC..................... Chief Executive Officer may give directions that relate to family services functions                113

38BD..................... Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner..................................................... 114

Division 2—Chief Executive Officer                                                                115

38C........................ Establishment and appointment of Chief Executive Officer 115

38D....................... Powers of Chief Executive Officer................................. 115

38E........................ Remuneration of Chief Executive Officer....................... 115

38F........................ Terms and conditions of appointment of Chief Executive Officer            116

38G....................... Leave of absence............................................................. 116

38H....................... Resignation..................................................................... 116

38J......................... Outside employment of Chief Executive Officer............ 116

38K........................ Termination of appointment............................................ 117

38L........................ Disclosure of interests by Chief Executive Officer......... 118

38M....................... Acting Chief Executive Officer....................................... 119

Division 3—Other officers and staff of Registries                                    120

38N....................... Personnel other than the Chief Executive Officer........... 120

38P........................ Marshal........................................................................... 121

38Q....................... Statutory Agency etc. for purposes of Public Service Act 121

38R........................ Engagement of consultants etc........................................ 122

Division 4—Miscellaneous administrative matters                                   123

38S........................ Annual report.................................................................. 123

38W....................... Delegation of administrative powers of Chief Judge...... 123

38X....................... Proceedings arising out of administration of Court......... 123

38Y....................... Protection of persons involved in handling etc. complaints 123

Part V—Jurisdiction of courts                                                                                   125

Division 1—Jurisdiction in matrimonial causes                                         125

39.......................... Jurisdiction in matrimonial causes.................................. 125

Division 2—Jurisdiction in de facto financial causes                               130

39A....................... Instituting proceedings.................................................... 130

39B........................ Jurisdiction in de facto financial causes.......................... 131

39C........................ Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia        131

39D....................... Ceasing jurisdiction of State or Territory courts of summary jurisdiction                132

39E........................ Revoking Proclamations ceasing jurisdiction of State or Territory courts                133

39F........................ Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory                133

39G....................... Jurisdiction in relation to transferred matters under other Commonwealth laws      133

Division 3—Other provisions                                                                               134

40.......................... Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts         134

40A....................... Exercise of jurisdiction of Federal Circuit Court in certain States and Territories    135

41.......................... Establishment of State Family Courts............................. 135

42.......................... Law to be applied............................................................ 137

43.......................... Principles to be applied by courts................................... 138

44.......................... Institution of proceedings............................................... 138

44A....................... Proceedings for divorce order......................................... 143

45.......................... Stay and transfer of proceedings..................................... 143

46.......................... Transfer of proceedings from court of summary jurisdiction in certain cases          145

47.......................... Courts to act in aid of each other..................................... 147

Part VI—Divorce and nullity of marriage                                                          148

48.......................... Divorce........................................................................... 148

49.......................... Meaning of separation.................................................... 148

50.......................... Effect of resumption of cohabitation............................... 148

51.......................... Nullity of marriage.......................................................... 149

52.......................... Court not to make divorce order where application for decree of nullity before it    149

53.......................... Circumstances occurring before commencement of Act or outside Australia           149

55.......................... When divorce order takes effect...................................... 149

55A....................... Divorce order where children......................................... 152

56.......................... Certificate as to divorce order......................................... 153

57.......................... Rescission of divorce order where parties reconciled..... 153

58.......................... Rescission of divorce order on ground of miscarriage of justice              153

59.......................... Re‑marriage.................................................................... 154

Part VII—Children                                                                                                           155

Division 1—Introductory                                                                                       155

Subdivision A—What this Division does                                                          155

60A....................... What this Division does.................................................. 155

Subdivision B—Object, principles and outline                                               155

60B........................ Objects of Part and principles underlying it.................... 155

60C........................ Outline of Part................................................................ 157

Subdivision BA—Best interests of the child: court proceedings                 161

60CA..................... Child’s best interests paramount consideration in making a parenting order            161

60CB..................... Proceedings to which Subdivision applies...................... 161

60CC..................... How a court determines what is in a child’s best interests 161

60CD..................... How the views of a child are expressed.......................... 164

60CE..................... Children not required to express views........................... 165

60CF..................... Informing court of relevant family violence orders......... 165

60CG..................... Court to consider risk of family violence........................ 165

60CH..................... Informing court of care arrangements under child welfare laws               166

60CI...................... Informing court of notifications to, and investigations by, prescribed State or Territory agencies           166

Subdivision BB—Best interests of the child: adviser’s obligations           167

60D....................... Adviser’s obligations in relation to best interests of the child  167

Subdivision C—Interpretation and application of Part                               168

60E........................ Application of Part to void marriages............................. 168

Subdivision D—Interpretation—how this Act applies to certain children 168

60EA..................... Definition of de facto partner......................................... 168

60F........................ Certain children are children of marriage etc................... 169

60G....................... Family Court may grant leave for adoption proceedings by prescribed adopting parent          170

60H....................... Children born as a result of artificial conception procedures 170

60HA.................... Children of de facto partners........................................... 171

60HB..................... Children born under surrogacy arrangements................. 172

Subdivision E—Family dispute resolution                                                      173

60I......................... Attending family dispute resolution before applying for Part VII order   173

60J......................... Family dispute resolution not attended because of child abuse or family violence   177

Division 2—Parental responsibility                                                                   179

61A....................... What this Division does.................................................. 179

61B........................ Meaning of parental responsibility................................. 179

61C........................ Each parent has parental responsibility (subject to court orders)              179

61D....................... Parenting orders and parental responsibility................... 180

61DA.................... Presumption of equal shared parental responsibility when making parenting orders               180

61DB..................... Application of presumption of equal shared parental responsibility after interim parenting order made   181

61E........................ Effect of adoption on parental responsibility................... 181

61F........................ Application to Aboriginal or Torres Strait Islander children 181

Division 3—Reports relating to children under 18                                   183

62A....................... What this Division does.................................................. 183

62B........................ Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services................................ 183

62G....................... Reports by family consultants......................................... 183

Division 4—Parenting plans                                                                                  185

63A....................... What this Division does.................................................. 185

63B........................ Parents encouraged to reach agreement........................... 185

63C........................ Meaning of parenting plan and related terms................. 185

63CAA.................. Parenting plans may include child support provisions.... 187

63D....................... Parenting plan may be varied or revoked by further written agreement    188

63DA.................... Obligations of advisers................................................... 188

63DB..................... Registered parenting plans.............................................. 190

63E........................ Registration of a revocation of a registered parenting plan 191

63F........................ Child welfare provisions of registered parenting plans... 192

63G....................... Child maintenance provisions of registered parenting plans—where not enforceable as maintenance agreements...................................................................... 193

63H....................... Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans     194

Division 5—Parenting orders—what they are                                            196

64A....................... What this Division does.................................................. 196

64B........................ Meaning of parenting order and related terms............... 196

64C........................ Parenting orders may be made in favour of parents or other persons       198

64D....................... Parenting orders subject to later parenting plans............. 198

Division 6—Parenting orders other than child maintenance orders 200

Subdivision A—Introductory                                                                              200

65A....................... What this Division does.................................................. 200

65AA.................... Child’s best interests paramount consideration in making a parenting order            200

65B........................ Division does not apply to child maintenance orders...... 201

Subdivision B—Applying for and making parenting orders                      201

65C........................ Who may apply for a parenting order............................. 201

65D....................... Court’s power to make parenting order.......................... 201

65DAA................. Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.................................................................. 202

65DAB.................. Court to have regard to parenting plans.......................... 205

65DAC.................. Effect of parenting order that provides for shared parental responsibility                205

65DAE.................. No need to consult on issues that are not major long‑term issues            206

65DA.................... Parenting orders.............................................................. 206

65F........................ General requirements for counselling before parenting order made         207

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........... 208

65H....................... Children who are 18 or over or who have married or entered de facto relationships                208

65J......................... Effect of adoption on parenting order............................. 209

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............ 209

65L........................ Family consultants may be required to supervise or assist compliance with parenting orders  210

65LA..................... Court may order attendance at a post‑separation parenting program        210

65LB..................... Conditions for providers of post‑separation parenting programs             211

Subdivision C—General obligations created by certain parenting orders 212

65M....................... General obligations created by parenting order that deals with whom a child lives with          212

65N....................... General obligations created by parenting order that deals with whom a child spends time with               213

65NA.................... General obligations created by parenting order that deals with whom a child communicates with           213

65P........................ General obligations created by parenting order that allocates parental responsibility                213

65Q....................... Court may issue warrant for arrest of alleged offender... 214

Subdivision D—Dealing with people who have been arrested                    214

65R........................ Situation to which Subdivision applies........................... 214

65S........................ Arrested person to be brought before a court.................. 215

65T........................ Obligation of court—where application before it to deal with contravention            216

65U....................... Obligation of court—where no application before it, but application before another court, to deal with contravention.................................................................. 216

65V....................... Obligation of court—where no application before any court to deal with contravention          217

65W....................... Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b)        217

Subdivision E—Obligations under parenting orders relating to taking or sending children from Australia        218

65X....................... Interpretation................................................................... 218

65Y....................... Obligations if certain parenting orders have been made.. 218

65Z........................ Obligations if proceedings for the making of certain parenting orders are pending  219

65ZA..................... Obligations of owners etc. of aircraft and vessels if certain parenting orders made 220

65ZB..................... Obligations of owners etc. of aircraft and vessels if proceedings for the making of certain parenting orders are pending........................................................................... 221

65ZC..................... General provisions applicable to sections 65ZA and 65ZB 222

65ZD..................... State or Territory laws stopping children leaving Australia not affected  223

Division 7—Child maintenance orders                                                            224

Subdivision A—What this Division does                                                          224

66A....................... What this Division does.................................................. 224

Subdivision B—Objects and principles                                                             224

66B........................ Objects............................................................................ 224

66C........................ Principles—parents have primary duty to maintain......... 225

66D....................... Principles—when step‑parents have a duty to maintain.. 225

Subdivision C—Relationship with Child Support (Assessment) Act          226

66E........................ Child maintenance order not to be made etc. if application for administrative assessment of child support could be made........................................................................... 226

Subdivision D—Applying for and making child maintenance orders      226

66F........................ Who may apply for a child maintenance order................ 226

66G....................... Court’s power to make child maintenance order............. 227

66H....................... Approach to be taken in proceedings for child maintenance order           227

66J......................... Matters to be taken into account in considering financial support necessary for maintenance of child     227

66K........................ Matters to be taken into account in determining contribution that should be made by party etc.               228

66L........................ Children who are 18 or over........................................... 230

66M....................... When step‑parents have a duty to maintain..................... 231

66N....................... Determining financial contribution of step‑parent........... 231

Subdivision E—Other aspects of courts’ powers                                            232

66P........................ General powers of court................................................. 232

66Q....................... Urgent child maintenance orders..................................... 233

66R........................ Specification in orders of payments etc. for child maintenance purposes 233

66S........................ Modification of child maintenance orders....................... 234

Subdivision EA—Varying the maintenance of certain children                237

66SA..................... Varying the maintenance of certain children................... 237

Subdivision F—When child maintenance orders stop being in force       238

66T........................ Effect of child turning 18................................................ 238

66U....................... Effect of death of child, person liable to pay or person entitled to receive                238

66V....................... Effect of adoption, marriage or entering into a de facto relationship         239

66VA.................... Children who are 18 or over: change of circumstances... 240

66W....................... Recovery of arrears......................................................... 240

Subdivision G—Recovery of amounts paid under maintenance orders  241

66X....................... Recovery of amounts paid, and property transferred or settled, under maintenance orders      241

Division 8—Other matters relating to children                                          244

Subdivision A—What this Division does                                                          244

67A....................... What this Division does.................................................. 244

Subdivision B—Father’s liability to contribute towards child bearing expenses if not married to mother            244

67B........................ Father liable to contribute towards maintenance and expenses of mother 244

67C........................ Matters to be taken into account in proceedings under Subdivision         245

67D....................... Powers of court in proceedings under Subdivision........ 245

67E........................ Urgent orders.................................................................. 246

67F........................ Who may institute proceedings....................................... 247

67G....................... Time limit for institution of proceedings......................... 247

Subdivision C—Location and recovery of children                                      247

67J......................... Meaning of location order and Commonwealth information order         247

67K........................ Who may apply for a location order................................ 248

67L........................ Child’s best interests paramount consideration in making a location order              248

67M....................... Provisions about location orders, other than Commonwealth information orders    249

67N....................... Provisions about Commonwealth information orders..... 249

67P........................ Information provided under location order not to be disclosed except to limited persons        251

67Q....................... Meaning of recovery order............................................. 252

67R........................ How recovery orders authorise or direct people............. 253

67S........................ How recovery orders to stop and search etc. name or describe vehicles, places etc.                254

67T........................ Who may apply for a recovery order.............................. 254

67U....................... Court’s power to make recovery order........................... 255

67V....................... Child’s best interests paramount consideration in making a recovery order             255

67W....................... How long recovery order remains in force..................... 255

67X....................... Persons not to prevent or hinder taking of action under recovery order   255

67Y....................... Obligation to notify persons of child’s return................. 256

Subdivision D—Allegations of child abuse and family violence                257

67Z........................ Where interested person makes allegation of child abuse 257

67ZA..................... Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc.................................................. 258

67ZB..................... No liability for notification under section 67Z or 67ZA.. 259

67ZBA.................. Where interested person makes allegation of family violence.. 260

67ZBB................... Court to take prompt action in relation to allegations of child abuse or family violence           261

Subdivision E—Other orders about children                                                  262

67ZC..................... Orders relating to welfare of children............................. 262

67ZD..................... Orders for delivery of travel documents......................... 263

Division 9—Injunctions                                                                                           264

68A....................... What this Division does.................................................. 264

68B........................ Injunctions...................................................................... 264

68C........................ Powers of arrest.............................................................. 265

Division 10—Independent representation of child’s interests             266

68L........................ Court order for independent representation of child’s interests                266

68LA..................... Role of independent children’s lawyer............................ 267

68M....................... Order that child be made available for examination......... 269

Division 11—Family violence                                                                               270

68N....................... Purposes of this Division............................................... 270

68P........................ Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order......................................... 270

68Q....................... Relationship of order or injunction made under this Act with existing inconsistent family violence order........................................................................................ 272

68R........................ Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act........................ 273

68S........................ Application of Act and Rules when exercising section 68R power          275

68T........................ Special provisions relating to proceedings to make an interim (or interim variation of) family violence order........................................................................................ 276

Division 12—Proceedings and jurisdiction                                                   277

Subdivision A—What this Division does                                                          277

69A....................... What this Division does.................................................. 277

Subdivision B—Institution of proceedings and procedure                          277

69B........................ Certain proceedings to be instituted only under this Part 277

69C........................ Who may institute proceedings....................................... 277

69D....................... Institution of maintenance proceedings by authorised authority or person               278

69E........................ Child or parent to be present in Australia etc.................. 278

69F........................ Applicant may be in contempt......................................... 279

Subdivision C—Jurisdiction of courts                                                              279

69G....................... Interpretation................................................................... 279

69H....................... Jurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Circuit Court............................................................................... 279

69J......................... Jurisdiction of courts of summary jurisdiction................ 280

69K........................ Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory                281

69L........................ Jurisdiction in relation to transferred matters under other Commonwealth laws      281

69M....................... Jurisdiction is additional to other jurisdiction.................. 281

69N....................... Transfer of proceedings from courts of summary jurisdiction in certain cases         282

Subdivision D—Presumptions of parentage                                                    283

69P........................ Presumptions of parentage arising from marriage........... 283

69Q....................... Presumption of paternity arising from cohabitation........ 284

69R........................ Presumption of parentage arising from registration of birth 284

69S........................ Presumptions of parentage arising from findings of courts 285

69T........................ Presumption of paternity arising from acknowledgments 286

69U....................... Rebuttal of presumptions etc........................................... 286

Subdivision E—Parentage evidence                                                                  286

69V....................... Evidence of parentage..................................................... 286

69VA.................... Declarations of parentage................................................ 287

69W....................... Orders for carrying out of parentage testing procedures. 287

69X....................... Orders associated with parentage testing orders............. 288

69XA.................... Matters related particularly to parentage testing for purposes of an international agreement or arrangement........................................................................................ 288

69Y....................... Orders directed to persons 18 or over............................. 289

69Z........................ Orders directed to children under 18............................... 289

69ZA..................... No liability if parent etc. consents................................... 290

69ZB..................... Regulations about carrying out, and reporting on, parentage testing procedures      290

69ZC..................... Reports of information obtained may be received in evidence  291

69ZD..................... Parentage testing for purposes of international maintenance agreements  291

Subdivision F—Extension, application and additional operation of Part 292

69ZE...................... Extension of Part to the States........................................ 292

69ZF...................... Unless declaration in force, Part’s extension to a State has effect subject to modifications      293

69ZG..................... Application of Part in, and in relation to, Territories....... 294

69ZH..................... Additional application of Part......................................... 294

69ZJ...................... Additional jurisdiction of courts..................................... 295

69ZK..................... Child welfare laws not affected....................................... 296

Division 12A—Principles for conducting child‑related proceedings 297

Subdivision A—Proceedings to which this Division applies                        297

69ZM.................... Proceedings to which this Division applies.................... 297

Subdivision B—Principles for conducting child‑related proceedings      298

69ZN..................... Principles for conducting child‑related proceedings........ 298

69ZO..................... This Division also applies to proceedings in Chambers.. 299

69ZP...................... Powers under this Division may be exercised on court’s own initiative  299

Subdivision C—Duties and powers related to giving effect to the principles  299

69ZQ..................... General duties................................................................. 299

69ZR..................... Power to make determinations, findings and orders at any stage of proceedings     300

69ZS...................... Use of family consultants............................................... 301

Subdivision D—Matters relating to evidence                                                  301

69ZT...................... Rules of evidence not to apply unless court decides....... 301

69ZV..................... Evidence of children....................................................... 303

69ZW.................... Evidence relating to child abuse or family violence......... 303

69ZX..................... Court’s general duties and powers relating to evidence.. 305

Division 13—State, Territory and overseas orders                                 307

Subdivision A—What this Division does                                                          307

70A....................... What this Division does.................................................. 307

Subdivision B—Registration of State and Territory orders                       307

70C........................ General registration of orders made under law of prescribed State          307

70D....................... Registration of orders in a particular State...................... 307

70E........................ Effect of registration....................................................... 307

Subdivision C—Registration of overseas orders                                           308

70G....................... Registration of orders..................................................... 308

70H....................... Effect of registration—general........................................ 308

70J......................... Effect of registration on exercise of jurisdiction.............. 308

70K........................ Cancellation of registration if Subdivision C parenting order made         309

70L........................ Relationship between Australian orders and registered overseas child orders          309

Subdivision D—Transmission of Australian orders to overseas jurisdictions               311

70M....................... Registrar to send documents etc. to overseas jurisdiction 311

70N....................... Regulations may deal with sending Australian orders etc. to overseas jurisdiction  312

Division 13A—Consequences of failure to comply with orders, and other obligations, that affect children                                                                                                                    313

Subdivision A—Preliminary                                                                               313

70NAA................. Simplified outline of Division......................................... 313

70NAB.................. Application of Division.................................................. 313

70NAC.................. Meaning of contravened an order................................... 314

70NAD................. Requirements taken to be included in certain orders....... 314

70NAE.................. Meaning of reasonable excuse for contravening an order 315

70NAF.................. Standard of proof............................................................ 317

Subdivision B—Court’s power to vary parenting order                              317

70NBA.................. Variation of parenting order............................................ 317

70NBB.................. Effect of parenting plan................................................... 318

Subdivision C—Contravention alleged but not established                         319

70NCA.................. Application of Subdivision............................................. 319

70NCB.................. Costs............................................................................... 319

Subdivision D—Contravention established but reasonable excuse for contravention 320

70NDA................. Application of Subdivision............................................. 320

70NDB.................. Order compensating person for time lost........................ 321

70NDC.................. Costs............................................................................... 321

Subdivision E—Contravention without reasonable excuse (less serious contravention)             322

70NEA.................. Application of Subdivision............................................. 322

70NEB.................. Powers of court.............................................................. 323

70NEC.................. Bonds............................................................................. 326

70NECA............... Procedure for enforcing bonds....................................... 327

70NED.................. Duties of provider of post‑separation parenting program 328

70NEF................... Evidence......................................................................... 328

70NEG.................. Court may make further orders in relation to attendance at program        329

Subdivision F—Contravention without reasonable excuse (more serious contravention)          329

70NFA.................. Application of Subdivision............................................. 329

70NFB.................. Powers of court.............................................................. 330

70NFC.................. When court is empowered to make a community service order                332

70NFD.................. Variation and discharge of community service orders.... 334

70NFE................... Bonds............................................................................. 334

70NFF................... Procedure for enforcing community service orders or bonds.. 335

70NFG.................. Sentences of imprisonment............................................. 336

70NFH.................. Relationship between Subdivision and other laws.......... 338

70NFI.................... Arrangements with States and Territories for carrying out of sentences and orders 338

70NFJ................... Subdivision does not limit operation of section 105....... 338

Division 14—Miscellaneous                                                                                   339

70P........................ What this Division does.................................................. 339

70Q....................... Certain instruments not liable to duty.............................. 339

Part VIII—Property, spousal maintenance and maintenance agreements             341

71.......................... Interpretation................................................................... 341

71A....................... This Part does not apply to certain matters covered by binding financial agreements               341

72.......................... Right of spouse to maintenance...................................... 341

74.......................... Power of court in spousal maintenance proceedings....... 342

75.......................... Matters to be taken into consideration in relation to spousal maintenance                344

77.......................... Urgent spousal maintenance cases.................................. 346

77A....................... Specification in orders of payments etc. for spouse maintenance purposes              346

78.......................... Declaration of interests in property................................. 347

79.......................... Alteration of property interests....................................... 347

79A....................... Setting aside of orders altering property interests........... 356

79B........................ Notification of proceeds of crime orders etc................... 359

79C........................ Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.    360

79D....................... Lifting a stay................................................................... 361

79E........................ Intervention by proceeds of crime authority.................... 361

79F........................ Notifying third parties about application......................... 362

79G....................... Notifying bankruptcy trustee etc. about application under section 74, 78, 79 or 79A              362

79H....................... Notifying court about bankruptcy etc.............................. 362

79J......................... Notifying non‑bankrupt spouse about application under section 139A of the Bankruptcy Act 1966        364

80.......................... General powers of court................................................. 365

81.......................... Duty of court to end financial relations........................... 366

82.......................... Cessation of spousal maintenance orders........................ 366

83.......................... Modification of spousal maintenance orders................... 367

85A....................... Ante‑nuptial and post‑nuptial settlements....................... 370

86A....................... Certain maintenance agreements ineffective.................... 370

86.......................... Registered maintenance agreements................................ 370

87.......................... Operation of maintenance agreements entered into in substitution for rights under Act           372

87A....................... Specification in maintenance agreements of payments etc. for maintenance purposes              377

88.......................... Enforcement of maintenance agreements........................ 378

89.......................... Overseas maintenance agreements.................................. 378

89A....................... Institution of spousal maintenance proceedings by authority or person   378

90.......................... Certain instruments not liable to duty.............................. 379

Part VIIIAA—Orders and injunctions binding third parties                 381

Division 1—Preliminary                                                                                          381

Subdivision A—Scope of this Part                                                                     381

90AA.................... Object of this Part........................................................... 381

90AB..................... Definitions...................................................................... 381

90AC..................... This Part overrides other laws, trust deeds etc................ 381

90ACA.................. This Part not to apply to certain annuities....................... 382

90AD.................... Extended meaning of matrimonial cause and property.. 382

90ADA................. Other provisions of this Act not affected by this Part..... 382

Division 2—Orders under section 79                                                               383

90AE..................... Court may make an order under section 79 binding a third party             383

Division 3—Orders or injunctions under section 114                             385

90AF..................... Court may make an order or injunction under section 114 binding a third party      385

Division 4—Other matters                                                                                     388

90AG.................... Orders and injunctions binding on trustees..................... 388

90AH.................... Protection for a third party.............................................. 388

90AI...................... Service of documents on a third party............................. 388

90AJ...................... Expenses of third party................................................... 388

90AK..................... Acquisition of property................................................... 389

Part VIIIA—Financial agreements                                                                         390

90A....................... Definitions...................................................................... 390

90B........................ Financial agreements before marriage............................. 390

90C........................ Financial agreements during marriage............................. 391

90D....................... Financial agreements after divorce order is made............ 392

90DA.................... Need for separation declaration for certain provisions of financial agreement to take effect     393

90DB..................... Whether or when certain other provisions of financial agreements take effect         394

90E........................ Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children.............................................................. 394

90F........................ Certain provisions in agreements.................................... 395

90G....................... When financial agreements are binding........................... 395

90H....................... Effect of death of party to financial agreement................ 396

90J......................... Termination of financial agreement................................. 397

90K........................ Circumstances in which court may set aside a financial agreement or termination agreement  398

90KA..................... Validity, enforceability and effect of financial agreements and termination agreements           401

90L........................ Financial and other agreements etc. not liable to duty..... 402

90M....................... Notification of proceeds of crime orders etc................... 402

90N....................... Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.    403

90P........................ Lifting a stay................................................................... 404

90Q....................... Intervention by proceeds of crime authority.................... 405

Part VIIIAB—Financial matters relating to de facto relationships    406

Division 1—Preliminary                                                                                          406

Subdivision A—Meaning of key terms                                                             406

90RA..................... Participating jurisdictions................................................ 406

90RB..................... Meaning of child of a de facto relationship.................... 407

Subdivision B—Relationship with State and Territory laws                       407

90RC..................... Relationship with State and Territory laws..................... 407

Subdivision C—Declarations about existence of de facto relationships  409

90RD..................... Declarations about existence of de facto relationships.... 409

90RE..................... Effect of declarations...................................................... 410

90RF..................... Applying for declarations............................................... 410

90RG..................... Geographical requirement............................................... 410

90RH..................... Setting aside declarations................................................ 410

Division 2—Maintenance, declarations of property interests and alterations of property interests     412

Subdivision A—Application of Division                                                           412

90SA..................... This Division does not apply to certain matters covered by binding financial agreements       412

90SB..................... When this Division applies—length of relationship etc.. 413

90SC..................... This Division ceases to apply in relation to a de facto relationship if the parties marry each other           413

Subdivision B—Maintenance                                                                              414

90SD..................... Geographical requirement............................................... 414

90SE...................... Power of court in maintenance proceedings.................... 415

90SF...................... Matters to be taken into consideration in relation to maintenance             417

90SG..................... Urgent maintenance cases............................................... 420

90SH..................... Specification in orders of payments etc. for maintenance purposes          421

90SI....................... Modification of maintenance orders................................ 422

90SJ...................... Cessation of maintenance orders..................................... 424

Subdivision C—Declarations and alterations of property interests          425

90SK..................... Geographical requirement............................................... 425

90SL...................... Declaration of interests in property................................. 426

90SM.................... Alteration of property interests....................................... 427

90SN..................... Varying and setting aside orders altering property interests 435

Subdivision D—Notification of application                                                    438

90SO..................... Notifying third parties about application......................... 438

90SP...................... Notifying bankruptcy trustee etc. about application under section 90SE, 90SL, 90SM or 90SN             439

90SQ..................... Notifying court about bankruptcy etc.............................. 439

90SR..................... Notifying non‑bankrupt de facto party about application under section 139A of the Bankruptcy Act 1966........................................................................................ 441

Subdivision E—Court powers                                                                             441

90SS...................... General powers of court................................................. 441

90ST...................... Duty of court to end financial relations........................... 444

Division 3—Orders and injunctions binding third parties                    445

90TA..................... Orders and injunctions binding third parties................... 445

Division 4—Financial agreements                                                                     447

90UA.................... Geographical requirement for agreements made in participating jurisdictions          447

90UB..................... Financial agreements before de facto relationship........... 447

90UC..................... Financial agreements during de facto relationship........... 448

90UD.................... Financial agreements after breakdown of a de facto relationship              449

90UE..................... Agreements made in non‑referring States that become Part VIIIAB financial agreements       450

90UF..................... Need for separation declaration for certain provisions of financial agreement to take effect     452

90UG.................... Whether or when certain other provisions of financial agreements take effect         453

90UH.................... Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children.............................................................. 453

90UI...................... Certain provisions in financial agreements...................... 454

90UJ...................... When financial agreements are binding........................... 454

90UK..................... Effect of death of party to financial agreement................ 456

90UL..................... Termination of financial agreement................................. 456

90UM.................... Circumstances in which court may set aside a financial agreement or termination agreement  458

90UN.................... Validity, enforceability and effect of financial agreements and termination agreements           462

Division 5—Proceeds of crime and forfeiture                                             463

90VA.................... Notification of proceeds of crime orders etc................... 463

90VB..................... Court to stay property or maintenance proceedings affected by proceeds of crime orders etc. 464

90VC..................... Lifting a stay................................................................... 465

90VD.................... Intervention by proceeds of crime authority.................... 465

Division 6—Instruments not liable to duty                                                    467

90WA.................... Certain instruments not liable to duty.............................. 467

Part VIIIB—Superannuation interests                                                                 468

Division 1—Preliminary                                                                                          468

Subdivision A—Scope of this Part                                                                     468

90MA.................... Object of this Part........................................................... 468

90MB.................... This Part overrides other laws, trust deeds etc................ 468

90MC.................... Extended meanings of matrimonial cause and de facto financial cause     469

Subdivision B—Interpretation                                                                            469

90MD.................... Definitions...................................................................... 469

90MDA................. Extended meaning of trustee........................................... 472

90ME.................... Splittable payments......................................................... 472

90MF.................... Reversionary interest...................................................... 473

90MG.................... Meaning of in force........................................................ 473

Division 2—Payment splitting or flagging by agreement                      474

Subdivision A—Superannuation agreements                                                  474

90MH.................... Superannuation agreement to be included in financial agreement if about a marriage               474

90MHA................. Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship........................................................................................ 474

Subdivision B—Payment splitting                                                                     475

90MI..................... Operative time for payment split..................................... 475

90MJ..................... Payment split under superannuation agreement or flag lifting agreement 476

Subdivision C—Payment flagging                                                                     477

90MK.................... Operative time for payment flag...................................... 477

90ML.................... Payment flag................................................................... 478

90MLA................. Some splittable payments payable if payment flag operating 479

90MM................... Payment flag may be terminated by court....................... 480

90MN.................... Flag lifting agreement etc................................................ 481

Subdivision D—Miscellaneous                                                                            482

90MO.................... Limitation on section 79 or 90SM order......................... 482

90MP.................... Separation declaration..................................................... 483

90MQ.................... Superannuation interests in excess of low rate cap amount 485

90MR.................... Enforcement by court order............................................ 486

Division 3—Payment splitting or flagging by court order                   487

90MS.................... Order under section 79 or 90SM may include orders in relation to superannuation interests   487

90MT.................... Splitting order................................................................. 487

90MU.................... Flagging order................................................................ 489

90MUA................. Some splittable payments may be made without leave of court                489

Division 4—General provisions about payment splitting                      491

90MV.................... Court may cancel payment split...................................... 491

90MW................... Deductions from splittable payment before calculating payment split      491

90MX.................... Multiple payment splits applying to the same splittable payment             491

90MY.................... Fees payable to trustee.................................................... 492

90MZ.................... Superannuation preservation requirements..................... 492

90MZA................. Waiver of rights under payment split.............................. 493

90MZB.................. Trustee to provide information........................................ 494

90MZC.................. Death of non‑member spouse......................................... 496

Division 5—Miscellaneous                                                                                     497

90MZD................. Orders binding on trustee............................................... 497

90MZE.................. Protection for trustee....................................................... 497

90MZF.................. Service of documents on trustee..................................... 498

90MZG................. False declarations............................................................ 498

90MZH................. Terminating employment because of payment flag etc.... 498

Part IX—Intervention                                                                                                     500

91.......................... Intervention by Attorney‑General................................... 500

91A....................... Delegation by Attorney‑General..................................... 500

91B........................ Intervention by child welfare officer............................... 501

92.......................... Intervention by other persons......................................... 501

92A....................... Intervention in child abuse cases..................................... 502

Part X—Appeals                                                                                                                 503

93.......................... No appeal after divorce order takes effect....................... 503

93A....................... Appellate jurisdiction of Family Court............................ 503

94.......................... Appeals to Family Court from courts other than Federal Circuit Court and Magistrates Court of Western Australia......................................................................... 503

94AAA................. Appeals to Family Court from Federal Circuit Court and Magistrates Court of Western Australia         506

94AAB.................. Appeals, and applications for leave, without oral hearing 508

94AA.................... Leave to appeal needed in some cases............................. 509

94AB..................... Appeals relating to court security orders......................... 510

94A....................... Case stated...................................................................... 511

95.......................... Appeals to High Court.................................................... 512

96.......................... Appeals from courts of summary jurisdiction................. 513

96AA.................... Appeal may be dismissed if no reasonable prospect of success               514

96A....................... Part does not apply to section 111C jurisdiction............. 514

Part XI—Procedure and evidence                                                                           515

Division 1—General matters concerning procedure and evidence  515

97.......................... Procedure........................................................................ 515

98.......................... Evidence by affidavit...................................................... 516

98AA.................... Oaths and affirmations.................................................... 516

98AB..................... Swearing of affidavits etc............................................... 517

98A....................... Proceedings in absence of parties................................... 518

100........................ Evidence of husbands and wives.................................... 519

100B...................... Children swearing affidavits, being called as witnesses or being present in court    520

101........................ Protection of witnesses................................................... 520

102........................ Proof of birth, parentage, death or marriage.................... 520

102A..................... Restrictions on examination of children.......................... 521

102B...................... Assessors....................................................................... 522

Division 2—Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.                                 523

102C...................... Testimony....................................................................... 523

102D..................... Appearance of persons................................................... 524

102E...................... Making of submissions.................................................. 524

102F...................... Conditions for use of links............................................. 525

102G..................... Putting documents to a person........................................ 527

102H..................... Putting documents to a split court................................... 528

102J....................... Administration of oaths and affirmations........................ 529

102K...................... Expenses......................................................................... 530

102L...................... New Zealand proceedings............................................... 530

Division 3—Split court                                                                                             531

102M..................... Determination that there is to be a split court.................. 531

102N..................... Conditions for split court................................................ 531

Part XIA—Suppression and non‑publication orders                                  533

Division 1—Preliminary                                                                                          533

102P...................... Definitions...................................................................... 533

102PA................... Powers of a court not affected........................................ 534

102PB................... Other laws not affected................................................... 534

102PC................... Relationship with section 121......................................... 534

Division 2—Suppression and non‑publication orders                              535

102PD................... Safeguarding public interest in open justice.................... 535

102PE.................... Power to make orders..................................................... 535

102PF.................... Grounds for making an order......................................... 535

102PG................... Procedure for making an order....................................... 536

102PH................... Interim orders................................................................. 537

102PI..................... Duration of orders.......................................................... 537

102PJ.................... Exception for court officials............................................ 537

102PK................... Contravention of order.................................................... 538

Part XIB—Vexatious proceedings                                                                           539

Division 1—Preliminary                                                                                          539

102Q..................... Definitions...................................................................... 539

102QA.................. Powers of a court not affected........................................ 540

Division 2—Vexatious proceedings orders                                                   542

102QB................... Making vexatious proceedings orders............................ 542

102QC................... Notification of vexatious proceedings orders.................. 543

Division 3—Particular consequences of vexatious proceedings orders 544

102QD.................. Proceedings in contravention of vexatious proceedings order  544

102QE................... Application for leave to institute proceedings................. 545

102QF................... Dismissing application for leave..................................... 545

102QG.................. Granting application for leave......................................... 546

Part XII—Recognition of decrees                                                                            547

103........................ Decrees under this Act.................................................... 547

104........................ Overseas decrees............................................................ 547

104A..................... Recognition in external Territories.................................. 550

Part XIII—Enforcement of decrees                                                                       552

105........................ Enforcement generally.................................................... 552

106........................ Maintenance orders—more than 12 months in arrears.... 552

106A..................... Execution of instruments by order of court..................... 553

106B...................... Transactions to defeat claims.......................................... 554

107........................ People not to be imprisoned for failure to comply with certain orders     556

109........................ Inter‑State enforcement of child bearing expenses order. 556

109A..................... Rules of Court relating to enforcement........................... 557

109B...................... Rules of Court relating to enforcement—Federal Circuit Court               559

Part XIIIAA—International conventions, international agreements and international enforcement   560

Division 1—International maintenance orders and agreements etc. 560

110........................ Overseas enforcement of maintenance orders etc............ 560

110A..................... Registration and enforcement in Australia of overseas maintenance agreements etc.               563

110B...................... Transmission of agreements etc. to overseas jurisdictions 563

111........................ Convention on Recovery Abroad of Maintenance.......... 564

111A..................... Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations           564

111AA.................. Maintenance obligations with New Zealand................... 564

111AB................... Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations....... 565

Division 2—International child abduction                                                     566

111B...................... Convention on the Civil Aspects of International Child Abduction         566

Division 3—International agreements about adoption etc.                  569

111C...................... International agreements about adoption etc.................... 569

Division 4—International protection of children                                       571

Subdivision A—Preliminary                                                                               571

111CA................... Definitions...................................................................... 571

111CB................... Relationship between this Division and other provisions 574

Subdivision B—Jurisdiction for the person of a child                                  574

111CC................... Application of this Subdivision...................................... 574

111CD................... Jurisdiction relating to the person of a child.................... 574

111CE................... Limitation when a child is wrongfully removed from or retained outside a Convention country             576

111CF................... Limitations when prior proceedings pending in a Convention country    577

111CG................... If a court is asked to assume jurisdiction........................ 578

111CH................... Limitation if a competent authority of a Convention country is asked to assume jurisdiction   579

111CI.................... When a certain Commonwealth personal protection measure lapses        580

Subdivision C—Jurisdiction for decisions about a guardian of a child’s property      581

111CJ.................... Application of this Subdivision...................................... 581

111CK................... Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property             582

111CL................... Limitation when a child is wrongfully removed from or retained outside a Convention country             583

111CM.................. Limitations when prior proceedings pending in a Convention country    584

111CN................... If a court is asked to assume jurisdiction........................ 585

111CO................... Limitation if a competent authority of a Convention country is asked to assume jurisdiction   586

111CP................... When a certain Commonwealth property protection measure lapses        587

Subdivision D—Applicable law                                                                          588

111CQ................... Meaning of law............................................................... 588

111CR................... Applicable law generally................................................. 588

111CS................... Applicable law concerning parental responsibility.......... 589

Subdivision E—Recognition of foreign measures                                         591

111CT................... Effect of registered foreign measures.............................. 591

Subdivision F—Co‑operation                                                                              591

111CU................... Obligation to obtain consent to place child...................... 591

111CV................... Obligation to inform competent authority about serious danger to a child                592

111CW.................. Court proceedings dealing with whom a child spends time with              593

111CX................... Jurisdiction for a location order or a Commonwealth information order  593

111CY................... Giving information to central authorities and competent authorities in Convention countries  594

Subdivision G—Regulations                                                                                594

111CZ................... Regulations to implement the Convention....................... 594

Division 5—Other matters                                                                                     596

111D..................... Regulations may provide for rules of evidence............... 596

Part XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect children                                                                                                                 597

Division 1—Interpretation                                                                                     597

112AA.................. Interpretation................................................................... 597

112AB................... Meaning of contravene an order.................................... 598

112AC................... Meaning of reasonable excuse for contravening an order 599

Division 2—Sanctions for failure to comply with orders                      600

112AD.................. Sanctions for failure to comply with orders.................... 600

112AE................... Sentences of imprisonment............................................. 601

112AF................... Bonds............................................................................. 602

112AG.................. Additional sentencing alternatives................................... 603

112AH.................. Failure to comply with sentence passed, or order made, pursuant to paragraph 112AD(2)(b) 605

112AK................... Variation and discharge of orders................................... 606

112AM.................. Relationship between Division and other laws............... 606

112AN.................. Arrangements with States and Territories for carrying out of sentences and orders 607

112AO.................. Division does not limit operation of section 105............. 607

Part XIIIB—Contempt of court                                                                               608

112AP................... Contempt........................................................................ 608

Part XIV—Declarations and injunctions                                                            610

112A..................... Interpretation................................................................... 610

113........................ Proceedings for declarations........................................... 610

114........................ Injunctions...................................................................... 610

114AA.................. Powers of arrest.............................................................. 612

114AB................... Operation of State and Territory laws............................. 614

Part XIVA—The Australian Institute of Family Studies                          615

114A..................... Interpretation................................................................... 615

114B...................... Establishment of Institute................................................ 615

114C...................... Minister may give directions to Director......................... 616

114D..................... Appointment of Director................................................. 617

114E...................... Term of appointment....................................................... 617

114F...................... Acting appointments....................................................... 617

114G..................... Director’s remuneration.................................................. 617

114H..................... Outside employment....................................................... 618

114J....................... Leave of absence............................................................. 618

114L...................... Other terms and conditions............................................. 618

114LA................... Resignation..................................................................... 618

114LB................... Termination of appointment............................................ 618

114LD................... Delegation....................................................................... 619

114M..................... Staff................................................................................ 619

Part XV—Miscellaneous                                                                                                621

115........................ Family Law Council....................................................... 621

116C...................... Payments to legal practitioners by legal aid bodies......... 622

117........................ Costs............................................................................... 623

117AA.................. Costs in proceedings relating to overseas enforcement and international Conventions            625

117AC................... Security for costs............................................................ 626

117A..................... Reparation for certain losses and expenses relating to children                626

117B...................... Interest on moneys ordered to be paid............................ 627

117C...................... Offers of settlement........................................................ 628

118........................ Frivolous or vexatious proceedings................................ 629

119........................ Married persons may sue each other............................... 629

120........................ Criminal conversation, adultery and enticement.............. 629

121........................ Restriction on publication of court proceedings.............. 629

122........................ Rights of legal practitioners............................................ 633

122AA.................. Use of reasonable force in arresting persons.................. 633

122A..................... Powers of entry and search for purposes of arresting persons 634

122B...................... Arrangements with States and Territories....................... 634

123........................ Rules of Court................................................................ 635

124........................ Rules Advisory Committee............................................. 640

124A..................... Regulations in relation to overseas‑related maintenance obligations etc.  641

125........................ Regulations..................................................................... 642

Schedule 1—Child Protection Convention                                      644

Endnotes                                                                                                                                  672

Endnote 1—About the endnotes                                                                          672

Endnote 2—Abbreviation key                                                                              673

Endnote 3—Legislation history                                                                           674

Endnote 4—Amendment history                                                                         699


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 IPreliminary

  

1  Short title

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

2  Commencement

                   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 Circuit Court 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 Circuit Court of Australia—means the related Federal Circuit Court 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; 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 and the Federal Circuit 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).

complaint means a complaint mentioned in paragraph 21B(1A)(c).

complaint handler means:

                     (a)  the Chief Judge; or

                     (b)  a person who is authorised by the Chief Judge under subsection 21B(3A); or

                     (c)  a person who is a member of a body that is authorised by the Chief Judge under subsection 21B(3A).

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.

Federal Circuit Court means the Federal Circuit Court of Australia.

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.

handle a complaint means do one or more of the following acts relating to the complaint:

                     (a)  consider the complaint;

                     (b)  investigate the complaint;

                     (c)  report on an investigation of the complaint;

                     (d)  deal with a report of an investigation of the complaint;

                     (e)  dispose of the complaint;

                      (f)  refer the complaint to a person or body.

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 Courtthe Principal Registrar, a Registrar, or a Deputy Registrar of the Court; and

                     (b)  in relation to a court other than the Family Court—the principal legal officer of the court or any other appropriate officer of the court.

Registry Manager:

                     (a)  except in Subdivision C of Division 8 of Part VII and 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 Circuit Court Rules means the Rules of Court made under the Federal Circuit Court of Australia 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 belief: a person has a relevant belief in relation to a complaint about a Judge if:

                     (a)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated, justify consideration of the removal of the Judge in accordance with paragraph 72(ii) of the Constitution; or

                     (b)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated:

                              (i)  adversely affect, or have adversely affected, the performance of judicial or official duties by the Judge; or

                             (ii)  have the capacity to adversely affect, or have adversely affected, the reputation of the Court.

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 Circuit Court 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 Circuit Court 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 Circuit Court 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 Circuit Court 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 Circuit Court 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 Circuit Court 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 Circuit Court 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 IAProtection of names

  

9A  Use of protected names and symbols

             (1)  A person must not, without the Minister’s written consent:

                     (a)  use in relation to a business, trade, profession or occupation; or

                     (b)  use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or

                     (c)  apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or

                     (d)  use in relation to:

                              (i)  goods or services; or

                             (ii)  the promotion, by any means, of the supply or use of goods or services:

either:

                     (e)  a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or

                      (f)  a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it.

Penalty:  30 penalty units.

             (2)  Subsection (1), so far as it applies in relation to a particular protected name or protected symbol, does not affect rights conferred by law on a person in relation to:

                     (a)  a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995; or

                     (b)  a design registered under the Designs Act 2003;

that was so registered, or was registered under the Designs Act 1906, at the protection time in relation to the name or symbol.

             (3)  This section, so far as it applies in relation to a particular protected name or protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person:

                     (a)  was using the relevant name or symbol in good faith in that manner; or

                     (b)  would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first‑mentioned person.

             (4)  In this section:

protected name means a name prescribed for the purposes of this definition.

protected symbol means a symbol whose design is set out in the regulations.

protection time means:

                     (a)  in relation to a protected name—the time immediately before the commencement of the regulation prescribing the name; or

                     (b)  in relation to a protected symbol—the time immediately before the commencement of the regulation setting out the design of the symbol.

Part IINon‑court based family services

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

10A  Accreditation Rules

             (1)  The regulations may prescribe Accreditation Rules. These are rules relating to:

                     (a)  the accreditation of persons as family counsellors; and

                     (b)  the accreditation of persons as family dispute resolution practitioners; and

                     (c)  the accreditation of persons to perform other roles prescribed by regulations made for the purposes of this paragraph.

             (2)  Examples of matters that the Accreditation Rules may deal with are:

                     (a)  the standards that are to be met by persons who seek to be accredited; and

                     (b)  who is responsible for determining whether a person meets the Accreditation Rules; and

                     (c)  how accreditation is to be recognised (for example, by establishment of a register or other method); and

                     (d)  the standards and other obligations that accredited persons must continue to meet to remain accredited; and

                     (e)  who is responsible for monitoring compliance with ongoing requirements in the Rules; and

                      (f)  the consequences of accredited persons failing to comply with the provisions of this Act and the Rules; and

                     (g)  the obligations of accredited persons in relation to the monitoring of their compliance; and

                     (h)  how and by whom an accredited person may have his or her accreditation (or recognition of that accreditation) suspended or cancelled; and

                      (i)  review of decisions to refuse, suspend or cancel accreditation (or recognition of accreditation); and

                      (j)  the process for handling complaints involving accredited persons; and

                     (k)  who may deliver recognised training to accredited persons, and

                      (l)  dealing with individuals or other persons who make false or misleading representations about a person’s status as an accredited person.

Division 2Family counselling

10B  Definition of family counselling

                   Family counselling is a process in which a family counsellor helps:

                     (a)  one or more persons to deal with personal and interpersonal issues in relation to marriage; or

                     (b)  one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

                              (i)  personal and interpersonal issues;

                             (ii)  issues relating to the care of children.

10C  Definition of family counsellor

             (1)  A family counsellor is:

                     (a)  a person who is accredited as a family counsellor under the Accreditation Rules; or

                     (b)  a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or

                     (c)  a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family counsellor; or

                     (d)  a person who is authorised to act under section 93D of the Federal Circuit Court of Australia 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 a list of organisations designated for the purposes of paragraph (b) of the definition of family counsellor.

             (3)  An instrument under this section is not a legislative instrument.

10D  Confidentiality of communications in family counselling

             (1)  A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.

             (2)  A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

             (3)  A family counsellor may disclose a communication if consent to the disclosure is given by:

                     (a)  if the person who made the communication is 18 or over—that person; or

                     (b)  if the person who made the communication is a child under 18:

                              (i)  each person who has parental responsibility (within the meaning of Part VII) for the child; or

                             (ii)  a court.

             (4)  A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:

                     (a)  protecting a child from the risk of harm (whether physical or psychological); or

                     (b)  preventing or lessening a serious and imminent threat to the life or health of a person; or

                     (c)  reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

                     (d)  preventing or lessening a serious and imminent threat to the property of a person; or

                     (e)  reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

                      (f)  if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.

             (5)  A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.

             (6)  Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.

Note:          This means that the counsellor’s evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.

             (7)  Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961.

             (8)  In this section:

communication includes admission.

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

             (1)  Evidence of anything said, or any admission made, by or in the company of:

                     (a)  a family counsellor conducting family counselling; or

                     (b)  a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is not admissible:

                     (c)  in any court (whether or not exercising federal jurisdiction); or

                     (d)  in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).

             (2)  Subsection (1) does not apply to:

                     (a)  an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

                     (b)  a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

             (3)  Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961.

             (4)  A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.

Division 3Family dispute resolution

10F  Definition of family dispute resolution

                   Family dispute resolution is a process (other than a judicial process):

                     (a)  in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and

                     (b)  in which the practitioner is independent of all of the parties involved in the process.

10G  Definition of family dispute resolution practitioner

             (1)  A family dispute resolution practitioner is:

                     (a)  a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules; or

                     (b)  a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or

                     (c)  a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family dispute resolution practitioner; or

                     (d)  a person who is authorised to act under section 93D of the Federal Circuit Court of Australia 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 a list of organisations designated for the purposes of paragraph (b) of the definition of family dispute resolution practitioner.

             (3)  An instrument under this section is not a legislative instrument.

10H  Confidentiality of communications in family dispute resolution

             (1)  A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.

             (2)  A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

             (3)  A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:

                     (a)  if the person who made the communication is 18 or over—that person; or

                     (b)  if the person who made the communication is a child under 18:

                              (i)  each person who has parental responsibility (within the meaning of Part VII) for the child; or

                             (ii)  a court.

             (4)  A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:

                     (a)  protecting a child from the risk of harm (whether physical or psychological); or

                     (b)  preventing or lessening a serious and imminent threat to the life or health of a person; or

                     (c)  reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

                     (d)  preventing or lessening a serious and imminent threat to the property of a person; or

                     (e)  reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

                      (f)  if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.

             (5)  A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.

             (6)  A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).

             (7)  Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.

Note:          This means that the practitioner’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.

             (8)  In this section:

communication includes admission.

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

             (1)  Evidence of anything said, or any admission made, by or in the company of:

                     (a)  a family dispute resolution practitioner conducting family dispute resolution; or

                     (b)  a person (the professional) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is not admissible:

                     (c)  in any court (whether or not exercising federal jurisdiction); or

                     (d)  in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).

             (2)  Subsection (1) does not apply to:

                     (a)  an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

                     (b)  a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

             (3)  Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).

             (4)  A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.

10K  Family dispute resolution practitioners must comply with regulations

             (1)  The regulations may prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services they provide.

             (2)  The regulations may prescribe penalties not exceeding 10 penalty units in respect of offences against regulations made for the purposes of subsection (1).

Division 4Arbitration

10L  Definition of arbitration

             (1)  Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

             (2)  Arbitration may be either:

                     (a)  section 13E arbitration—which is arbitration of Part VIII proceedings, 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 IIIFamily consultants

Division 1About family consultants

11A  Functions of family consultants

                   The functions of family consultants are to provide services in relation to proceedings under this Act, including:

                     (a)  assisting and advising people involved in the proceedings; and

                     (b)  assisting and advising courts, and giving evidence, in relation to the proceedings; and

                     (c)  helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and

                     (d)  reporting to the court under sections 55A and 62G; and

                     (e)  advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.

Note:          See subsection 4(1AA) for people who are taken to be involved in proceedings.

11B  Definition of family consultant

A family consultant is a person who is:

                     (a)  appointed as a family consultant under section 38N; or

                     (b)  appointed as a family consultant in relation to the Federal Circuit Court of Australia under the Federal Circuit Court of Australia 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 Officer has 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 Circuit Court of Australia Act 1999.

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

             (1)  Evidence of anything said, or any admission made, by or in the company of:

                     (a)  a family consultant performing the functions of a family consultant; or

                     (b)  a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is admissible in proceedings under this Act.

Note 1:       Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).

Note 2:       Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.

             (2)  Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).

             (3)  Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:

                     (a)  it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

                     (b)  it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

11D  Immunity of family consultants

                   A family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.

Division 2Courts’ use of family consultants

11E  Courts to consider seeking advice from family consultants

             (1)  If, under this Act, a court has the power to:

                     (a)  order a person to attend family counselling or family dispute resolution; or

                     (b)  order a person to participate in a course, program or other service (other than arbitration); or

                     (c)  order a person to attend appointments with a family consultant; or

                     (d)  advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;

the court:

                     (e)  may, before exercising the power, seek the advice of:

                              (i)  if the court is the Family Court or the Federal Circuit Court of Australia—a family consultant nominated by the Chief Executive Officer; 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 IIIAObligations to inform people about non‑court based family services and about court’s processes and services

Division 1Introduction

12A  Objects of this Part

                   The objects of this Part are:

                     (a)  to ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation, in situations where a reconciliation between the couple seems a reasonable possibility; and

                     (b)  to ensure that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust to:

                              (i)  separation or divorce; and

                             (ii)  orders made under this Act; and

                     (c)  to ensure that people affected, or likely to be affected, by separation or divorce are informed about ways of resolving disputes other than by applying for orders under this Act.

Division 2Kind of information to be provided

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

             (1)  The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non‑court based family services and court’s processes and services.

             (2)  Without limitation, information prescribed under this section must include information about:

                     (a)  the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and

                     (b)  the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and

                     (c)  the steps involved in the proposed proceedings; and

                     (d)  the role of family consultants; and

                     (e)  the arbitration facilities available to arbitrate disputes in relation to separation and divorce.

12C  Prescribed information about reconciliation

                   The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage.

12D  Prescribed information about Part VII proceedings

             (1)  The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII.

             (2)  Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.

Division 3Who must provide information, and when

12E  Obligations on legal practitioners

             (1)  A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non‑court based family services and court’s processes and services).

             (2)  A legal practitioner who is consulted by, or who is representing, a married person who is a party to:

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

                     (b)  financial or Part VII proceedings in relation to the marriage;

must give the person documents containing the information prescribed under section 12C (about reconciliation).

             (3)  A legal practitioner representing a party in proceedings under Part VII must give the party documents containing the information prescribed under section 12D (about Part VII proceedings).

Note:          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 IIIBCourt’s powers in relation to court and non‑court based family services

Division 1Introduction

13A  Objects of this Part

             (1)  The objects of this Part are:

                     (a)  to facilitate access to family counselling:

                              (i)  to help married couples considering separation or divorce to reconcile; and

                             (ii)  to help people adjust to separation or divorce; and

                            (iii)  to help people adjust to court orders under this Act; and

                     (b)  to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and

                     (c)  to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and

                     (d)  to give the court the power to require parties to proceedings under this Act to make use of court or non‑court based family services appropriate to the needs of the parties.

             (2)  The object mentioned in paragraph (1)(b) also lies behind the general requirement in section 60I for family dispute resolution services to be used before applications for orders under Part VII are made.

Division 2Help with reconciliation

13B  Court to accommodate possible reconciliations

             (1)  A court exercising jurisdiction in:

                     (a)  proceedings for a divorce order; or

                     (b)  financial or part VII proceedings instituted by a party to a subsisting marriage;

must consider, from time to time, the possibility of a reconciliation between the parties to the marriage.

             (2)  If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation.

             (3)  If the court adjourns the proceedings under subsection (2), the court must advise the parties to attend family counselling, or use the services of another appropriate person or organisation.

Note:          Before advising the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

             (4)  If, after an adjournment under subsection (2), either of the parties requests that the proceedings resume, the court must resume the proceedings as soon as practicable.

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

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

             (1)  A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

                     (a)  that one or more of the parties to the proceedings attend family counselling;

                     (b)  that the parties to the proceedings attend family dispute resolution;

                     (c)  that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

Note 1:       Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

Note 2:       The court can also order parties to attend, 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 4Court’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 Circuit 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 Circuit Court of Australia.

             (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 Circuit Court of Australia 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 Circuit 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 Circuit Court of Australia.

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 Circuit Court of Australia may:

                     (a)  determine all questions of law arising in relation to the arbitration; and

                     (b)  make such decrees as the judge or Federal Circuit Court of Australia thinks appropriate, including a decree affirming, reversing or varying the award.

13K  Family Court and Federal Circuit 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 Circuit Court of Australia; or

                     (c)  a Family Court of a State;

the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.

             (2)  The court may only make a decree under subsection (1) if the court is satisfied that:

                     (a)  the award or agreement was obtained by fraud (including non‑disclosure of a material matter); or

                     (b)  the award or agreement is void, voidable or unenforceable; or

                     (c)  in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or

                     (d)  the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

Part IVThe Family Court of Australia

Division 1Interpretation

20  Interpretation

                   In this Part, unless the contrary intention appears:

Chief Judge means the Chief Judge of the Court, and includes the Deputy Chief Judge or a Judge Administrator if the Deputy Chief Judge or Judge Administrator is for the time being performing the duties and exercising the powers of the Chief Judge.

Court means the Family Court of Australia.

Deputy Chief Judge means the Deputy Chief Judge of the Court.

Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

Judge Administrator means a Judge Administrator of the Court.

Principal Registrar means the Principal Registrar of the Court.

Division 2The Family Court of Australia

21  Creation of Court

             (1)  A Court, to be known as the Family Court of Australia, is created by this Act.

             (2)  The Court is a superior court of record.

             (3)  The Court consists of:

                     (a)  a Chief Judge, who shall be called the Chief Justice of the Court;

                     (b)  a Deputy Chief Judge, who shall be called the Deputy Chief Justice of the Court; and

                     (c)  Judge Administrators, Senior Judges and other Judges, not exceeding, in total, such number as is prescribed.

             (4)  Regulations made pursuant to subsection (3) shall take effect at the expiration of 7 sitting days after the regulations have been laid before each House of the Parliament.

21A  Divisions of Court

                   For the purposes of the organization and conduct of the business of the Court, the Court comprises 2 Divisions, namely, the Appeal Division and the General Division.

21B  Arrangement of business of Court

             (1)  The Chief Judge is responsible for ensuring the 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; and

                     (c)  may deal, as set out in subsection (1B), with a complaint about the performance by another Judge of his or her judicial or official duties; and

                     (d)  may take any measures that the Chief Judge believes are reasonably necessary to maintain public confidence in the Court, including, but not limited to, temporarily restricting another Judge to non‑sitting duties.

          (1B)  The Chief Judge may, if a complaint is made about another Judge, deal with the complaint by doing either or both of the following in respect of the complaint:

                     (a)  deciding whether or not to handle the complaint and then doing one of the following:

                              (i)  dismissing the complaint;

                             (ii)  handling the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge;

                            (iii)  arranging for any other complaint handlers to assist the Chief Judge to handle the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge;

                     (b)  arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:

                              (i)  dismiss the complaint;

                             (ii)  handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge.

Note:          A complaint handler (other than the Chief Judge) may handle a complaint by referring it to the Chief Judge. The Chief Judge may then do either or both of the things referred to in paragraph (a) or (b) in respect of the complaint.

             (2)  The Deputy Chief Judge shall assist the Chief Judge in the exercise of the functions conferred on the Chief Judge by this section (other than paragraph (1A)(c) or (d)).

             (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 (other than paragraph (1A)(c) or (d)) as are from time to time so assigned.

          (3A)  The Chief Judge may authorise, in writing, a person or a body to do one or more of the following:

                     (a)  assist the Chief Judge to handle complaints or a specified complaint;

                     (b)  decide whether or not to handle complaints or a specified complaint;

                     (c)  dismiss complaints or a specified complaint;

                     (d)  handle complaints or a specified complaint.

          (3B)  To avoid doubt, the Chief Judge may authorise under subsection (3A):

                     (a)  the Deputy Chief Judge or a Judge Administrator; or

                     (b)  a body that includes the Deputy Chief Judge or a Judge Administrator.

             (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.

Note:          See also section 38Y.

             (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), (1B) or (3A).

Division 3Judges

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 4Judicial Registrars

26A  Judicial Registrars

                   The Governor‑General may appoint one or more Judicial Registrars of the Court.

26B  Powers of Judicial Registrars

             (1)  The Judges, or a majority of them, may make Rules of Court delegating to the Judicial Registrars all or any of the powers of the Court except the power to make an excluded child order (as defined in subsection (1A)) and the power to make an order setting aside a registered award under section 13K.

          (1A)  An excluded child order is:

                     (a)  a parenting order to the extent to which it provides that:

                              (i)  a child is to live with a person; or

                             (ii)  a child is to spend time with a person; or

                            (iii)  a child is to communicate with a person; or

                            (iv)  a person is to have parental responsibility for a child; or

                     (b)  an order in relation to the welfare of a child;

other than:

                     (c)  a parenting order made under paragraph 70NEB(1)(b) or an order made under paragraph 70NFB(2)(c) that has the same effect as such a parenting order; or

                     (d)  an order until further order; or

                     (e)  an order made in undefended proceedings; or

                      (f)  an order made with the consent of all the parties to the proceedings.

             (2)  Without limiting the generality of subsection (1), the Judges, or a majority of them, may make Rules of Court under that subsection:

                     (a)  delegating to the Judicial Registrars all or any of the powers of the Court that could be delegated to the Registrars of the Court; and

                     (b)  delegating to the Judicial Registrars powers of the Court by reference to powers of the Court that have been delegated to the Registrars of the Court under section 37A.

             (3)  A power delegated to the Judicial Registrars shall, when exercised by a Judicial Registrar, be deemed to have been exercised by the Court or a Judge, as the case requires.

             (4)  The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge.

             (5)  The provisions of this Act, the regulations and the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, under a delegation made under subsection (1), exercisable by a Judicial Registrar, apply in relation to an exercise of the power by a Judicial Registrar as if references to the Court, or to a court exercising jurisdiction under this Act, were references to a Judicial Registrar.

             (6)  The Judicial Registrars shall have, in addition to the powers delegated to them under subsection (1), such other powers (if any) as are conferred on them by this Act, the regulations and the standard Rules of Court.

Note:          Powers to make Rules of Court are also contained in sections 37A, 109A and 123.

26C  Review of decisions of Judicial Registrars

             (1)  A party to proceedings in which a Judicial Registrar has exercised a power delegated under subsection 26B(1) may, within the time prescribed by, or within such further time as is allowed in accordance with, Rules of Court made by the Judges or a majority of them, apply to the Court to review the exercise of the power.

             (2)  The Court may, on application made under subsection (1) or of its own motion, review the exercise by a Judicial Registrar of a power delegated under subsection 26B(1), and may make such orders as it considers appropriate in relation to the matter in relation to which the power was exercised.

             (3)  The Court may, on the application of a party or of its own motion, refer an application under subsection (1) to a Full Court of the Court.

26D  Exercise of delegated powers by Court

             (1)  Where:

                     (a)  an application for the exercise of a power delegated under subsection 26B(1) is to be, or is being, heard by a Judicial Registrar; and

                     (b)  the Judicial Registrar considers that it is not appropriate for the application to be determined by a Judicial Registrar;

the Judicial Registrar shall not hear, or continue to hear, the application, and shall make appropriate arrangements for the application to be heard by the Court.

             (2)  Where:

                     (a)  a power delegated under subsection 26B(1) is proposed to be exercised in a particular case by a Judicial Registrar; but

                     (b)  the Judicial Registrar has not commenced to exercise the power in that case;

a Judge may, on application by a person who would be a party to the proceedings before the Judicial Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge.

             (3)  Where an application is made to a Judge under subsection (2) seeking an order that, in a particular case, a power be exercised by a Judge, the Judicial Registrar shall not commence to exercise the power in that case until the application has been determined.

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

                   The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made under sections 26B and 26C of this Act:

                     (a)  as if a reference to a legislative instrument were a reference to a rule of court; and

                     (b)  as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges; and

                     (c)  subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.

26F  Independence of Judicial Registrars

                   Notwithstanding any provision of this Act or any other law, a Judicial Registrar is not subject to the direction or control of any person or body in the exercise of a power delegated under subsection 26B(1).

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

                   A Judicial Registrar may be appointed on a full time or part time basis.

26H  Qualifications for appointment etc.

             (1)  A person shall not be appointed as a Judicial Registrar unless:

                     (a)  the person is or has been a Judge of a court created by the Parliament or of a court of a State or the Northern Territory or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and

                     (b)  the person is, by reason of training, experience and personality, a suitable person to deal with matters of family law.

26I  Term of office

             (1)  A Judicial Registrar:

                     (a)  shall be appointed with effect from the day specified in the instrument of appointment; and

                     (b)  holds office, subject to this Act:

                              (i)  for such term (not exceeding 7 years) as is specified in the instrument of appointment, but is eligible for re‑appointment; or

                             (ii)  if the instrument of appointment so provides, until attaining 65 years of age, but is eligible for re‑appointment.

26J  Remuneration and allowances

             (1)  A Judicial Registrar shall be paid such remuneration as is determined by the Remuneration Tribunal.

             (2)  A Judicial Registrar shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

26JA  Leave of absence

             (1)  A person appointed as a full‑time Judicial Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Chief Judge may grant a person appointed as a full‑time Judicial Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chief Judge, with the approval of the Attorney‑General, determines.

26K  Resignation

             (1)  A Judicial Registrar may resign office by writing under his or her hand addressed to the Governor‑General.

             (2)  The resignation takes effect on:

                     (a)  the day on which it is received by the Governor‑General; or

                     (b)  a later day specified in the resignation document.

26L  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of a Judicial Registrar for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General shall terminate the appointment of a Judicial Registrar if the Judicial Registrar becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit.

26M  Oath or affirmation of office

                   A Judicial Registrar shall, before proceeding to discharge the duties of the office, take, before the Chief Judge or another Judge of the Family Court, an oath or affirmation in the following form:

       “I,                      , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law and that I will well and truly serve Her in the office of Judicial Registrar of the Family Court of Australia, So help me God.”

or

       “I,                      , do solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law and that I will well and truly serve Her in the office of Judicial Registrar of the Family Court of Australia.”

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

                   A Judicial Registrar holds office on such terms and conditions (if any) in relation to matters not provided by this Act as are determined, in writing, by the Governor‑General.

Division 5Jurisdiction and exercise of jurisdiction

27  Place of sitting

             (1)  Sittings of the Court must be held from time to time as required and the Court may sit at any place in Australia.

             (2)  The Court, in respect of proceedings, may be constituted by 2 or more Judges sitting at the same time, but in different places in Australia, using video link, audio link or other appropriate means to facilitate the Court sitting (split court).

Note:          Section 21B provides for the Chief Judge to make arrangements for the constitution of the Court for particular matters.

             (3)  For the purpose of determining which law to apply in proceedings in which a split court is sitting, the Court is taken to be sitting at the place at which the presiding Judge is sitting.

27A  Change of venue

                   The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

28  Exercise of jurisdiction

             (1)  The original jurisdiction of the Court may be exercised by one or more Judges.

             (2)  The jurisdiction of the Court in an appeal from a court of summary jurisdiction may be exercised by one Judge or by a Full Court.

          (2A)  Nothing in this Act prevents a Judge who is a member of the Appeal Division from exercising the jurisdiction of the Court that, under subsection (1) or (2), may be exercised by one or more Judges.

             (3)  The jurisdiction of the Court in an appeal from a Judge of the Court or of the Supreme Court of a State or Territory shall be exercised by a Full Court.

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

             (4)  Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of proceedings and before the proceedings have been determined, one of the Judges constituting the Full Court dies, resigns his or her office, ceases to be a member of the Court by reason that the term of his or her appointment expires or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceedings, then the hearing and determination, or the determination, of the proceedings may be completed:

                     (a)  if only 2 Judges remain and one of those Judges is assigned to the Appeal Division, or if more than 2 Judges remain and a majority of those Judges are assigned to the Appeal Division—by the Court constituted by the remaining Judges; or

                     (b)  with the consent of the parties—by the Court constituted by the remaining Judge or Judges and an additional Judge or Judges, where a majority of the Judges constituting the Court are assigned to the Appeal Division.

             (5)  A Full Court constituted in accordance with subsection (4) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court as previously constituted.

             (6)  The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court.

30  Court divided in opinion

                   If the Judges constituting the Court for the purposes of any proceedings are divided in opinion as to the judgment to be pronounced, judgment shall be pronounced according to the opinion of the majority, if there is a majority, but, if the Judges are equally divided in opinion:

                     (a)  in the case of an appeal from a judgment of the Family Court constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from shall be affirmed; and

                     (b)  in any other case—the opinion of the Chief Judge or, if he 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 Circuit Court

             (1)  Proceedings must not be instituted in the Family Court in respect of a matter if:

                     (a)  the Federal Circuit Court of Australia has jurisdiction in that matter; and

                     (b)  proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia.

             (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 Circuit Court of Australia;

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 Circuit 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 Circuit Court of Australia.

             (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 Circuit Court of Australia 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 Circuit Court of Australia 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 Circuit Court of Australia.

             (6)  In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia 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 Circuit Court of Australia; and

                     (c)  whether the resources of the Federal Circuit Court of Australia 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 Circuit Court of Australia.

             (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 Circuit Court of Australia 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 Circuit 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 Circuit Court of Australia.

             (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 Circuit Court of Australia.

             (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 Circuit Court of Australia 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 2003.

34  Issue of certain writs etc.

             (1)  The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

35  Contempt of court

                   Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

Division 6Registries and officers

36  Registries

             (1)  The Governor‑General shall cause such Registries of the Court to be established as the Governor‑General thinks fit.

             (2)  Unless and until the regulations otherwise provide, the Principal Registry shall be located in Sydney.

37  Officers of Court

             (1)  In relation to a proceeding under this Act, the officers of the Court have such duties, powers and functions as are given by this Act or the standard Rules of Court or by the Chief Judge.

             (2)  The Principal Registrar of the Court may, subject to this Act, the regulations, the standard Rules of Court and any directions of the Chief Judge, give directions to the officers of the Court in relation to the manner in which the functions and duties of those officers are to be performed and the powers of those officers are to be exercised in relation to proceedings under this Act.

             (3)  Despite subsection (2), the Principal Registrar must not give directions that relate to an officer’s functions as a family consultant, family counsellor or family dispute resolution practitioner.

37A  Delegation of powers to Registrars

             (1)  The Judges, or a majority of them, may, subject to subsection (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court:

                     (a)  the power to dispense with the service of any process under this Act;

                     (b)  the power to make orders in relation to substituted service;

                     (c)  the power, in proceedings under this Act, to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to the proceedings or of any other person;

                     (d)  the power, in proceedings under this Act, to direct a party to the proceedings to answer particular questions;

                     (e)  the power to make orders under:

                              (i)  sections 11F and 11G; and

                             (ii)  sections 13C and 13D; and

                            (iii)  subsection 65LA(1); and

                            (iv)  paragraph 70NEB(1)(a);

                    (ea)  the power to direct a family consultant to give a report under section 62G;

                      (f)  the power, in proceedings under this Act, to make:

                              (i)  an order under section 66Q, 67E, 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)  Subject to subsection (4A), action must not be taken in relation to the Principal Registrar, a Registrar or a Deputy Registrar (or a former Principal Registrar, Registrar or Deputy Registrar):

                     (a)  by an Agency Head under section 15 of the Public Service Act 1999; or

                     (b)  by the Australian Public Service Commissioner under section 41B of that Act; or

                     (c)  by the Merit Protection Commissioner under section 50A of that Act;

unless the Chief Judge has requested the Agency Head, the Australian Public Service Commissioner or the Merit Protection Commissioner to take such action.

Note:          Sections 15, 41B and 50A of the Public Service Act 1999 make provision for dealing with an alleged breach of the Code of Conduct (within the meaning of that Act) by an APS employee or a former APS employee.

          (4A)  Subsection (4) does not apply if the Prime Minister has requested the Australian Public Service Commissioner to take action under section 41B of the Public Service Act 1999 in relation to the Principal Registrar, a Registrar or a Deputy Registrar (or a former Principal Registrar, Registrar or Deputy Registrar).

             (5)  In this section, Registrar means a Registrar of the Court.

37C  Oath or affirmation of office

                   A Principal Registrar, Registrar or Deputy Registrar shall, before proceeding to discharge the duties of the office, take, before the Chief Judge or another Judge of the Family Court, an oath or affirmation in the following form:

         “I,                         , do swear that I will well and truly serve in the office of (Principal Registrar, Registrar or Deputy Registrar, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or illwill, So help me God.”

or

         “I,                         , do solemnly and sincerely promise and declare that     ” (as above, omitting the words “So help me God”).

Division 7Practice and procedure

38  Practice and procedure

             (1)  Subject to this Act, the practice and procedure of the Court shall be in accordance with the regulations and the standard Rules of Court.

             (2)  In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

          (2A)  This section does not apply in relation to proceedings that are transferred to the Court from the Federal Court of Australia.

             (3)  In this section, practice and procedure includes all matters with respect to which regulations or standard Rules of Court may be made under this Act.

Part IVAManagement of the Court

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

38A  Management of administrative affairs of Court

             (1)  The Chief Judge is responsible for managing the administrative affairs of the Court.

             (2)  For that purpose, the Chief Judge has power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth:

                     (a)  entering into contracts; and

                     (b)  acquiring or disposing of personal property.

             (3)  The powers given to the Chief Judge by subsection (2) are in addition to any powers given to the Chief Judge by any other provision of this Act or by any other Act.

             (4)  Subsection (2) does not authorise the Chief Judge to 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 the Chief Executive Officer.

Division 1AAApplication of the finance law

38BAA  Application of the finance law

                   For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

                     (a)  the following group of persons is a listed entity:

                              (i)  the Chief Executive Officer;

                             (ii)  the officers of the Court referred to in subsection 38N(1);

                            (iii)  the staff of the Registries referred to in subsection 38N(7);

                            (iv)  the officers of the Federal Circuit Court referred to in subsection 99(1) of the Federal Circuit Court of Australia Act 1999;

                             (v)  the staff of the Federal Circuit Court referred to in section 112 of that Act; and

                     (b)  the listed entity is to be known as the Family Court and Federal Circuit Court; and

                     (c)  the Chief Executive Officer is the accountable authority of the listed entity; and

                     (d)  the persons referred to in paragraph (a) are officials of the listed entity; and

                     (e)  the purposes of the listed entity include the functions of the Chief Executive Officer under:

                              (i)  sections 38B and 38BA of this Act; and

                             (ii)  sections 93A and 96 of the Federal Circuit Court of Australia Act 1999.

Division 1AAdministration of Court’s family services

38BA  Chief Executive Officer has functions of family consultants

             (1)  The Chief Executive Officer has all of the functions conferred on family consultants by section 11A, and any associated powers and duties.

             (2)  Without limiting subsection (1), sections 11C (admissibility of communications with family consultants) and 11D (immunity of family consultants) apply to the Chief Executive Officer while the Chief Executive Officer is performing those functions.

             (3)  The Chief Executive Officer is responsible for administering the functions of family consultants.

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

             (1)  The Chief Executive Officer may, in writing, delegate to a family consultant any of the Chief Executive Officer’s powers, functions and duties in relation to the functions of family consultants mentioned in section 11A.

             (2)  A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Chief Executive Officer.

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

                   The Chief Executive Officer may give directions that relate to:

                     (a)  a Court officer’s functions as a family consultant; or

                     (b)  a Court officer’s or staff member’s functions as a family counsellor or family dispute resolution practitioner.

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

             (1)  The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family counselling under this Act.

             (2)  The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family dispute resolution under this Act.

             (3)  If an officer who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section:

                     (a)  section 11C (admissibility of communications with family consultants) does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and

                     (b)  the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a person involved in those proceedings.

Division 2Chief Executive Officer

38C  Establishment and appointment of Chief Executive Officer

             (1)  There is to be a Chief Executive Officer of the Family Court and the Federal Circuit Court.

             (2)  The Chief Executive Officer is to be appointed by the Governor‑General on the joint nomination of the Chief Judge of the Family Court and the Chief Judge of the Federal Circuit Court.

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 under this Act.

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 jointly by the Chief Judge and the Chief Judge of the Federal Circuit Court.

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 and the Chief Judge of the Federal Circuit Court may jointly grant the Chief Executive Officer leave of absence, other than recreation leave, on such terms and conditions as the Chief Judge and the Chief Judge of the Federal Circuit Court, with the approval of the Attorney‑General, jointly determine.

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 and the Chief Judge of the Federal Circuit Court, 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

             (1)  The Chief Executive Officer must give written notice to the Chief Judge and the Chief Judge of the Federal Circuit Court 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.

             (2)  The Chief Executive Officer must give written notice to the Chief Judge and the Chief Judge of the Federal Circuit Court of all material personal interests that the Chief Executive Officer has that relate to the affairs of the Family Court or the Federal Circuit Court.

             (3)  Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the Chief Executive Officer.

38M  Acting Chief Executive Officer

                   The Chief Judge and the Chief Judge of the Federal Circuit Court may, in writing, jointly 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 3Other officers and staff of Registries

38N  Personnel other than the Chief Executive Officer

             (1)  In addition to the Chief Executive Officer, there are the following officers of the Court:

                     (a)  a Principal Registrar of the Court;

                     (b)  such Registrars and Deputy Registrars of the Court as are necessary;

                     (c)  such Registry Managers of the Court as are necessary;

                     (d)  such family consultants as are necessary;

                     (e)  the Marshal of the Court;

                      (f)  such Deputy Marshals of the Court as are necessary.

             (2)  The officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as are given to them by this Act, by the standard Rules of Court or by the Chief Judge.

             (3)  The officers of the Court are appointed by the Chief Executive Officer.

             (4)  The officers of the Court, other than the Chief Executive Officer and the Deputy Marshals, are to be persons engaged under the Public Service Act 1999.

             (5)  The Deputy Marshals may be persons engaged under the Public Service Act 1999.

             (6)  The Chief Executive Officer may, on behalf of the Chief Judge, arrange with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the services of officers or employees of the Department or authority to be made available for the purposes of the Court.

             (7)  There are to be such staff of the Registries as are necessary.

             (8)  The staff of the Registries is to consist of persons engaged under the Public Service Act 1999.

38P  Marshal

             (1)  The Marshal of the Court is responsible for the service and execution of all process of the Court directed to the Marshal.

             (2)  The Marshal is also responsible for:

                     (a)  dealing, on behalf of the Court, with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court directed to members of any of those police forces; and

                     (b)  the security of the Court and the personal security of the Judges and officers of the Court; and

                     (c)  taking, receiving and detaining all persons committed to his or her custody by the Court; and

                     (d)  discharging such persons when so directed by the Court or otherwise required by law.

             (3)  A Deputy Marshal may, subject to any directions of the Marshal, exercise or perform any of the powers and functions of the Marshal.

             (4)  The Marshal or a Deputy Marshal may authorise persons to assist him or her in the exercise of any of his or her powers or the performance of any of his or her functions.

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

                   For the purposes of the Public Service Act 1999:

                     (a)  the Chief Executive Officer and the APS employees assisting the Chief Executive Officer together constitute a Statutory Agency; and

                     (b)  the Chief Executive Officer is the Head of that Statutory Agency.

Note:          The Statutory Agency declared by this section also includes officers and members of staff of the Federal Circuit Court who are APS employees (see section 112A of the Federal Circuit Court of Australia Act 1999).

38R  Engagement of consultants etc.

             (1)  The Chief Executive Officer may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Chief Executive Officer.

          (1A)  The Chief Executive Officer may engage persons to perform:

                     (a)  family counselling services under this Act; or

                     (b)  family dispute resolution services under this Act.

             (2)  An engagement under subsection (1) or (1A) is to be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.

Division 4Miscellaneous administrative matters

38S  Annual report

             (1)  As soon as practicable after 30 June in each year, the Chief Judge must prepare a report of the management of the administrative affairs of the Court during the year.

Note:          The report prepared by the Chief Executive Officer and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 may be included in the report prepared under this section.

             (2)  A report prepared after 30 June in a year must be given to the Attorney‑General by 15 October of that year.

             (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.

38Y  Protection of persons involved in handling etc. complaints

             (1)  In exercising powers or performing functions under paragraph 21B(1A)(c) and subsection 21B(1B), or assisting in exercising those powers or performing those functions, a complaint handler has the same protection and immunity as a Justice of the High Court.

             (2)  In authorising a person or body under subsection 21B(3A), the Chief Judge has the same protection and immunity as a Justice of the High Court.

             (3)  A witness requested to attend, or appearing, before a complaint handler handling a complaint has the same protection, and is subject to the same liabilities in a proceeding, as a witness in a case tried by the High Court.

             (4)  A lawyer assisting, or appearing on behalf of a person before, a complaint handler handling a complaint has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

Part VJurisdiction of courts

Division 1Jurisdiction 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 Circuit Court of Australia.

             (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 Circuit Court of Australia 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 Circuit Court of Australia 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 Circuit Court of Australia 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 2Jurisdiction 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 Circuit Court of Australia; 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 Circuit Court of Australia; 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 Circuit Court of Australia 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 3Other 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 Circuit Court in certain States and Territories

                   The jurisdiction of the Federal Circuit Court of Australia 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 Circuit Court of Australia 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 Circuit Court of Australia 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 Circuit Court of Australia; or

                     (b)  the first‑mentioned court is the Federal Circuit Court of Australia and the other court is the Family Court.

Note 1:       For transfers from the Family Court to the Federal Circuit Court of Australia, see section 33B.

Note 2:       For transfers from the Federal Circuit Court of Australia to the Family Court, see section 39 of the Federal Circuit Court of Australia 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 or transferred to a court of summary jurisdiction in relation to property of a total value exceeding $20,000 and the respondent, in answer to the application by which the proceedings were 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

                            (ia)  a Family Court of a State; or

                             (ii)  the Supreme Court of a State or Territory; or

                            (iii)  the Federal Circuit Court of Australia; 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

                            (ia)  a Family Court of a State; or

                             (ii)  the Supreme Court of a State or Territory; or

                            (iii)  the Federal Circuit Court of Australia.

       (1AA)  Subsection (1) does not apply if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

          (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 or transferred to 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

                    (aa)  a Family Court of a State; or

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

                     (c)  the Federal Circuit Court of Australia.

             (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

                    (ca)  a Family Court of a State; or

                     (d)  the Supreme Court of a State or Territory; or

                     (e)  the Federal Circuit Court of Australia.

          (2B)  Subsection (2A) does not apply if the court of summary jurisdiction 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;

                    (aa)  a Family Court of a State;

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

                     (c)  the Federal Circuit Court of Australia;

may, on the application of a party or of its own motion, order that the proceedings be removed to that Court.

             (4)  Where proceedings are transferred or removed to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally instituted in that court.

             (5)  Without prejudice to the duty of a court of summary jurisdiction to comply with this section, failure by such a court so to comply does not invalidate any order of the court in the proceedings.

47  Courts to act in aid of each other

                   All courts having jurisdiction under this Act shall severally act in aid of and be auxiliary to each other in all matters under this Act.

Part VIDivorce and nullity of marriage

  

48  Divorce

             (1)  An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

             (2)  Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

             (3)  A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

49  Meaning of separation

             (1)  The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

             (2)  The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

50  Effect of resumption of cohabitation

             (1)  For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.

             (2)  For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

51  Nullity of marriage

                   An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

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

                   Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage.

53  Circumstances occurring before commencement of Act or outside Australia

                   A decree may be made, or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.

55  When divorce order takes effect

             (1)  Subject to this section, a divorce order made under this Act takes effect by force of this section:

                     (a)  at the expiration of a period of 1 month from the making of the order; or

                     (b)  from the making of an order under section 55A;

whichever is the later.

             (2)  If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:

                     (a)  make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or

                     (b)  make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.

             (3)  If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:

                     (a)  at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or

                     (b)  on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted;

whichever is the later.

             (4)  A divorce order does not take effect by force of this section if either of the parties to the marriage has died.

             (5)  In this section:

appeal, in relation to a divorce order, means:

                     (a)  an appeal, or 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 Circuit Court of Australia 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 VIIChildren

Division 1Introductory

Subdivision AWhat this Division does

60A  What this Division does

                   This Division contains:

                     (a)  a statement of the object of this Part and the principles underlying it, and an outline of this Part (Subdivision B); and

                    (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 BObject, principles and outline

60B  Objects of Part and principles underlying it

             (1)  The objects of this Part are to ensure that the best interests of children are met by:

                     (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

                     (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

                     (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

                     (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

             (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

                     (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

                     (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

                     (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

                     (d)  parents should agree about the future parenting of their children; and

                     (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

             (3)  For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

                     (a)  to maintain a connection with that culture; and

                     (b)  to have the support, opportunity and encouragement necessary:

                              (i)  to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

                             (ii)  to develop a positive appreciation of that culture.

             (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

Division 2—Parental responsibility

·           the concept of parental responsibility

3

Division 3—Reports relating to children under 18

preparation of reports for use in proceedings relating to children under 18

4

Division 4—Parenting plans

·           what parenting plans are

5

Division 5—Parenting orders—what they are

·           what parenting orders are

6

Division 6—Parenting orders other than child maintenance orders

·           applying for and making parenting orders (other than child maintenance orders) after attending, if necessary, family dispute resolution (see section 60I)

·           general obligations created by parenting orders, other than child maintenance orders

·           measures to promote the exercise of parental responsibility

·           dealing with people who have been arrested

·           obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia

7

Division 7—Child maintenance orders

·           objects and principles relevant to the making of child maintenance orders

·           the relationship between Division 7 and the Child Support (Assessment) Act 1989

·           applying for and making child maintenance orders

·           other aspects of courts’ powers in relation to child maintenance orders

·           varying the maintenance of certain children

·           when child maintenance orders stop being in force

·           recovery of amounts paid under maintenance orders

8

Division 8—Other matters relating to children

·           liability of a father to contribute towards child bearing expenses if he is not married to the child’s mother

·           orders for the location and recovery of children

·           reporting of allegations of child abuse and family violence

·           other orders about children

9

Division 9—Injunctions

·           proceedings for injunctions in relation to children

10

Division 10—The representation of the child’s interests

the representation of a child’s interests in proceedings by an independent children’s lawyer

11

Division 11—Family violence

·           the relationship between certain parenting orders and family violence orders

12

Division 12—Proceedings and jurisdiction

·           institution of proceedings and procedure

·           jurisdiction of courts

·           presumptions of parentage

·           parentage evidence

·           places and people to which this Part extends and applies

12A

Division 12A—Principles for conducting child‑related proceedings

·           principles for conducting proceedings under this Part and certain other incidental proceedings

·           duties and powers of the court related to giving effect to the principles

·           matters relating to evidence

13

Division 13—State, Territory and overseas orders

·           registration of State and Territory orders dealing with children

·           registration of overseas orders dealing with children

·           transmission of Australian orders to overseas jurisdictions

13A

Division 13A—Enforcement of orders affecting children

·           court may do any or all of the following:

(a) require a person who contravenes an order affecting children to participate in an appropriate post‑separation parenting program designed to help in the resolution of conflicts about parenting;

(b) make a further parenting order that compensates a person for time that a child did not spend with the person, or for time that a child did not live with the person, as a result of the contravention;

(c) adjourn the proceedings to enable an application to be made for a further parenting order;

·           court must take other action in respect of a person who contravenes an order affecting children if the court is satisfied:

(a) where the contravention is an initial contravention—that the person has behaved in a way that showed a serious disregard for his or her parenting obligations; or

(b) where the contravention is a second or subsequent contravention—that it is not appropriate for the person to be dealt with by requiring his or her attendance at a post‑separation parenting program;

14

Division 14—Miscellaneous

·           miscellaneous matters relating to children

Subdivision BABest interests of the child: court proceedings

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

                   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

60CB  Proceedings to which Subdivision applies

             (1)  This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

Note:          Division 10 also allows a court to make an order for a child’s interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.

             (2)  This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies.

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

Determining child’s best interests

             (1)  Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

             (2)  The primary considerations are:

                     (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

                     (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

          (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

             (3)  Additional considerations are:

                     (a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

                     (b)  the nature of the relationship of the child with:

                              (i)  each of the child’s parents; and

                             (ii)  other persons (including any grandparent or other relative of the child);

                     (c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

                              (i)  to participate in making decisions about major long‑term issues in relation to the child; and

                             (ii)  to spend time with the child; and

                            (iii)  to communicate with the child;

                    (ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

                     (d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

                              (i)  either of his or her parents; or

                             (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

                     (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

                      (f)  the capacity of:

                              (i)  each of the child’s parents; and

                             (ii)  any other person (including any grandparent or other relative of the child);

                            to provide for the needs of the child, including emotional and intellectual needs;

                     (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

                     (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

                              (i)  the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

                             (ii)  the likely impact any proposed parenting order under this Part will have on that right;

                      (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

                      (j)  any family violence involving the child or a member of the child’s family;

                     (k)  if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

                              (i)  the nature of the order;

                             (ii)  the circumstances in which the order was made;

                            (iii)  any evidence admitted in proceedings for the order;

                            (iv)  any findings made by the court in, or in proceedings for, the order;

                             (v)  any other relevant matter;

                      (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

                    (m)  any other fact or circumstance that the court thinks is relevant.

Consent orders

             (5)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

             (6)  For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

                     (a)  to maintain a connection with that culture; and

                     (b)  to have the support, opportunity and encouragement necessary:

                              (i)  to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

                             (ii)  to develop a positive appreciation of that culture.

60CD  How the views of a child are expressed

             (1)  Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.

             (2)  The court may inform itself of views expressed by a child:

                     (a)  by having regard to anything contained in a report given to the court under subsection 62G(2); or

                     (b)  by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or

                     (c)  subject to the applicable Rules of Court, by such other means as the court thinks appropriate.

Note 1:       Paragraph (a)—subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report.

Note 2:       Paragraph (b)—paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.

60CE  Children not required to express views

                   Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.

60CF  Informing court of relevant family violence orders

             (1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

             (2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.

             (3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

60CG  Court to consider risk of family violence

             (1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

                     (a)  is consistent with any family violence order; and

                     (b)  does not expose a person to an unacceptable risk of family violence.

             (2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

60CH  Informing court of care arrangements under child welfare laws

             (1)  If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.

             (2)  If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.

             (3)  Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).

60CI  Informing court of notifications to, and investigations by, prescribed State or Territory agencies

             (1)  If:

                     (a)  a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

                              (i)  a notification or report (however described) to a prescribed State or Territory agency; or

                             (ii)  an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

                     (b)  the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;

that party must inform the court of the matter.

             (2)  If:

                     (a)  a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

                              (i)  a notification or report (however described) to a prescribed State or Territory agency; or

                             (ii)  an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

                     (b)  the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;

that person may inform the court of the matter.

             (3)  Failure to inform the court of the matter does not affect the validity of any order made by the court.

             (4)  In this section:

prescribed State or Territory agency means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.

Subdivision BBBest interests of the child: adviser’s obligations

60D  Adviser’s obligations in relation to best interests of the child

             (1)  If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:

                     (a)  inform the person that the person should regard the best interests of the child as the paramount consideration; and

                     (b)  encourage the person to act on the basis that the child’s best interests are best met:

                              (i)  by the child having a meaningful relationship with both of the child’s parents; and

                             (ii)  by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

                            (iii)  in applying the considerations set out in subparagraphs (i) and (ii)—by giving greater weight to the consideration set out in subparagraph (ii).

             (2)  In this section:

adviser means a person who is:

                     (a)  a legal practitioner; or

                     (b)  a family counsellor; or

                     (c)  a family dispute resolution practitioner; or

                     (d)  a family consultant.

Subdivision CInterpretation and application of Part

60E  Application of Part to void marriages

                   This Part applies in relation to a purported marriage that is void as if:

                     (a)  the purported marriage were a marriage; and

                     (b)  the parties to the purported marriage were husband and wife.

Subdivision DInterpretation—how this Act applies to certain children

60EA  Definition of de facto partner

                   For the purposes of this Subdivision, a person is the de facto partner of another person if:

                     (a)  a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or

                     (b)  the person is in a de facto relationship with the other person.

60F  Certain children are children of marriage etc.

             (1)  A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children:

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

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

                     (c)  a child who is, under subsection 60H(1) or section 60HB, the child of the husband and wife.

             (2)  A reference in this Act to a child of a marriage includes a reference to a child of:

                     (a)  a marriage that has been terminated by divorce or annulled (in Australia or elsewhere); or

                     (b)  a marriage that has been terminated by the death of one party to the marriage.

             (3)  A child of a marriage who is adopted by a person who, before the adoption, is not a prescribed adopting parent ceases to be a child of that marriage for the purposes of this Act.

             (4)  The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

                     (a)  if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of the marriage for the purposes of this Act;

                     (b)  in any other case—the child continues to be a child of the marriage for the purposes of this Act.

          (4A)  To avoid doubt, for the purposes of this Act, a child of a marriage is a child of the husband and of the wife in the marriage.

             (5)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Circuit Court Rules.

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

             (1)  Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

             (2)  In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

60H  Children born as a result of artificial conception procedures

             (1)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

                     (b)  either:

                              (i)  the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

                             (ii)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

                     (c)  the child is the child of the woman and of the other intended parent; and

                     (d)  if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.

             (2)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

                     (b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

             (3)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

                     (b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

             (5)  For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

             (6)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Circuit Court Rules.

60HA  Children of de facto partners

             (1)  For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if:

                     (a)  the child is a child of the person and the person’s de facto partner; or

                     (b)  the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or

                     (c)  the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.

This subsection has effect subject to subsection (2).

             (2)  A child of current or former de facto partners ceases to be a child of those partners for the purposes of this Act if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent.

             (3)  The following provisions apply in relation to a child of current or former de facto partners who is adopted by a prescribed adopting parent:

                     (a)  if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of those partners for the purposes of this Act;

                     (b)  in any other case—the child continues to be a child of those partners for the purposes of this Act.

             (4)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Circuit Court Rules.

60HB  Children born under surrogacy arrangements

             (1)  If a court has made an order under a prescribed law of a State or Territory to the effect that:

                     (a)  a child is the child of one or more persons; or

                     (b)  each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

             (2)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Circuit Court Rules.

Subdivision EFamily dispute resolution

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

Object of this section

             (1)  The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

Phase 1 (from commencement to 30 June 2007)

             (2)  The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order.

             (3)  By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.

             (4)  Subsection (3) applies to an application for a parenting order if the application is made:

                     (a)  on or after the commencement of this section; and

                     (b)  before 1 July 2007.

Phase 2 (from 1 July 2007 to 30 June 2008)

             (5)  Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if:

                     (a)  the application is made on or after 1 July 2007 and before 1 July 2008; and

                     (b)  none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in relation to the child.

Phase 3 (from 1 July 2008)

             (6)  Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after 1 July 2008.

Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order

             (7)  Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

Certificate by family dispute resolution practitioner

             (8)  A family dispute resolution practitioner may give one of these kinds of certificates to a person:

                     (a)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;

                    (aa)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

                     (b)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;

                     (c)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;

                     (d)  a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution.

Note:          When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).

Exception

             (9)  Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

                     (a)  the applicant is applying for the order:

                              (i)  to be made with the consent of all the parties to the proceedings; or

                             (ii)  in response to an application that another party to the proceedings has made for a Part VII order; or

                     (b)  the court is satisfied that there are reasonable grounds to believe that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

                            (iii)  there has been family violence by one of the parties to the proceedings; or

                            (iv)  there is a risk of family violence by one of the parties to the proceedings; or

                     (c)  all the following conditions are satisfied:

                              (i)  the application is made in relation to a particular issue;

                             (ii)  a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;

                            (iii)  the application is made in relation to a contravention of the order by a person;

                            (iv)  the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or

                     (d)  the application is made in circumstances of urgency; or

                     (e)  one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or

                      (f)  other circumstances specified in the regulations are satisfied.

Referral to family dispute resolution when exception applies

           (10)  If:

                     (a)  a person applies for a Part VII order; and

                     (b)  the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and

                     (c)  subsection (7) does not apply to the application because of subsection (9);

the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.

           (11)  The validity of:

                     (a)  proceedings on an application for a Part VII order; or

                     (b)  any order made in those proceedings;

is not affected by a failure to comply with subsection (7) in relation to those proceedings.

           (12)  In this section:

dispute resolution provisions of the Family Law Rules 2004 means:

                     (a)  Rule 1.05 of those Rules; and

                     (b)  Part 2 of Schedule 1 to those Rules;

to the extent to which they deal with dispute resolution.

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

             (1)  If:

                     (a)  subsections 60I(7) to (12) apply to an application for a Part VII order (see subsections 60I(5) and (6)); and

                     (b)  subsection 60I(7) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there has been family violence by one of the parties to the proceedings;

a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.

             (2)  Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that:

                     (a)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

                     (b)  there is a risk of family violence by one of the parties to the proceedings.

             (3)  The validity of:

                     (a)  proceedings on an application for a Part VII order; or

                     (b)  any order made in those proceedings;

is not affected by a failure to comply with subsection (1) in relation to those proceedings.

             (4)  If:

                     (a)  the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and

                     (b)  subsection (2) does not apply;

the principal executive officer of the court concerned must ensure that the applicant is referred to a family counsellor or family dispute resolution practitioner in order to obtain information about those matters.

Division 2Parental responsibility

61A  What this Division does

                   This Division deals with the concept of parental responsibility including, in particular:

                     (a)  what parental responsibility is; and

                     (b)  who has parental responsibility.

61B  Meaning of parental responsibility

                   In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

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

             (1)  Each of the parents of a child who is not 18 has parental responsibility for the child.

Note 1:       This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

Note 2:       This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

Note 3:       Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

             (2)  Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.

             (3)  Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

Note:          Section 111CS may affect the attribution of parental responsibility for a child.

61D  Parenting orders and parental responsibility

             (1)  A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

             (2)  A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

                     (a)  expressly provided for in the order; or

                     (b)  necessary to give effect to the order.

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

             (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

             (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

                     (a)  abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

                     (b)  family violence.

             (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

             (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

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

                   If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

61E  Effect of adoption on parental responsibility

             (1)  This section applies if:

                     (a)  a child is adopted; and

                     (b)  immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.

             (2)  The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

61F  Application to Aboriginal or Torres Strait Islander children

                   In:

                     (a)  applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or

                     (b)  identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

Division 3Reports relating to children under 18

62A  What this Division does

                   This Division deals with the preparation of reports for use in proceedings relating to children who are under 18.

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

                   If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order.

Note:          Before informing the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

62G  Reports by family consultants

             (1)  This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.

             (2)  The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

             (3)  If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.

          (3A)  A family consultant who is directed to give the court a report on a matter under subsection (2) must:

                     (a)  ascertain the views of the child in relation to that matter; and

                     (b)  include the views of the child on that matter in the report.

Note:          A person cannot require a child to express his or her views in relation to any matter (see section 60CE).

          (3B)  Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:

                     (a)  the child’s age or maturity; or

                     (b)  some other special circumstance.

             (4)  The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.

             (5)  For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).

Note:          Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

             (6)  If:

                     (a)  a person fails to comply with an order or direction under subsection (5); or

                     (b)  a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5);

the family consultant must report the failure to the court.

             (7)  On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.

             (8)  A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.

Division 4Parenting plans

63A  What this Division does

                   This Division explains what parenting plans are.

63B  Parents encouraged to reach agreement

                   The parents of a child are encouraged:

                     (a)  to agree about matters concerning the child; and

                     (b)  to take responsibility for their parenting arrangements and for resolving parental conflict; and

                     (c)  to use the legal system as a last resort rather than a first resort; and

                     (d)  to minimise the possibility of present and future conflict by using or reaching an agreement; and

                     (e)  in reaching their agreement, to regard the best interests of the child as the paramount consideration.

Note:          Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.

63C  Meaning of parenting plan and related terms

             (1)  A parenting plan is an agreement that:

                     (a)  is in writing; and

                     (b)  is or was made between the parents of a child; and

                   (ba)  is signed by the parents of the child; and

                   (bb)  is dated; and

                     (c)  deals with a matter or matters mentioned in subsection (2).

          (1A)  An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.

             (2)  A parenting plan may deal with one or more of the following:

                     (a)  the person or persons with whom a child is to live;

                     (b)  the time a child is to spend with another person or other persons;

                     (c)  the allocation of parental responsibility for a child;

                     (d)  if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

                     (e)  the communication a child is to have with another person or other persons;

                      (f)  maintenance of a child;

                     (g)  the process to be used for resolving disputes about the terms or operation of the plan;

                     (h)  the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;

                      (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Note:          Paragraph (f)—if the Child Support (Assessment) Act 1989 applies, provisions in a parenting plan dealing with the maintenance of a child (as distinct from child support under that Act) are unenforceable and of no effect unless the provisions in the plan are a child support agreement (see section 63CAA and subsection 63G(5) of this Act).

          (2A)  The person referred to in subsection (2) may be, or the persons referred to in that subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

          (2B)  Without limiting paragraph (2)(c), the plan may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

          (2C)  The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

                     (a)  letter; and

                     (b)  telephone, email or any other electronic means.

             (3)  An agreement may be a parenting plan:

                     (a)  whether made before or after the commencement of this section; and

                     (b)  whether made inside or outside Australia; and

                     (c)  whether other persons as well as a child’s parents are also parties; and

                     (d)  whether it deals with other matters as well as matters mentioned in subsection (2).

Note:          One of the other matters with which a parenting plan may deal is child support (see section 63CAA).

             (4)  Provisions of a parenting plan that deal with matters other than the maintenance of a child are child welfare provisions.

             (5)  Provisions of a parenting plan that deal with the matter mentioned in paragraph (2)(f) are child maintenance provisions.

             (6)  A registered parenting plan is a parenting plan:

                     (a)  that was registered in a court under section 63E as in force at any time before the commencement of the Family Law Amendment Act 2003; and

                     (b)  that continued to be registered immediately before the commencement of the Family Law Amendment Act 2003.

63CAA  Parenting plans may include child support provisions

             (1)  If a parenting plan includes provisions of a kind referred to in subsection 84(1) of the Child Support (Assessment) Act 1989, the provisions do not have effect for the purposes of this Act.

             (2)  Subsection (1) does not affect the operation of the provisions for any other purpose.

             (3)  Nothing in this Division is to be taken to prevent the same agreement being both a parenting plan under this Part and a child support agreement under Part 6 of the Child Support (Assessment) Act 1989.

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

                   A parenting plan, other than a plan to which section 63DB applies, may be varied or revoked by agreement in writing between the parties to the plan.

63DA  Obligations of advisers

          (1A)  The obligations of an adviser under this section are in addition to the adviser’s obligations under section 60D.

Note:          Section 60D deals with an adviser’s obligations in relation to the best interests of the child.

             (1)  If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must:

                     (a)  inform them that they could consider entering into a parenting plan in relation to the child; and

                     (b)  inform them about where they can get further assistance to develop a parenting plan and the content of the plan.

             (2)  If an adviser gives advice to people in connection with the making by those people of a parenting plan in relation to a child, the adviser must:

                     (a)  inform them that, if the child spending equal time with each of them is:

                              (i)  reasonably practicable; and

                             (ii)  in the best interests of the child;

                            they could consider the option of an arrangement of that kind; and

                     (b)  inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is:

                              (i)  reasonably practicable; and

                             (ii)  in the best interests of the child;

                            they could consider the option of an arrangement of that kind; and

                     (d)  inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2); and

                     (e)  inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 64D) include a provision that the order is subject to a parenting plan they enter into; and

                      (f)  inform them about the desirability of including in the plan:

                              (i)  if they are to share parental responsibility for the child under the plan—provisions of the kind referred to in paragraph 63C(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and

                             (ii)  provisions of the kind referred to in paragraph 63C(2)(g) (which deals with the process for resolving disputes between the parties to the plan); and

                            (iii)  provisions of the kind referred to in paragraph 63C(2)(h) (which deals with the process for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan); and

                     (g)  explain to them, in language they are likely to readily understand, the availability of programs to help people who experience difficulties in complying with a parenting plan; and

                     (h)  inform them that section 65DAB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so.

Note:          Paragraphs (a) and (b) only require the adviser to inform the people that they could consider the option of the child spending equal time, or substantial and significant time, with each of them. The adviser may, but is not obliged to, advise them as to whether that option would be appropriate in their particular circumstances.

             (3)  For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if:

                     (a)  the time the child spends with the parent includes both:

                              (i)  days that fall on weekends and holidays; and

                             (ii)  days that do not fall on weekends or holidays; and

                     (b)  the time the child spends with the parent allows the parent to be involved in:

                              (i)  the child’s daily routine; and

                             (ii)  occasions and events that are of particular significance to the child; and

                     (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

             (4)  Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant.

             (5)  In this section:

adviser means a person who is:

                     (a)  a legal practitioner; or

                     (b)  a family counsellor; or

                     (c)  a family dispute resolution practitioner; or

                     (d)  a family consultant.

63DB  Registered parenting plans

Application of section

             (1)  This section applies to a registered parenting plan.

Saving of registered parenting plan

             (2)  A registered parenting plan continues in force until revoked in accordance with section 63E, or set aside, varied or discharged as referred to in section 63H.

No variation of registered parenting plan

             (3)  A registered parenting plan cannot be varied.

Revocation of registered parenting plan

             (4)  Subject to subsection (5), a registered parenting plan may be revoked by agreement in writing between the parties to the plan.

Registration of revocation required

             (5)  An agreement revoking a registered parenting plan:

                     (a)  may, subject to the applicable Rules of Court, be registered, in a court having jurisdiction under this Part, under section 63E; and

                     (b)  does not have effect to revoke the plan until it is so registered.

63E  Registration of a revocation of a registered parenting plan

             (1)  This section applies to a registered parenting plan.

             (2)  To apply for registration of an agreement (revocation agreement) revoking a registered parenting plan:

                     (a)  an application for registration of the revocation agreement must be lodged in accordance with the applicable Rules of Court; and

                     (b)  the application must be accompanied by:

                              (i)  a copy of the revocation agreement; and

                             (ii)  the information required by the applicable Rules of Court; and

                            (iii)  a statement, in relation to each party, that is to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement and that is signed by the practitioner who provided that advice.

             (3)  The court may register the revocation agreement if it considers it appropriate to do so having regard to the best interests of the child to whom the agreement relates. In determining whether it is appropriate to register the revocation agreement, the court:

                     (a)  must have regard to the information accompanying the application for registration; and

                     (b)  may, but is not required to, have regard to all or any of the matters set out in subsections 60CC(2) and (3).

63F  Child welfare provisions of registered parenting plans

Application of section

             (1)  This section applies to a registered parenting plan that contains child welfare provisions.

             (2)  The court may, by order, vary the child welfare provisions in the plan if it considers the variation is required in the best interests of a child.

             (3)  The child welfare provisions have effect, subject to subsections (5) and (6), as if they were provisions of a parenting order.

Note:          Provisions of this Act relevant to the child welfare provisions having effect as provided in this subsection include:

(a)    Subdivisions C, D and E of Division 6 of this Part (dealing with obligations created by parenting orders (other than child maintenance orders)); and

(b)    Division 13A of this Part and Part XIII (dealing generally with enforcement of orders and sanctions for contravening orders); and

(c)    subsection 65D(2) (providing for discharge, variation, suspension and revival of parenting orders other than child maintenance orders); and

(d)    other provisions of this Act (including subsection 64B(6)) that refer to parenting orders.

             (4)  If provisions of the plan have effect under subsection (3) as a court order, a person who is a party to the plan is taken (for example, for the purposes of section 65Y) to be a party to the proceedings in which the order was made.

             (5)  Subsection (3) does not apply to the plan (whenever registered) to the extent (if at all) that the plan purports to determine that the child concerned is to live with a person who is not a parent of the child.

             (6)  Even though the plan is registered, the court, or another court having jurisdiction under this Part, must not enforce the child welfare provisions if it considers that to do so would be contrary to the best interests of a child.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

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

             (1)  This section applies if:

                     (a)  a registered parenting plan contains child maintenance provisions; and

                     (b)  the plan is not a maintenance agreement or, if it is a maintenance agreement, the child concerned is not a child of the relevant marriage.

             (2)  The child maintenance provisions have effect, subject to subsections (3), (4) and (5), as if they were a child maintenance order made by the court.

Note:          Provisions of this Act relevant to the child maintenance provisions having effect as a child maintenance order include:

(a)    Parts XIII and XIIIA (dealing generally with enforcement of orders and sanctions for contravening orders); and

(b)    section 66S (providing for discharge, variation, suspension and revival of child maintenance orders); and

(c)    other provisions of this Act that refer to parenting orders, or to child maintenance orders.

             (3)  Unless the plan provides otherwise, the child maintenance provisions (other than provisions for the periodic payment of maintenance) continue to operate in spite of the death of a party to the plan and operate in favour of, and are binding on, the legal personal representative of that party.

             (4)  If the child maintenance provisions include provisions (the periodic provisions) for the periodic payment of maintenance:

                     (a)  the periodic provisions continue to operate, if the plan so provides, in spite of the death of a party to the plan who is liable to make the periodic payments, and are binding on the legal personal representative of that party; but

                     (b)  the periodic provisions do not continue to operate, in spite of anything in the plan, after the death of the person entitled to receive the periodic payments.

             (5)  The child maintenance provisions have no effect, and are not enforceable in any way, at any time when an application could properly be made under the Child Support (Assessment) Act 1989 by one of the parties to the plan for administrative assessment of child support (within the meaning of that Act) for the child concerned.

Note:          This subsection does not affect the operation of provisions of a parenting plan referred to in section 63CAA (child support matters).

             (6)  Subsection (5) has effect whether or not an application for administrative assessment of child support for the child has in fact been made by a party to the plan.

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

          (1A)  This section applies to a registered parenting plan.

             (1)  The court in which the plan was registered may set aside the plan, and its registration, if the court is satisfied:

                     (a)  that the concurrence of a party was obtained by fraud, duress or undue influence; or

                     (b)  that the parties want the plan set aside; or

                     (c)  that it is in the best interests of a child to set aside the plan.

             (2)  In proceedings under subsection (1), to the extent that they are proceedings on the ground mentioned in paragraph (1)(c), the best interests of the child concerned are the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

             (3)  Other provisions of this Act under which provisions of the parenting plan may be set aside or otherwise affected are:

                     (a)  subsection 63F(2)—under that subsection a court may vary child welfare provisions in the plan; and

                     (b)  subsection 65D(2)—under that subsection a court may make a parenting order that discharges, varies, suspends or revives provisions of the plan that have effect as if they were a parenting order (other than a child maintenance order); and

                     (c)  section 66S—under that section a court may discharge, vary, suspend or revive provisions of the plan that have effect as if they were a child maintenance order.

             (4)  Except as permitted by subsection (1) or by a provision mentioned in subsection (3), a court must not set aside, discharge, vary, suspend or revive the whole or a part of the parenting plan.

Division 5Parenting orders—what they are

64A  What this Division does

                   This Division explains what parenting orders are.

64B  Meaning of parenting order and related terms

             (1)  A parenting order is:

                     (a)  an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

                     (b)  an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

However, a declaration or order under Subdivision E of Division 12 is not a parenting order.

             (2)  A parenting order may deal with one or more of the following:

                     (a)  the person or persons with whom a child is to live;

                     (b)  the time a child is to spend with another person or other persons;

                     (c)  the allocation of parental responsibility for a child;

                     (d)  if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

                     (e)  the communication a child is to have with another person or other persons;

                      (f)  maintenance of a child;

                     (g)  the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

                              (i)  a child to whom the order relates; or

                             (ii)  the parties to the proceedings in which the order is made;

                     (h)  the process to be used for resolving disputes about the terms or operation of the order;

                      (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note:          Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

             (3)  Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

             (4)  The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

                     (a)  letter; and

                     (b)  telephone, email or any other electronic means.

          (4A)  Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:

                     (a)  resolving any dispute about the terms or operation of the order; or

                     (b)  reaching agreement about changes to be made to the order.

             (5)  To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order.

             (6)  For the purposes of this Act:

                     (a)  a parenting order that provides that a child is to live with a person is made in favour of that person; and

                     (b)  a parenting order that provides that a child is to spend time with a person is made in favour of that person; and

                     (c)  a parenting order that provides that a child is to have communication with a person is made in favour of that person; and

                     (d)  a parenting order that:

                              (i)  allocates parental responsibility for a child to a person; or

                             (ii)  provides that a person is to share parental responsibility for a child with another person;

                            is made in favour of that person.

             (9)  In this section:

this Act includes:

                     (a)  the standard Rules of Court; and

                     (b)  the related Federal Circuit Court Rules.

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

                   A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

64D  Parenting orders subject to later parenting plans

             (1)  Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:

                     (a)  entered into subsequently by the child’s parents; and

                     (b)  agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.

             (2)  The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).

             (3)  Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:

                     (a)  circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

                     (b)  the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.

Division 6Parenting orders other than child maintenance orders

Subdivision AIntroductory

65A  What this Division does

             (1)  This Division deals with:

                     (a)  applying for and making parenting orders, other than child maintenance orders (Subdivision B); and

                     (b)  the general obligations created by parenting orders, other than child maintenance orders (Subdivision C); and

                     (c)  dealing with people who have been arrested (Subdivision D); and

                     (d)  the obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia (Subdivision E).

Note:          Paragraph (a)—section 60I provides that people with disputes about matters that may be dealt with in a Part VII order (which includes a parenting order) should generally make use of family dispute resolution before applying for the order.

             (2)  Measures designed to improve communication between separated parents and to educate parents about their respective responsibilities in relation to their children are contained in this Division (see section 65DA).

Note:          Division 13A provides for the compliance regime for dealing with contraventions, and alleged contraventions, of parenting orders.

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

                   Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

65B  Division does not apply to child maintenance orders

                   This Division does not apply to parenting orders to the extent that they consist of child maintenance orders. Child maintenance orders are dealt with in Division 7.

Subdivision BApplying for and making parenting orders

65C  Who may apply for a parenting order

                   A parenting order in relation to a child may be applied for by:

                     (a)  either or both of the child’s parents; or

                     (b)  the child; or

                   (ba)  a grandparent of the child; or

                     (c)  any other person concerned with the care, welfare or development of the child.

65D  Court’s power to make parenting order

             (1)  In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

             (2)  Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

             (3)  If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII:

                     (a)  the court must hear and determine the application as soon as practicable; and

                     (b)  if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision.

Note:          The applicant may apply to the Family Court or to the Federal Circuit Court of Australia for the application for the parenting order or for the proceedings under Subdivision E of Division 13A of Part VII, or both, to be transferred to the Federal Circuit Court of Australia or to the Family Court, as the case requires (see section 33B of this Act and section 39 of the Federal Circuit Court of Australia Act 1999).

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

Equal time

             (1)  Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

                     (a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

                     (b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

                     (c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

             (2)  Subject to subsection (6), if:

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

                     (b)  the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

the court must:

                     (c)  consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

                     (d)  consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

                     (e)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

             (3)  For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

                     (a)  the time the child spends with the parent includes both:

                              (i)  days that fall on weekends and holidays; and

                             (ii)  days that do not fall on weekends or holidays; and

                     (b)  the time the child spends with the parent allows the parent to be involved in:

                              (i)  the child’s daily routine; and

                             (ii)  occasions and events that are of particular significance to the child; and

                     (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

             (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

             (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

                     (a)  how far apart the parents live from each other; and

                     (b)  the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

                     (c)  the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

                     (d)  the impact that an arrangement of that kind would have on the child; and

                     (e)  such other matters as the court considers relevant.

Note:          Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Consent orders

             (6)  If:

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

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

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

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

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

65DAB  Court to have regard to parenting plans

                   When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.

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

             (1)  This section applies if, under a parenting order:

                     (a)  2 or more persons are to share parental responsibility for a child; and

                     (b)  the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

             (2)  The order is taken to require the decision to be made jointly by those persons.

Note:          Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

             (3)  The order is taken to require each of those persons:

                     (a)  to consult the other person in relation to the decision to be made about that issue; and

                     (b)  to make a genuine effort to come to a joint decision about that issue.

             (4)  To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

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

             (1)  If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

                     (a)  has parental responsibility for the child; or

                     (b)  shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.

Note:          This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

             (2)  Subsection (1) applies subject to any provision to the contrary made by a parenting order.

65DA  Parenting orders

             (1)  This section applies when a court makes a parenting order.

             (2)  It is the duty of the court to include in the order particulars of:

                     (a)  the obligations that the order creates; and

                     (b)  the consequences that may follow if a person contravenes the order.

             (3)  If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons:

                     (a)  the availability of programs to help people to understand their responsibilities under parenting orders; and

                     (b)  the availability and use of location and recovery orders to ensure that parenting orders are complied with.

             (4)  The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in paragraphs (3)(a) and (b).

             (5)  If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner:

                     (a)  to assist in explaining to the person the matters mentioned in paragraphs (2)(a) and (b); and

                     (b)  to explain to the person the matters mentioned in paragraphs (3)(a) and (b).

             (6)  If a request is made by the court to a legal practitioner under paragraph (5)(a) or (b), it is the duty of the practitioner to comply with the request.

             (7)  Failure to comply with a requirement of, or with a request made under, this section does not affect the validity of a parenting order.

             (8)  Any matter that is required by this section to be included in a parenting order or any explanation that is required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given.

65F  General requirements for counselling before parenting order made

             (2)  Subject to subsection (3), a court must not make a parenting order in relation to a child unless:

                     (a)  the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or

                     (b)  the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

                     (c)  the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

             (3)  Subsection (2) does not apply to the making of a parenting order if:

                     (a)  it is made with the consent of all the parties to the proceedings; or

                     (b)  it is an order until further order.

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

             (1)  This section applies if:

                     (a)  a court proposes to make a parenting order that deals with whom a child is to live with; and

                     (b)  under the order, the child would not live with a parent, grandparent or other relative of the child; and

                     (c)  the court proposes to make that order with the consent of all the parties to the proceedings.

          (1A)  This section also applies if:

                     (a)  a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and

                     (b)  under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and

                     (c)  the court proposes to make that order with the consent of all the parties to the proceedings.

             (2)  The court must not make the proposed order unless:

                     (a)  the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or

                     (b)  the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.

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

             (1)  A parenting order must not be made in relation to a child who:

                     (a)  is 18 or over; or

                     (b)  is or has been married; or

                     (c)  is in a de facto relationship.

             (2)  A parenting order in relation to a child stops being in force if the child turns 18, marries or enters into a de facto relationship.

             (3)  A court having jurisdiction under this Part may make a declaration to the effect that the child is in, or has entered into, a de facto relationship.

             (4)  A declaration under subsection (3) has effect for the purposes of this Act but does not have effect for any other purpose (including, for example, other laws of the Commonwealth or laws of the States and Territories).

65J  Effect of adoption on parenting order

             (1)  This section applies if:

                     (a)  a child is adopted; and

                     (b)  immediately before the adoption, a parenting order was in force in relation to the child.

             (2)  The parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

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

             (1)  This section applies if:

                     (a)  a parenting order is in force that provides that a child is to live with one of the child’s parents; and

                     (b)  that parent dies; and

                     (c)  the parenting order does not provide for what is to happen on that parent’s death.

             (2)  The surviving parent cannot require the child to live with him or her.

             (3)  The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.

             (4)  In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.

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

             (1)  If a court makes a parenting order in relation to a child, the court may also, subject to subsection (2), make either or both of the following orders:

                     (a)  an order requiring compliance with the parenting order, as far as practicable, to be supervised by a family consultant;

                     (b)  an order requiring a family consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order.

             (2)  In deciding whether to make a particular order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

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

             (1)  In proceedings for a parenting order, the court may make an order directing a party to the proceedings to attend a post‑separation parenting program.

Note:          Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the party’s needs (see section 11E).

             (2)  In deciding whether to make a particular order under subsection (1), a court must regard the best interests of the child as the paramount consideration.

Note:          Sections 60CB to 60CG deal with how a court determines a child’s best interests.

             (3)  In this section:

proceedings for a parenting order includes:

                     (a)  proceedings for the enforcement of a parenting order; and

                     (b)  any other proceedings in which a contravention of a parenting order is alleged.

65LB  Conditions for providers of post‑separation parenting programs

             (1)  An organisation meets the conditions in this section if:

                     (a)  it is a recipient organisation (see subsection (2)); or

                     (b)  there is a recipient organisation in relation to the organisation (see subsection (3)).

             (2)  An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order to provide services that include post‑separation parenting programs.

             (3)  An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if:

                     (a)  both:

                              (i)  the other organisation is a member of the organisation; and

                             (ii)  the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation’s members may provide services that include post‑separation parenting programs; or

                     (b)  both:

                              (i)  the organisation acts on behalf of a group of organisations that includes the other organisation; and

                             (ii)  the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include post‑separation parenting programs.

             (4)  The Minister may, in writing, designate for the purposes of this section:

                     (a)  a program; or

                     (b)  part of a program;

administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making post‑separation parenting programs available.

             (5)  An instrument under this section is not a legislative instrument.

Subdivision CGeneral obligations created by certain parenting orders

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

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with.

             (2)  A person must not, contrary to the order:

                     (a)  remove the child from the care of a person; or

                     (b)  refuse or fail to deliver or return the child to a person; or

                     (c)  interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.

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

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

             (2)  A person must not:

                     (a)  hinder or prevent a person and the child from spending time together in accordance with the order; or

                     (b)  interfere with a person and the child benefiting from spending time with each other under the order.

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

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.

             (2)  A person must not:

                     (a)  hinder or prevent a person and the child from communicating with each other in accordance with the order; or

                     (b)  interfere with the communication that a person and the child are supposed to have with each other under the order.

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

             (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order allocates parental responsibility for the child to a person (the carer).

             (2)  A person must not hinder the carer in, or prevent the carer from, discharging that responsibility.

65Q  Court may issue warrant for arrest of alleged offender

             (1)  This section applies if:

                     (a)  a parenting order provides that:

                              (i)  a child is to live with a person; or

                             (ii)  a child is to spend time with a person; or

                            (iii)  a child is to communicate with a person; and

                     (b)  a court having jurisdiction under this Part is satisfied, on application by the person referred to in paragraph (1)(a), that there are reasonable grounds for believing that a person (the alleged offender) has contravened section 65M, 65N or 65NA in relation to the order; and

                     (c)  there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

                     (d)  the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Division 13A for the alleged contravention.

             (2)  The court may issue a warrant authorising a person to whom it is addressed to arrest the alleged offender.

             (3)  A warrant stops being in force:

                     (a)  if a date not later than 6 months after the issue of the warrant is specified in the warrant as the date when it stops being in force—on that date; or

                     (b)  otherwise—6 months after the issue of the warrant.

Subdivision DDealing with people who have been arrested

65R  Situation to which Subdivision applies

                   This Subdivision applies if a person:

                     (a)  is arrested under a warrant issued under subsection 65Q(2); or

                     (b)  is arrested without warrant under a recovery order.

65S  Arrested person to be brought before a court

             (1)  The arresting person must:

                     (a)  ensure that the alleged offender is brought before a court having jurisdiction under this Part before the end of the holding period applicable under subsection (4); and

                     (b)  take all reasonable steps to ensure that, before the alleged offender is brought before a court, the person who applied for the warrant or recovery order is aware:

                              (i)  that the alleged offender has been arrested; and

                             (ii)  of the court before which the alleged offender is to be brought.

             (2)  The alleged offender must not be released before the end of the holding period except under an order of a court having jurisdiction under this Part.

             (3)  This section does not authorise the holding in custody of the alleged offender after the end of the holding period.

             (4)  The holding period is:

                     (a)  if a Saturday, Sunday or public holiday starts within 24 hours after the arrest of the alleged offender—the longer of the following periods:

                              (i)  the period starting with the arrest and ending 48 hours later;

                             (ii)  the period starting with the arrest and ending at the end of the next day after the day of the arrest that is not a Saturday, Sunday or public holiday; or

                     (b)  in any other case—the period starting with the arrest and ending 24 hours later.

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

             (1)  This section applies if:

                     (a)  the alleged offender is brought before a court under section 65S; and

                     (b)  there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

             (2)  The court must, without delay, proceed to hear and determine the application.

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

             (1)  This section applies if:

                     (a)  the alleged offender is brought before a court under section 65S; and

                     (b)  there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

                     (c)  the court is aware that there is an application before another court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

             (2)  The court must, without delay:

                     (a)  order that the alleged offender is to be released from custody on his or her entering into a recognizance (with or without surety or security) that he or she will attend before the other court on a date, at a time and at a place specified by the court; or

                     (b)  order the arresting person to arrange for the alleged offender to be brought before the other court on such date and at such time as the court specifies, being a date and time such that the alleged offender is to be brought before the other court as soon as practicable, and in any event not more than 72 hours, after the order is made.

             (3)  If a court makes an order under paragraph (2)(b) for the alleged offender to be brought before another court:

                     (a)  subject to paragraph (c), the alleged offender may be kept in custody until he or she is brought before the other court; and

                     (b)  if the alleged offender is brought before the other court as required by the order, the other court must, without delay, proceed to hear and determine the application mentioned in paragraph (1)(c); and

                     (c)  if the alleged offender is not brought before the other court as required by the order, he or she must be released without delay.

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

             (1)  This section applies if:

                     (a)  the alleged offender is brought before a court under section 65S; and

                     (b)  there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

                     (c)  so far as the court is aware, there is no application, or no longer any application, before any other court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

             (2)  The court must, without delay, order the release of the alleged offender.

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

             (1)  If a court hearing an application as required by subsection 65T(2) or paragraph 65U(3)(b) adjourns the hearing, the court must:

                     (a)  order the alleged offender to be kept in such custody as the court considers appropriate during the adjournment; or

                     (b)  order that the alleged offender is to be released from custody, either on his or her entering into a recognizance (with or without surety or security) that he or she will attend before the court on the resumption of the hearing or otherwise.

             (2)  This section does not authorise the holding in custody of the alleged offender during an adjournment of proceedings that:

                     (a)  is expressed to be for a period of more than 24 hours; or

                     (b)  continues for more than 24 hours.

Subdivision EObligations under parenting orders relating to taking or sending children from Australia

65X  Interpretation

             (1)  In this Subdivision:

parenting order to which this Subdivision applies means a parenting order to the extent to which it provides, or would provide, that:

                     (a)  a child is to live with a person; or

                     (b)  a child is to spend time with a person; or

                     (c)  a child is to communicate with a person; or

                     (d)  a person is to have parental responsibility for a child.

             (2)  For the purposes of this Subdivision, if an appeal against a decision of a court in proceedings has been instituted and is pending, the proceedings are taken to be pending and sections 65Z and 65ZB (rather than sections 65Y and 65ZA) apply.

65Y  Obligations if certain parenting orders have been made

             (1)  If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).

Penalty:  Imprisonment for 3 years.

Note:          The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).

             (2)  Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

                     (a)  it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or

                     (b)  it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

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

             (1)  If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2).

Penalty:  Imprisonment for 3 years.

Note:          The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).

             (2)  Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

                     (a)  it is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or

                     (b)  it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

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

             (1)  This section applies if:

                     (a)  a parenting order to which this Subdivision applies is in force; and

                     (b)  a person in whose favour the order was made has served on the captain, owner or charterer of an aircraft or vessel a statutory declaration made by the person not earlier than 7 days before the date of service that:

                              (i)  relates to the order; and

                             (ii)  complies with subsection (4).

             (2)  The person on whom the declaration is served must not permit the child identified in the declaration to leave a port or place in Australia in the aircraft or vessel for a destination outside Australia except as permitted by subsection (3).

Penalty:  60 penalty units.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

             (3)  Subsection (2) does not prohibit permitting the child to leave Australia in the aircraft or vessel if:

                     (a)  the child leaves in the company, or with the consent in writing (authenticated as prescribed), of the person who made the statutory declaration; or

                     (b)  the child leaves in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  The statutory declaration must contain:

                     (a)  full particulars of the order, including:

                              (i)  the full name and the date of birth of the child to whom the order relates; and

                             (ii)  the full names of the parties to the proceedings in which the order was made; and

                            (iii)  the terms of the order; and

                     (b)  such other matters (if any) as are prescribed.

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

             (1)  This section applies if:

                     (a)  proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending; and

                     (b)  a party to the proceedings has served on the captain, owner or charterer of a vessel a statutory declaration made by the party not earlier than 7 days before the date of service that:

                              (i)  relates to the proceedings; and

                             (ii)  complies with subsection (4).

             (2)  The person on whom the declaration is served must not permit the child identified in the declaration to leave a port or place in Australia in the aircraft or vessel for a destination outside Australia except as permitted by subsection (3).

Penalty:  60 penalty units.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

             (3)  Subsection (2) does not prohibit permitting the child to leave Australia in the aircraft or vessel if:

                     (a)  the child leaves in the company, or with the consent in writing (authenticated as prescribed), of the party who made the statutory declaration; or

                     (b)  the child leaves in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  The statutory declaration must contain:

                     (a)  full particulars of the Part VII proceedings, including:

                              (i)  the full name and the date of birth of the child to whom the proceedings relate; and

                             (ii)  the full names of the parties to the proceedings; and

                            (iii)  the name of the court, the nature of the proceedings and the date of institution of the proceedings; and

                            (iv)  if an appeal has been instituted in the proceedings—the name of the court in which the appeal was instituted and the date on which it was instituted; and

                     (b)  a statement that the Part VII proceedings are pending at the date of the declaration; and

                     (c)  such other matters (if any) as are prescribed.

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

             (1)  A declaration under section 65ZA or 65ZB may be served on the owner or charterer of an aircraft or vessel, or on the agent of the owner of an aircraft or vessel, by sending the declaration by registered post addressed to the owner, charterer or agent at the principal place of business of the owner, charterer or agent.

             (2)  The captain, owner or charterer of an aircraft or vessel, or the agent of the owner of an aircraft or vessel, is not liable in any civil or criminal proceedings in respect of anything done in good faith for the purpose of complying with section 65ZA or 65ZB.

             (3)  If an act or omission by a person that constitutes an offence against subsection 65ZA(2) or 65ZB(2) is also an offence against any other law, the person may be prosecuted and convicted under that other law, but nothing in this subsection makes a person liable to be punished twice in respect of the same act or omission.

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

                   Nothing in this Subdivision prevents or restricts the operation of any law of a State or Territory under which:

                     (a)  action may be taken to prevent a child from leaving Australia or being taken or sent outside Australia; or

                     (b)  a person may be punished in respect of the taking or sending of a child outside Australia.

Division 7Child maintenance orders

Subdivision AWhat this Division does

66A  What this Division does

                   This Division:

                     (a)  contains statements of objects and principles relevant to the making of child maintenance orders (Subdivision B); and

                     (b)  deals with the relationship between this Division and the Child Support (Assessment) Act 1989 (Subdivision C); and

                     (c)  deals with applying for and making child maintenance orders (Subdivision D); and

                     (d)  deals with other aspects of courts’ powers in relation to child maintenance orders (Subdivision E); and

                   (da)  deals with varying the maintenance of certain children (Subdivision EA); and

                     (e)  deals with when child maintenance orders stop being in force (Subdivision F); and

                      (f)  deals with the recovery of amounts paid under maintenance orders (Subdivision G).

Subdivision BObjects and principles

66B  Objects

             (1)  The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

             (2)  Particular objects of this Division include ensuring:

                     (a)  that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

                     (b)  that parents share equitably in the support of their children.

66C  Principles—parents have primary duty to maintain

             (1)  The parents of a child have, subject to this Division, the primary duty to maintain the child.

             (2)  Without limiting the generality of subsection (1), the duty of a parent to maintain a child:

                     (a)  is not of lower priority than the duty of the parent to maintain any other child or another person; and

                     (b)  has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

                              (i)  himself or herself; or

                             (ii)  any other child or another person that the parent has a duty to maintain; and

                     (c)  is not affected by:

                              (i)  the duty of any other person to maintain the child; or

                             (ii)  any entitlement of the child or another person to an income tested pension, allowance or benefit.

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

             (1)  The step‑parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step‑parent to have that duty.

             (2)  Any duty of a step‑parent to maintain a step‑child:

                     (a)  is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and

                     (b)  does not derogate from the primary duty of the parents to maintain the child.

Subdivision CRelationship with Child Support (Assessment) Act

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

             (1)  A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.

             (2)  Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

             (3)  This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

Subdivision DApplying for and making child maintenance orders

66F  Who may apply for a child maintenance order

             (1)  Unless subsection (2) applies, a child maintenance order in relation to a child may be applied for by:

                     (a)  either or both of the child’s parents; or

                     (b)  the child; or

                   (ba)  a grandparent of the child; or

                     (c)  any other person concerned with the care, welfare or development of the child.

             (2)  A child maintenance order in relation to a child who is under the guardianship, or in the care (however described), of a person under a child welfare law may only be applied for by:

                     (a)  the child; or

                     (b)  a parent of the child who has the daily care of the child; or

                     (c)  a relative of the child who has the daily care of the child; or

                     (d)  a child welfare officer of the relevant State or Territory.

66G  Court’s power to make child maintenance order

                   In proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper.

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

                   In proceedings for the making of a child maintenance order in relation to a child, the court must:

                     (a)  consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J); and

                     (b)  determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 66K).

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

             (1)  In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

                     (a)  the matters mentioned in section 66B; and

                     (b)  the proper needs of the child (this is expanded on in subsection (2)); and

                     (c)  the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).

             (2)  In taking into account the proper needs of the child the court:

                     (a)  must have regard to:

                              (i)  the age of the child; and

                             (ii)  the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

                            (iii)  any special needs of the child; and

                     (b)  may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

             (3)  In taking into account the income, earning capacity, property and financial resources of the child, the court must:

                     (a)  have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

                     (b)  disregard:

                              (i)  the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

                             (ii)  any entitlement of the child or any other person to an income tested pension, allowance or benefit.

             (4)  Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

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

             (1)  In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

                     (a)  the matters mentioned in sections 66B, 66C and 66D; and

                     (b)  the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

                     (c)  the commitments of the party, or each of those parties, that are necessary to enable the party to support:

                              (i)  himself or herself; or

                             (ii)  any other child or another person that the person has a duty to maintain; and

                     (d)  the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

                     (e)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

             (2)  In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

             (3)  In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

             (4)  In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:

                     (a)  any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

                     (b)  the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

             (5)  In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

                     (a)  by way of lump sum payment; or

                     (b)  by way of transfer or settlement of property; or

                     (c)  in any other way.

             (6)  Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

66L  Children who are 18 or over

             (1)  A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:

                     (a)  to enable the child to complete his or her education; or

                     (b)  because of a mental or physical disability of the child.

The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

             (2)  A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:

                     (a)  to enable the child to complete his or her education; or

                     (b)  because of a mental or physical disability of the child.

             (3)  A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.

66M  When step‑parents have a duty to maintain

             (1)  As stated in section 66D, a step‑parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.

             (2)  A court having jurisdiction under this Part may, by order, determine that it is proper for a step‑parent to have a duty of maintaining a step‑child.

             (3)  In making an order under subsection (2), the court must have regard to these (and no other) matters:

                     (a)  the matters referred to in sections 60F, 66B and 66C; and

                     (b)  the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and

                     (c)  the relationship that has existed between the step‑parent and the child; and

                     (d)  the arrangements that have existed for the maintenance of the child; and

                     (e)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

66N  Determining financial contribution of step‑parent

                   In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step‑parent of the child, the court must take into account:

                     (a)  the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and

                     (b)  the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.

Subdivision EOther aspects of courts’ powers

66P  General powers of court

             (1)  In proceedings for a child maintenance order, a court may do all or any of the following:

                     (a)  order payment of a lump sum, whether in one amount or by instalments;

                     (b)  order payment of a weekly, monthly, yearly or other periodic amount;

                     (c)  order that a specified transfer or settlement of property be made by way of maintenance for a child;

                     (d)  order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

                     (e)  order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

                      (f)  order that payment be made to a specified person or public authority or into court;

                     (g)  make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;

                     (h)  make an order imposing terms and conditions;

                      (i)  make an order by consent;

                      (j)  make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (i)) that it considers appropriate;

                     (k)  make an order under this Division at any time.

             (2)  The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Division, in relation to the maintenance of a child does not prevent a court from making a subsequent order in relation to the maintenance of the child.

             (3)  The applicable Rules of Court may make provision with respect to the making of orders under this Division (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

66Q  Urgent child maintenance orders

                   If, in proceedings for a child maintenance order in relation to a child:

                     (a)  the court considers that the child is in immediate need of financial assistance; but

                     (b)  it is not practicable in the circumstances to determine immediately what order (if any) should be made;

the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate.

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

             (1)  If:

                     (a)  a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a child, is made by consent or varies an earlier order) that has the effect of requiring:

                              (i)  payment of a lump sum, whether in one amount or by instalments; or

                             (ii)  the transfer or settlement of property; and

                     (b)  the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a child or children;

the court must:

                     (c)  express the order to be an order to which this section applies; and

                     (d)  specify:

                              (i)  the child or children for whose maintenance provision is made by the payment, transfer or settlement; and

                             (ii)  the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the child or each child, as the case may be.

             (2)  If:

                     (a)  a court makes an order of a kind referred to in paragraph (1)(a); and

                     (b)  the order:

                              (i)  is not expressed to be an order to which this section applies; or

                             (ii)  is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d);

any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, is to be taken not to make provision for the maintenance of a child.

66S  Modification of child maintenance orders

             (1)  This section applies if:

                     (a)  there is in force an order (the first order), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):

                              (i)  made by a court; or

                             (ii)  registered in a court; and

                     (b)  a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.

          (1A)  With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:

                     (a)  discharging the first order; or

                     (b)  suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

                     (c)  if the operation of the order has been suspended under paragraph (b) or (2)(b)—reviving its operation wholly or in part; or

                     (d)  varying the order:

                              (i)  so as to increase or decrease any amount ordered to be paid by the order; or

                             (ii)  in any other way.

          (1B)  However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child’s parents to maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

             (2)  In any other case, the court may, by order:

                     (a)  discharge the first order if there is just cause for so doing; or

                     (b)  suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

                     (c)  if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or

                     (d)  subject to subsection (3), vary the order:

                              (i)  so as to increase or decrease any amount ordered to be paid by the order; or

                             (ii)  in any other way.

             (3)  The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:

                     (a)  that, since the order was made or last varied:

                              (i)  the circumstances of the child have changed so as to justify the variation; or

                             (ii)  the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or

                            (iii)  the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or

                            (iv)  in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such as to justify the variation; or

                     (b)  that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or

                     (c)  if the order was made by consent—that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or

                     (d)  that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.

             (4)  In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

             (5)  The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.

             (6)  In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.

             (7)  An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.

             (8)  If an order (the subsequent order) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.

             (9)  If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.

           (10)  For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).

           (11)  The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.

Subdivision EAVarying the maintenance of certain children

66SA  Varying the maintenance of certain children

             (1)  This section applies to persons who:

                     (a)  are parties to an agreement (the original agreement) dealing with the maintenance of a child; or

                     (b)  are entitled to receive, or required to pay, maintenance in respect of a child under a court order;

and cannot properly make an application under the Child Support (Assessment) Act 1989 for the other person to be assessed in respect of the costs of the child.

             (2)  The persons may, by registering a written agreement in a court having jurisdiction under this Part, vary or revoke the original agreement or order to the extent that it deals with maintenance of the child.

             (3)  However, the registered agreement is of no effect to the extent that it allows any entitlement of a child or another person to an income tested pension, allowance or benefit to affect the duty of that child’s parents to maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

             (4)  If the original agreement or order is varied under subsection (2), it:

                     (a)  continues to operate despite the death of a party to the agreement or of a person entitled to receive, or required to pay, maintenance under the order; and

                     (b)  operates in favour of, and is binding on, the legal representative of that party or person;

unless the agreement or order provides otherwise.

             (5)  However, despite anything in the agreement or order, it does not continue to operate, to the extent that it requires the periodic payment of maintenance, after the death of the person entitled to receive those payments.

             (6)  This section applies despite anything in Division 4.

Subdivision FWhen child maintenance orders stop being in force

66T  Effect of child turning 18

                   As stated in subsection 66L(3), a child maintenance order in relation to a child stops being in force when the child turns 18, unless the order is expressed to continue in force after then.

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

             (1)  A child maintenance order in relation to a child stops being in force on the death of the child.

             (2)  A child maintenance order in relation to a child stops being in force on the death of the person liable to make payments under the order.

             (3)  Subsection (2) does not apply to an order made before the commencement of section 38 of the Family Law Amendment Act 1983 if the order was expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the death of the person liable to make payments under the order and, in that case, the order is binding on the legal personal representative of the deceased person.

             (4)  A child maintenance order in relation to a child stops being in force on the death of the person entitled to receive payments under the order.

             (5)  Subsection (4) does not apply to an order if:

                     (a)  the order is expressed to continue in force after the death of the person first entitled to receive payments under the order; and

                     (b)  the order specifies the person who is to receive the payments after that death.

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

             (1)  A child maintenance order in relation to a child stops being in force if the child is adopted, marries or enters into a de facto relationship.

             (2)  If a child to whom a child maintenance order applies dies, is adopted, marries or enters into a de facto relationship, the person entitled to receive payments under the order must, without delay, inform the person liable to make payments under the order.

             (3)  Any amounts paid under a child maintenance order in relation to a period after the child dies, is adopted, marries or enters into a de facto relationship may be recovered in a court having jurisdiction under this Part.

             (4)  A court having jurisdiction under this Part may make a declaration to the effect that a child is in, or has entered into, a de facto relationship.

             (5)  A declaration under subsection (4) has effect for the purposes of this Act but does not have effect for any other purpose (including, for example, other laws of the Commonwealth or laws of the States and Territories).

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

             (1)  A child maintenance order made under section 66L:

                     (a)  to enable the child to complete his or her education; or

                     (b)  because of a mental or physical disability of the child;

stops being in force if the child ceases that education or ceases to have that disability.

             (2)  The person to whom the maintenance is payable must, as soon as practicable, inform the person required to pay it of that change in circumstances.

             (3)  Any amounts of maintenance paid und