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........................................ 32
4A......................... Third party proceedings to set aside financial agreement.. 33
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........... 38
6............................ Polygamous marriages...................................................... 39
7............................ Extension of Act to certain Territories.............................. 39
7A......................... Application of the Criminal Code..................................... 39
8............................ Supersession of existing laws........................................... 39
Part IA—Protection of names 40
9A......................... Use of protected names and symbols................................ 40
Part II—Non‑court based family services 42
Division 1—Accreditation of family counsellors, family dispute resolution practitioners and other family service providers 42
10A....................... Accreditation Rules........................................................... 42
Division 2—Family counselling 44
10B........................ Definition of family counselling........................................ 44
10C........................ Definition of family counsellor......................................... 44
10D....................... Confidentiality of communications in family counselling. 45
10E........................ Admissibility of communications in family counselling and in referrals from family counselling 46
Division 3—Family dispute resolution 48
10F........................ Definition of family dispute resolution............................. 48
10G....................... Definition of family dispute resolution practitioner.......... 48
10H....................... Confidentiality of communications in family dispute resolution 49
10J......................... Admissibility of communications in family dispute resolution and in referrals from family dispute resolution.......................................................................................... 50
10K........................ Family dispute resolution practitioners must comply with regulations 51
Division 4—Arbitration 52
10L........................ Definition of arbitration................................................... 52
10M....................... Definition of arbitrator.................................................... 52
10N....................... Arbitrators may charge fees for their services................... 52
10P........................ Immunity of arbitrators..................................................... 53
Part IIA—Family safety risk screening 54
Division 1—Preliminary 54
10Q....................... Simplified outline of this Part........................................... 54
10R........................ Definition of family safety risk screening person............. 54
10S........................ Definition of family safety risk screening information...... 54
10T........................ Definition of family safety risk screening process............ 55
Division 2—Protection of family safety risk screening information 56
10U....................... Confidentiality of family safety risk screening information 56
10V....................... Admissibility of family safety risk screening information etc. 56
10W....................... Immunity of family safety risk screening persons............ 56
Part III—Family consultants 56
Division 1—About family consultants 56
11A....................... Functions of family consultants........................................ 56
11B........................ Definition of family consultant......................................... 56
11C........................ Admissibility of communications with family consultants and referrals from family consultants 56
11D....................... Immunity of family consultants........................................ 56
Division 2—Courts’ use of family consultants 56
11E........................ Courts to consider seeking advice from family consultants 56
11F........................ Court may order parties to attend, or arrange for child to attend, appointments with a family consultant 56
11G....................... Consequences of failure to comply with order under section 11F 56
Part IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services 56
Division 1—Introduction 56
12A....................... Objects of this Part........................................................... 56
Division 2—Kind of information to be provided 56
12B........................ Prescribed information about non‑court based family services and court’s processes and services 56
12C........................ Prescribed information about reconciliation...................... 56
12D....................... Prescribed information about Part VII proceedings.......... 56
Division 3—Who must provide information, and when 56
12E........................ Obligations on legal practitioners...................................... 56
12F........................ Obligations on principal executive officers of courts........ 56
12G....................... Obligations on family counsellors, family dispute resolution practitioners and arbitrators 56
Part IIIB—Court’s powers in relation to court and non‑court based family services 56
Division 1—Introduction 56
13A....................... Objects of this Part........................................................... 56
Division 2—Help with reconciliation 56
13B........................ Court to accommodate possible reconciliations................. 56
Division 3—Referrals to family counselling, family dispute resolution and other family services 56
13C........................ Court may refer parties to family counselling, family dispute resolution and other family services 56
13D....................... Consequences of failure to comply with order under section 13C 56
Division 4—Court’s role in relation to arbitration of disputes 56
13E........................ Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration 56
13F........................ Court may make orders to facilitate arbitration of certain disputes 56
13G....................... Federal Circuit and Family Court of Australia (Division 2) may determine questions of law referred by arbitrator........................................................................... 56
13H....................... Awards made in arbitration may be registered in court..... 56
13J......................... Federal Circuit and Family Court of Australia (Division 2) can review registered awards 56
13K........................ Federal Circuit and Family Court of Australia may set aside registered awards 56
Part V—Jurisdiction of courts 56
Division 1—Jurisdiction in matrimonial causes 56
39.......................... Jurisdiction in matrimonial causes.................................... 56
Division 2—Jurisdiction in de facto financial causes 56
39A....................... Instituting proceedings...................................................... 56
39B........................ Jurisdiction in de facto financial causes............................ 56
39C........................ Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia 56
39D....................... Ceasing jurisdiction of State or Territory courts of summary jurisdiction 56
39E........................ Revoking Proclamations ceasing jurisdiction of State or Territory courts 56
39F........................ Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory 56
39G....................... Jurisdiction in relation to transferred matters under other Commonwealth laws 56
Division 2A—Jurisdiction in matters arising under Part VIIIC 56
39H....................... Instituting proceedings...................................................... 56
39J......................... Jurisdiction in matters arising under Part VIIIC............... 56
Division 3—Other provisions 56
40.......................... Limitations on jurisdiction of Federal Circuit and Family Court of Australia (Division 2) and of State and Territory Supreme Courts................................................. 56
41.......................... Establishment of State Family Courts............................... 56
42.......................... Law to be applied.............................................................. 56
43.......................... Principles to be applied by courts..................................... 56
44.......................... Institution of proceedings................................................. 56
44A....................... Proceedings for divorce order........................................... 56
45.......................... Stay and transfer of proceedings....................................... 56
45A....................... Summary decrees.............................................................. 56
46.......................... Transfer of proceedings from court of summary jurisdiction in certain cases 56
46A....................... Prescribing value of property for the purposes of section 46 56
47.......................... Courts to act in aid of each other....................................... 56
Division 4—Appeals 56
47A....................... Appeals from courts of summary jurisdiction................... 56
47B........................ Leave to appeal needed for child support matters.............. 56
47BA..................... Appeals relating to matters arising under Part VIIIC........ 56
47C........................ Appeal may be dismissed if no reasonable prospect of success 56
47D....................... Appeals to High Court may not be brought...................... 56
47E........................ Regulations to be sole source of certain appellate jurisdiction 56
Part VI—Divorce and nullity of marriage 56
48.......................... Divorce............................................................................. 56
49.......................... Meaning of separation...................................................... 56
50.......................... Effect of resumption of cohabitation................................. 56
51.......................... Nullity of marriage............................................................ 56
52.......................... Court not to make divorce order where application for decree of nullity before it 56
53.......................... Circumstances occurring before commencement of Act or outside Australia 56
55.......................... When divorce order takes effect........................................ 56
55A....................... Divorce order where children........................................... 56
56.......................... Certificate as to divorce order........................................... 56
57.......................... Rescission of divorce order where parties reconciled....... 56
58.......................... Rescission of divorce order on ground of miscarriage of justice 56
59.......................... Remarriage........................................................................ 56
60.......................... No appeal after divorce order takes effect......................... 56
Part VII—Children 56
Division 1—Introductory 56
Subdivision A—What this Division does 56
60A....................... What this Division does.................................................... 56
Subdivision B—Object, principles and outline 56
60B........................ Objects of Part and principles underlying it...................... 56
60C........................ Outline of Part.................................................................. 56
Subdivision BA—Best interests of the child: court proceedings 56
60CA..................... Child’s best interests paramount consideration in making a parenting order 56
60CB..................... Proceedings to which Subdivision applies........................ 56
60CC..................... How a court determines what is in a child’s best interests 56
60CD..................... How the views of a child are expressed............................ 56
60CE..................... Children not required to express views............................. 56
60CF..................... Informing court of relevant family violence orders........... 56
60CG..................... Court to consider risk of family violence.......................... 56
60CH..................... Informing court of care arrangements under child welfare laws 56
60CI...................... Informing court of notifications to, and investigations by, prescribed State or Territory agencies 56
Subdivision BB—Best interests of the child: adviser’s obligations 56
60D....................... Adviser’s obligations in relation to best interests of the child 56
Subdivision C—Interpretation and application of Part 56
60E........................ Application of Part to void marriages............................... 56
Subdivision D—Interpretation—how this Act applies to certain children 56
60EA..................... Definition of de facto partner........................................... 56
60F........................ Certain children are children of marriage etc..................... 56
60G....................... Leave may be granted for adoption proceedings by prescribed adopting parent 56
60H....................... Children born as a result of artificial conception procedures 56
60HA.................... Children of de facto partners............................................. 56
60HB..................... Children born under surrogacy arrangements................... 56
Subdivision E—Family dispute resolution 56
60I......................... Attending family dispute resolution before applying for Part VII order 56
60J......................... Family dispute resolution not attended because of child abuse or family violence 56
Division 2—Parental responsibility 56
61A....................... What this Division does.................................................... 56
61B........................ Meaning of parental responsibility................................... 56
61C........................ Each parent has parental responsibility (subject to court orders) 56
61D....................... Parenting orders and parental responsibility..................... 56
61DA.................... Presumption of equal shared parental responsibility when making parenting orders 56
61DB..................... Application of presumption of equal shared parental responsibility after interim parenting order made 56
61E........................ Effect of adoption on parental responsibility..................... 56
61F........................ Application to Aboriginal or Torres Strait Islander children 56
Division 3—Reports relating to children under 18 56
62A....................... What this Division does.................................................... 56
62B........................ Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services.................................. 56
62G....................... Reports by family consultants........................................... 56
Division 4—Parenting plans 56
63A....................... What this Division does.................................................... 56
63B........................ Parents encouraged to reach agreement............................. 56
63C........................ Meaning of parenting plan and related terms................... 56
63CAA.................. Parenting plans may include child support provisions...... 56
63D....................... Parenting plan may be varied or revoked by further written agreement 56
63DA.................... Obligations of advisers..................................................... 56
63DB..................... Registered parenting plans................................................ 56
63E........................ Registration of a revocation of a registered parenting plan 56
63F........................ Child welfare provisions of registered parenting plans..... 56
63G....................... Child maintenance provisions of registered parenting plans—where not enforceable as maintenance agreements........................................................................ 56
63H....................... Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans 56
Division 5—Parenting orders—what they are 56
64A....................... What this Division does.................................................... 56
64B........................ Meaning of parenting order and related terms................. 56
64C........................ Parenting orders may be made in favour of parents or other persons 56
64D....................... Parenting orders subject to later parenting plans............... 56
Division 6—Parenting orders other than child maintenance orders 56
Subdivision A—Introductory 56
65A....................... What this Division does.................................................... 56
65AA.................... Child’s best interests paramount consideration in making a parenting order 56
65B........................ Division does not apply to child maintenance orders........ 56
Subdivision B—Applying for and making parenting orders 56
65C........................ Who may apply for a parenting order............................... 56
65D....................... Court’s power to make parenting order............................ 56
65DAA................. Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.................................................................... 56
65DAB.................. Court to have regard to parenting plans............................ 56
65DAC.................. Effect of parenting order that provides for shared parental responsibility 56
65DAE.................. No need to consult on issues that are not major long‑term issues 56
65DA.................... Parenting orders................................................................ 56
65F........................ General requirements for counselling before parenting order made 56
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............. 56
65H....................... Children who are 18 or over or who have married or entered de facto relationships 56
65J......................... Effect of adoption on parenting order............................... 56
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.............. 56
65L........................ Family consultants may be required to supervise or assist compliance with parenting orders 56
65LA..................... Court may order attendance at a post‑separation parenting program 56
65LB..................... Conditions for providers of post‑separation parenting programs 56
Subdivision C—General obligations created by certain parenting orders 56
65M....................... General obligations created by parenting order that deals with whom a child lives with 56
65N....................... General obligations created by parenting order that deals with whom a child spends time with 56
65NA.................... General obligations created by parenting order that deals with whom a child communicates with 56
65P........................ General obligations created by parenting order that allocates parental responsibility 56
65Q....................... Court may issue warrant for arrest of alleged offender..... 56
Subdivision D—Dealing with people who have been arrested 56
65R........................ Situation to which Subdivision applies............................. 56
65S........................ Arrested person to be brought before a court.................... 56
65T........................ Obligation of court—where application before it to deal with contravention 56
65U....................... Obligation of court—where no application before it, but application before another court, to deal with contravention.................................................................... 56
65V....................... Obligation of court—where no application before any court to deal with contravention 56
65W....................... Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b) 56
Subdivision E—Obligations under parenting orders relating to taking or sending children from Australia 56
65X....................... Interpretation..................................................................... 56
65Y....................... Obligations if certain parenting orders have been made: taking or sending a child outside Australia 56
65YA.................... Obligations if certain parenting orders have been made: retaining a child outside Australia 56
65Z........................ Obligations if proceedings for the making of certain parenting orders are pending: taking or sending a child outside Australia............................................................... 56
65ZAA.................. Obligations if proceedings for the making of certain parenting orders are pending: retaining a child outside Australia........................................................................... 56
65ZA..................... Obligations of owners etc. of aircraft and vessels if certain parenting orders made 56
65ZB..................... Obligations of owners etc. of aircraft and vessels if proceedings for the making of certain parenting orders are pending............................................................................. 56
65ZC..................... General provisions applicable to sections 65ZA and 65ZB 56
65ZD..................... State or Territory laws stopping children leaving Australia not affected 56
65ZE...................... Extended geographical jurisdiction—category D.............. 56
Division 7—Child maintenance orders 56
Subdivision A—What this Division does 56
66A....................... What this Division does.................................................... 56
Subdivision B—Objects and principles 56
66B........................ Objects.............................................................................. 56
66C........................ Principles—parents have primary duty to maintain........... 56
66D....................... Principles—when step‑parents have a duty to maintain.... 56
Subdivision C—Relationship with Child Support (Assessment) Act 56
66E........................ Child maintenance order not to be made etc. if application for administrative assessment of child support could be made............................................................................. 56
Subdivision D—Applying for and making child maintenance orders 56
66F........................ Who may apply for a child maintenance order.................. 56
66G....................... Court’s power to make child maintenance order............... 56
66H....................... Approach to be taken in proceedings for child maintenance order 56
66J......................... Matters to be taken into account in considering financial support necessary for maintenance of child 56
66K........................ Matters to be taken into account in determining contribution that should be made by party etc. 56
66L........................ Children who are 18 or over............................................. 56
66M....................... When step‑parents have a duty to maintain....................... 56
66N....................... Determining financial contribution of step‑parent............. 56
Subdivision E—Other aspects of courts’ powers 56
66P........................ General powers of court................................................... 56
66Q....................... Urgent child maintenance orders....................................... 56
66R........................ Specification in orders of payments etc. for child maintenance purposes 56
66S........................ Modification of child maintenance orders......................... 56
Subdivision EA—Varying the maintenance of certain children 56
66SA..................... Varying the maintenance of certain children..................... 56
Subdivision F—When child maintenance orders stop being in force 56
66T........................ Effect of child turning 18.................................................. 56
66U....................... Effect of death of child, person liable to pay or person entitled to receive 56
66V....................... Effect of adoption, marriage or entering into a de facto relationship 56
66VA.................... Children who are 18 or over: change of circumstances..... 56
66W....................... Recovery of arrears........................................................... 56
Subdivision G—Recovery of amounts paid under maintenance orders 56
66X....................... Recovery of amounts paid, and property transferred or settled, under maintenance orders 56
Division 8—Other matters relating to children 56
Subdivision A—What this Division does 56
67A....................... What this Division does.................................................... 56
Subdivision B—Father’s liability to contribute towards child bearing expenses if not married to mother 56
67B........................ Father liable to contribute towards maintenance and expenses of mother 56
67C........................ Matters to be taken into account in proceedings under Subdivision 56
67D....................... Powers of court in proceedings under Subdivision.......... 56
67E........................ Urgent orders.................................................................... 56
67F........................ Who may institute proceedings......................................... 56
67G....................... Time limit for institution of proceedings........................... 56
Subdivision C—Location and recovery of children 56
67J......................... Meaning of location order and Commonwealth information order 56
67K........................ Who may apply for a location order.................................. 56
67L........................ Child’s best interests paramount consideration in making a location order 56
67M....................... Provisions about location orders, other than Commonwealth information orders 56
67N....................... Provisions about Commonwealth information orders....... 56
67P........................ Information provided under location order not to be disclosed except to limited persons 56
67Q....................... Meaning of recovery order............................................... 56
67R........................ How recovery orders authorise or direct people............... 56
67S........................ How recovery orders to stop and search etc. name or describe vehicles, places etc. 56
67T........................ Who may apply for a recovery order................................ 56
67U....................... Court’s power to make recovery order............................. 56
67V....................... Child’s best interests paramount consideration in making a recovery order 56
67W....................... How long recovery order remains in force....................... 56
67X....................... Persons not to prevent or hinder taking of action under recovery order 56
67Y....................... Obligation to notify persons of child’s return................... 56
Subdivision D—Allegations of child abuse and family violence 56
67Z........................ Where interested person makes allegation of child abuse.. 56
67ZA..................... Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc.................................................... 56
67ZB..................... No liability for notification under section 67Z or 67ZA.... 56
67ZBA.................. Where interested person makes allegation of family violence.. 56
67ZBB................... Court to take prompt action in relation to allegations of child abuse or family violence 56
Subdivision E—Other orders about children 56
67ZC..................... Orders relating to welfare of children............................... 56
67ZD..................... Orders for delivery of travel documents........................... 56
Division 9—Injunctions 56
68A....................... What this Division does.................................................... 56
68B........................ Injunctions........................................................................ 56
68C........................ Powers of arrest................................................................ 56
Division 10—Independent representation of child’s interests 56
68L........................ Court order for independent representation of child’s interests 56
68LA..................... Role of independent children’s lawyer.............................. 56
68M....................... Order that child be made available for examination........... 56
Division 11—Family violence 56
68N....................... Purposes of this Division................................................. 56
68P........................ Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order........................................... 56
68Q....................... Relationship of order or injunction made under this Act with existing inconsistent family violence order.......................................................................................... 56
68R........................ Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act.......................... 56
68S........................ Application of Act and Rules when exercising section 68R power 56
68T........................ Special provisions relating to proceedings to make an interim (or interim variation of) family violence order.......................................................................................... 56
Division 12—Proceedings and jurisdiction 56
Subdivision A—What this Division does 56
69A....................... What this Division does.................................................... 56
Subdivision B—Institution of proceedings and procedure 56
69B........................ Certain proceedings to be instituted only under this Part.. 56
69C........................ Who may institute proceedings......................................... 56
69D....................... Institution of maintenance proceedings by authorised authority or person 56
69E........................ Child or parent to be present in Australia etc.................... 56
69F........................ Applicant may be in contempt........................................... 56
Subdivision C—Jurisdiction of courts 56
69G....................... Interpretation..................................................................... 56
69GA.................... Operation of this Subdivision in relation to prescribed courts 56
69H....................... Jurisdiction of Federal Circuit and Family Court of Australia (Division 2), State Family Courts and Northern Territory Supreme Court................................................... 56
69J......................... Jurisdiction of courts of summary jurisdiction.................. 56
69K........................ Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory 56
69L........................ Jurisdiction in relation to transferred matters under other Commonwealth laws 56
69M....................... Jurisdiction is additional to other jurisdiction.................... 56
69N....................... Transfer of proceedings from courts of summary jurisdiction in certain cases 56
Subdivision D—Presumptions of parentage 56
69P........................ Presumptions of parentage arising from marriage............. 56
69Q....................... Presumption of paternity arising from cohabitation.......... 56
69R........................ Presumption of parentage arising from registration of birth 56
69S........................ Presumptions of parentage arising from findings of courts 56
69T........................ Presumption of paternity arising from acknowledgments. 56
69U....................... Rebuttal of presumptions etc............................................. 56
Subdivision E—Parentage evidence 56
69V....................... Evidence of parentage....................................................... 56
69VA.................... Declarations of parentage.................................................. 56
69W....................... Orders for carrying out of parentage testing procedures... 56
69X....................... Orders associated with parentage testing orders............... 56
69XA.................... Matters related particularly to parentage testing for purposes of an international agreement or arrangement.......................................................................................... 56
69Y....................... Orders directed to persons 18 or over............................... 56
69Z........................ Orders directed to children under 18................................. 56
69ZA..................... No liability if parent etc. consents..................................... 56
69ZB..................... Regulations about carrying out, and reporting on, parentage testing procedures 56
69ZC..................... Reports of information obtained may be received in evidence 56
69ZD..................... Parentage testing for purposes of international maintenance agreements 56
Subdivision F—Extension, application and additional operation of Part 56
69ZE...................... Extension of Part to the States.......................................... 56
69ZF...................... Unless declaration in force, Part’s extension to a State has effect subject to modifications 56
69ZG..................... Application of Part in, and in relation to, Territories......... 56
69ZH..................... Additional application of Part........................................... 56
69ZJ...................... Additional jurisdiction of courts....................................... 56
69ZK..................... Child welfare laws not affected......................................... 56
Subdivision G—Short form reasons for decisions relating to interim parenting orders 56
69ZL...................... Short form reasons for decisions relating to interim parenting orders 56
Division 12A—Principles for conducting child‑related proceedings 56
Subdivision A—Proceedings to which this Division applies 56
69ZM.................... Proceedings to which this Division applies...................... 56
Subdivision B—Principles for conducting child‑related proceedings 56
69ZN..................... Principles for conducting child‑related proceedings.......... 56
69ZO..................... This Division also applies to proceedings in Chambers.... 56
69ZP...................... Powers under this Division may be exercised on court’s own initiative 56
Subdivision C—Duties and powers related to giving effect to the principles 56
69ZQ..................... General duties................................................................... 56
69ZR..................... Power to make determinations, findings and orders at any stage of proceedings 56
69ZS...................... Use of family consultants................................................. 56
Subdivision D—Matters relating to evidence 56
69ZT...................... Rules of evidence not to apply unless court decides......... 56
69ZV..................... Evidence of children......................................................... 56
69ZW.................... Evidence relating to child abuse or family violence........... 56
69ZX..................... Court’s general duties and powers relating to evidence.... 56
Division 13—State, Territory and overseas orders 56
Subdivision A—What this Division does 56
70A....................... What this Division does.................................................... 56
Subdivision B—Registration of State and Territory orders 56
70C........................ General registration of orders made under law of prescribed State 56
70D....................... Registration of orders in a particular State........................ 56
70E........................ Effect of registration......................................................... 56
Subdivision C—Registration of overseas orders 56
70G....................... Registration of orders....................................................... 56
70H....................... Effect of registration—general.......................................... 56
70J......................... Effect of registration on exercise of jurisdiction................ 56
70K........................ Cancellation of registration if Subdivision C parenting order made 56
70L........................ Relationship between Australian orders and registered overseas child orders 56
Subdivision D—Transmission of Australian orders to overseas jurisdictions 56
70M....................... Registry Manager to send documents etc. to overseas jurisdiction 56
70N....................... Regulations may deal with sending Australian orders etc. to overseas jurisdiction 56
Division 13A—Consequences of failure to comply with orders, and other obligations, that affect children 56
Subdivision A—Preliminary 56
70NAA................. Simplified outline of Division........................................... 56
70NAB.................. Application of Division.................................................... 56
70NAC.................. Meaning of contravened an order..................................... 56
70NAD................. Requirements taken to be included in certain orders......... 56
70NAE.................. Meaning of reasonable excuse for contravening an order 56
70NAF.................. Standard of proof.............................................................. 56
Subdivision B—Court’s power to vary parenting order 56
70NBA.................. Variation of parenting order.............................................. 56
70NBB.................. Effect of parenting plan..................................................... 56
Subdivision C—Contravention alleged but not established 56
70NCA.................. Application of Subdivision............................................... 56
70NCB.................. Costs................................................................................. 56
Subdivision D—Contravention established but reasonable excuse for contravention 56
70NDA................. Application of Subdivision............................................... 56
70NDB.................. Order compensating person for time lost.......................... 56
70NDC.................. Costs................................................................................. 56
Subdivision E—Contravention without reasonable excuse (less serious contravention) 56
70NEA.................. Application of Subdivision............................................... 56
70NEB.................. Powers of court................................................................ 56
70NEC.................. Bonds............................................................................... 56
70NECA............... Procedure for enforcing bonds......................................... 56
70NED.................. Duties of provider of post‑separation parenting program. 56
70NEF................... Evidence........................................................................... 56
70NEG.................. Court may make further orders in relation to attendance at program 56
Subdivision F—Contravention without reasonable excuse (more serious contravention) 56
70NFA.................. Application of Subdivision............................................... 56
70NFB.................. Powers of court................................................................ 56
70NFC.................. When court is empowered to make a community service order 56
70NFD.................. Variation and discharge of community service orders...... 56
70NFE................... Bonds............................................................................... 56
70NFF................... Procedure for enforcing community service orders or bonds.. 56
70NFG.................. Sentences of imprisonment............................................... 56
70NFH.................. Relationship between Subdivision and other laws............ 56
70NFI.................... Arrangements with States and Territories for carrying out of sentences and orders 56
70NFJ................... Subdivision does not limit operation of section 105......... 56
Division 14—Miscellaneous 56
70P........................ What this Division does.................................................... 56
70Q....................... Certain instruments not liable to duty................................ 56
Part VIII—Property, spousal maintenance and maintenance agreements 56
71.......................... Interpretation..................................................................... 56
71A....................... This Part does not apply to certain matters covered by binding financial agreements 56
72.......................... Right of spouse to maintenance........................................ 56
74.......................... Power of court in spousal maintenance proceedings......... 56
75.......................... Matters to be taken into consideration in relation to spousal maintenance 56
77.......................... Urgent spousal maintenance cases.................................... 56
77A....................... Specification in orders of payments etc. for spouse maintenance purposes 56
78.......................... Declaration of interests in property................................... 56
79.......................... Alteration of property interests......................................... 56
79A....................... Setting aside of orders altering property interests............. 56
79B........................ Notification of proceeds of crime orders etc..................... 56
79C........................ Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc. 56
79D....................... Lifting a stay..................................................................... 56
79E........................ Intervention by proceeds of crime authority...................... 56
79F........................ Notifying third parties about application........................... 56
79G....................... Notifying bankruptcy trustee etc. about application under section 74, 78, 79 or 79A 56
79H....................... Notifying court about bankruptcy etc................................ 56
79J......................... Notifying non‑bankrupt spouse about application under section 139A of the Bankruptcy Act 1966 56
80.......................... General powers of court................................................... 56
81.......................... Duty of court to end financial relations............................. 56
82.......................... Cessation of spousal maintenance orders.......................... 56
83.......................... Modification of spousal maintenance orders..................... 56
85A....................... Ante‑nuptial and post‑nuptial settlements......................... 56
86A....................... Certain maintenance agreements ineffective...................... 56
86.......................... Registered maintenance agreements.................................. 56
87.......................... Operation of maintenance agreements entered into in substitution for rights under Act 56
87A....................... Specification in maintenance agreements of payments etc. for maintenance purposes 56
88.......................... Enforcement of maintenance agreements.......................... 56
89.......................... Overseas maintenance agreements.................................... 56
89A....................... Institution of spousal maintenance proceedings by authority or person 56
90.......................... Certain instruments not liable to duty................................ 56
An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and to financial matters arising out of the breakdown of de facto relationships and to certain other Matters
Part I—Preliminary
1 Short title
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 recognised 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 and the applicable Rules of Court:
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.
applicable Rules of Court:
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—means the Federal Circuit and Family Court of Australia (Division 1) Rules; and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—means the related Federal Circuit and Family Court of Australia (Division 2) Rules; and
(c) 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.
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.
Australian court means a federal court or a court of a State or Territory.
bankrupt: see subsection (6).
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 and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1).
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 has a meaning affected by subsections 60F(1), (2), (3) and (4).
child‑related proceedings has the meaning given by section 69ZM.
child welfare law means a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.
child welfare officer, in relation to a State or Territory, means:
(a) a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or
(b) a person authorised in writing by such a person for the purposes of Part VII.
child welfare provisions, in relation to a parenting plan, has the meaning given by subsection 63C(4).
Commonwealth information order has the meaning given by subsection 67J(2).
Commonwealth instrumentality means a body or authority established for a public purpose by or under a law of the Commonwealth.
community service order has the meaning given by subsection 70NFC(3).
contravened an order, in Division 13A of Part VII, has the meaning given by section 70NAC.
conveyance includes a vehicle, a vessel and an aircraft.
court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act, the Federal Circuit and Family Court of Australia Act 2021, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
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.
dwelling house includes a conveyance, or a room in accommodation, in which people ordinarily retire for the night.
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 safety risk screening information has the meaning given by section 10S.
family safety risk screening person has the meaning given by section 10R.
family safety risk screening process has the meaning given by section 10T.
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 and Family Court of Australia means:
(a) the Federal Circuit and Family Court of Australia (Division 1); or
(b) the Federal Circuit and Family Court of Australia (Division 2).
Federal Circuit and Family Court of Australia (Division 1) Rules means the Rules of Court made under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021.
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.
guardian, when used in Part VII in relation to a child, includes a person who has been granted (whether alone or jointly with another person or other persons) guardianship of the child under the law of the Commonwealth or of a State or Territory.
income tested pension, allowance or benefit means a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of this definition.
independent children’s lawyer for a child means a lawyer who represents the child’s interests in proceedings under an appointment made under a court order under subsection 68L(2).
information about the child’s location, in the context of a location order made or to be made by a court in relation to a child, means information about:
(a) where the child is; or
(b) where a person, who the court has reasonable cause to believe has the child, is.
interests, when used in Part VII in relation to a child, includes matters related to the care, welfare or development of the child.
lawyer means a person enrolled as a legal practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or Territory.
location order has the meaning given by subsection 67J(1).
made, in relation to a decree, being a judgment, means given.
made in favour, in relation to a parenting order (other than a child maintenance order), has the meaning given by subsection 64B(6).
maintenance agreement means an agreement in writing made, whether before or after the commencement of this Act and whether within or outside Australia, between the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes provision with respect to other matters, and includes such an agreement that varies an earlier maintenance agreement.
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
matrimonial cause means:
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for:
(i) a divorce order in relation to the marriage; or
(ii) a decree of nullity of marriage; or
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise; or
(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or
(caa) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage;
with respect to the maintenance of the first‑mentioned party; or
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
(cb) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage;
with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:
(iii) arising out of the marital relationship; or
(iv) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or
(v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
(d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or
(ea) proceedings between:
(i) the parties to a marriage; or
(ii) if one of the parties to a marriage has died—the other party to the marriage and the legal personal representative of the deceased party to the marriage;
being proceedings:
(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;
(iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or
(v) with respect to the enforcement under this Act or the applicable Rules of Court of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89; or
(eaa) without limiting any of the preceding paragraphs, proceedings with respect to a financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); or
(eab) third party proceedings (as defined in section 4A) to set aside a financial agreement; or
(eb) proceedings with respect to the enforcement of a decree made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c); or
(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
medical expenses includes medical, surgical, dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy expenses.
medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
member of the family has the meaning given by subsection (1AB).
Note: The definition in subsection (1AB) applies for the purposes of the provisions specified in that subsection.
non‑referring State de facto financial law means a law that:
(a) is a law of a State that is not a participating jurisdiction; and
(b) relates to financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships.
order under this Act affecting children, in relation to a court, means:
(a) a parenting order; or
(b) an injunction granted by the court:
(i) under section 68B; or
(ii) under section 114 in so far as the injunction is for the protection of a child; or
(c) an undertaking given to, and accepted by, the court:
(i) that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii) that relates to a bond referred to in paragraph (g); or
(d) a subpoena issued under the applicable Rules of Court:
(i) that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii) that relates to a bond referred to in paragraph (g);
being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or
(e) a registered parenting plan within the meaning of subsection 63C(6); or
(f) a community service order made under paragraph 70NFB(2)(a); or
(g) a bond entered into:
(i) under a parenting order; or
(ii) under paragraph 70NFB(2)(b); or
(iii) for the purposes of subsection 70NFG(6);
and includes an order, injunction, plan or bond that:
(h) is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and
(i) has been registered in the first‑mentioned court.
ordinarily resident includes habitually resident.
overseas child order means:
(a) an order made by a court of a prescribed overseas jurisdiction that:
(i) however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or
(ii) however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or
(iii) however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or
(iv) varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or
(b) an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).
overseas jurisdiction means a country, or part of a country, outside Australia.
overseas maintenance agreement means a maintenance agreement that has force and effect in a prescribed overseas jurisdiction by reason of the registration of the agreement, or the taking of any other action in relation to the agreement, under the law of that jurisdiction and includes an agreement with respect to the maintenance of an ex‑nuptial child that would be covered by the foregoing provisions of this definition if the child were a child of the marriage of the parties to the agreement.
parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
parentage testing order has the meaning given by subsection 69W(1).
parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition.
parental responsibility, in Part VII, has the meaning given by section 61B.
parenting order has the meaning given by subsection 64B(1).
parenting plan has the meaning given by subsection 63C(1).
participating jurisdiction has the meaning given by subsection 90RA(1).
Part VIIIAB financial agreement means an agreement:
(a) made under section 90UB, 90UC or 90UD; or
(b) covered by section 90UE.
Part VIIIAB proceedings means:
(a) proceedings under Part VIIIAB for orders with respect to:
(i) the maintenance of a party to a de facto relationship; or
(ii) the property of the parties to a de facto relationship or of either of them; or
(b) proceedings in relation to a Part VIIIAB financial agreement;
but does not include any proceedings specified in the regulations for the purposes of this definition.
Part VIIIAB termination agreement means an agreement made under paragraph 90UL(1)(b).
Part VIIIA proceedings means proceedings in relation to a financial agreement.
Part VIIIB proceedings means:
(a) proceedings in relation to a superannuation agreement (within the meaning of Part VIIIB); or
(b) proceedings in relation to a payment split or payment flag (within the meaning of that Part); or
(c) any other proceedings under that Part.
Part VIII proceedings means proceedings under Part VIII for orders with respect to spousal maintenance or the property of parties to a marriage, but does not include any proceedings specified in the regulations for the purposes of this definition.
party to a de facto relationship means a person who lives or has lived in a de facto relationship.
pending, in Subdivision E of Division 6 of Part VII, has a meaning affected by section 65X.
personal insolvency agreement has the same meaning as in the Bankruptcy Act 1966.
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member, however described, of the police force of a State or Territory.
post‑separation parenting program means a program:
(a) that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and
(b) that consists of lectures, discussions (including group discussions) or other activities; and
(c) that is provided by an organisation that meets the conditions in section 65LB.
prescribed adopting parent, in relation to a child, means:
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
prescribed child welfare authority, in relation to abuse of a child, means:
(a) if the child is the subject of proceedings under Part VII in a State or Territory—an officer of the State or Territory who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person; or
(b) if the child is not the subject of proceedings under Part VII—an officer of the State or Territory in which the child is located or is believed to be located who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person.
prescribed overseas jurisdiction means any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used.
prescribed proceedings means:
(a) divorce or validity of marriage proceedings; or
(b) proceedings in relation to concurrent, pending or completed divorce or validity of marriage proceedings.
primary order means an order under this Act affecting children and includes such order as varied.
principal officer, when used in Subdivision C of Division 8 of Part VII in relation to a Commonwealth instrumentality, means:
(a) if the regulations declare an office to be the principal office in respect of the instrumentality—the person holding, or performing the duties of, that office; or
(b) the person who constitutes the instrumentality or who is entitled to preside at any meeting of the instrumentality, or of its governing body, at which the person is present.
proceedings means a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
proceedings for principal relief means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of matrimonial cause in this subsection.
proceeds of crime authority has the meaning given by section 4C.
Note: Section 4C provides for different proceeds of crime authorities in relation to orders under the Proceeds of Crime Act 2002 and State or Territory proceeds of crime laws.
proceeds of crime order means:
(aa) a freezing order; or
(a) a restraining order; or
(b) a forfeiture order.
professional ethics includes:
(a) rules of professional conduct; and
(b) rules of professional etiquette; and
(c) a code of ethics; and
(d) standards of professional conduct.
property means:
(a) in relation to the parties to a marriage or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or
(b) in relation to the parties to a de facto relationship or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
property settlement or spousal maintenance proceedings means proceedings with respect to:
(a) the property of the parties to a marriage or either of them; or
(aa) the vested bankruptcy property in relation to a bankrupt party to a marriage; or
(b) the maintenance of a party to a marriage.
property settlement proceedings means:
(a) in relation to the parties to a marriage—proceedings with respect to:
(i) the property of the parties or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; or
(b) in relation to the parties to a de facto relationship—proceedings with respect to:
(i) the property of the parties or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship.
reasonable excuse for contravening an order includes the meanings given by section 70NAE.
recovery order has the meaning given by section 67Q.
referring State has the meaning given by subsections 90RA(2), (3), (4) and (5).
Registrar means:
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—a Senior Registrar or Registrar of the Court; or
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—a Senior Registrar or Registrar of the Court; or
(c) in relation to any other court—the principal legal officer of the court or any other appropriate officer of the court.
Registry Manager:
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1), means a Registry Manager of the Court; and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2), means a Registry Manager of the Court; and
(c) in relation to any other court, means the principal officer of the court or any other appropriate officer or staff member of the court.
related Federal Circuit and Family Court of Australia (Division 2) Rules means the Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 to the extent to which they relate to this Act.
relative of a child:
(a) in Part VII, means:
(i) a step‑parent of the child; or
(ii) a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the child; or
(iii) a grandparent of the child; or
(iv) an uncle or aunt of the child; or
(v) a nephew or niece of the child; or
(vi) a cousin of the child; and
(b) in subsection (1AB), has the meaning given by subsection (1AC).
relevant property or financial arbitration has the meaning given by subsection 10L(2).
repealed Act means the Matrimonial Causes Act 1959.
restraining order means:
(a) a restraining order under the Proceeds of Crime Act 2002; or
(b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a restraining order for the purposes of this paragraph.
section 13E arbitration has the meaning given by subsection 10L(2).
section 69GA proceedings has the meaning given by subsection 69GA(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.
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.
(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 and the applicable Rules of Court, 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 or the applicable Rules of Court 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 or the applicable Rules of Court 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 a provision of the Federal Circuit and Family Court of Australia Act 2021 referring to this Act is taken to be jurisdiction under this Act; and
(b) jurisdiction under paragraphs 25(1)(a) and (b) of the Federal Circuit and Family Court of Australia Act 2021 is taken to be jurisdiction under this Act; and
(c) jurisdiction under section 101 of the Child Support (Assessment) Act 1989 and under section 106 of the Child Support (Registration and Collection) Act 1988 is taken to be jurisdiction under this Act; and
(d) jurisdiction under the applicable Rules of Court is taken to be jurisdiction under this Act; and
(e) proceedings transferred under section 51 or 149 of the Federal Circuit and Family Court of Australia Act 2021 referring to this Act are taken to be proceedings under this Act; and
(f) proceedings under the applicable Rules of Court are taken to be proceedings under this Act; and
(g) an order (however described) made by a court under the applicable Rules of Court 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.
(6) A reference in this Act to a person, being a party to a marriage or a party to a de facto relationship, who is bankrupt includes a reference to a person:
(a) who has been discharged from bankruptcy; and
(b) whose property remains vested in the bankruptcy trustee under the Bankruptcy Act 1966.
Note: This Act might refer to “bankrupt” or a “bankrupt party”.
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, proceedings by way of a matrimonial cause shall not be instituted except under this Act.
(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.
Part IA—Protection of names
9A Use of protected names and symbols
(1) A person must not, without the Minister’s written consent:
(a) use in relation to a business, trade, profession or occupation; or
(b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or
(c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or
(d) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of the supply or use of goods or services:
either:
(e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or
(f) a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it.
Penalty: 30 penalty units.
(2) Subsection (1), so far as it applies in relation to a particular protected name or protected symbol, does not affect rights conferred by law on a person in relation to:
(a) a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995; or
(b) a design registered under the Designs Act 2003;
that was so registered, or was registered under the Designs Act 1906, at the protection time in relation to the name or symbol.
(3) This section, so far as it applies in relation to a particular protected name or protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person:
(a) was using the relevant name or symbol in good faith in that manner; or
(b) would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first‑mentioned person.
(4) In this section:
protected name means a name prescribed for the purposes of this definition.
protected symbol means a symbol whose design is set out in the regulations.
protection time means:
(a) in relation to a protected name—the time immediately before the commencement of the regulation prescribing the name; or
(b) in relation to a protected symbol—the time immediately before the commencement of the regulation setting out the design of the symbol.
Part II—Non‑court based family services
Division 1—Accreditation of family counsellors, family dispute resolution practitioners and other family service providers
10A Accreditation Rules
(1) The regulations may prescribe Accreditation Rules. These are rules relating to:
(a) the accreditation of persons as family counsellors; and
(b) the accreditation of persons as family dispute resolution practitioners; and
(c) the accreditation of persons to perform other roles prescribed by regulations made for the purposes of this paragraph.
(2) Examples of matters that the Accreditation Rules may deal with are:
(a) the standards that are to be met by persons who seek to be accredited; and
(b) who is responsible for determining whether a person meets the Accreditation Rules; and
(c) how accreditation is to be recognised (for example, by establishment of a register or other method); and
(d) the standards and other obligations that accredited persons must continue to meet to remain accredited; and
(e) who is responsible for monitoring compliance with ongoing requirements in the Rules; and
(f) the consequences of accredited persons failing to comply with the provisions of this Act and the Rules; and
(g) the obligations of accredited persons in relation to the monitoring of their compliance; and
(h) how and by whom an accredited person may have his or her accreditation (or recognition of that accreditation) suspended or cancelled; and
(i) review of decisions to refuse, suspend or cancel accreditation (or recognition of accreditation); and
(j) the process for handling complaints involving accredited persons; and
(k) who may deliver recognised training to accredited persons, and
(l) dealing with individuals or other persons who make false or misleading representations about a person’s status as an accredited person.
Division 2—Family counselling
10B Definition of family counselling
Family counselling is a process in which a family counsellor helps:
(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children; or
(c) one or more persons who may apply for a parenting order under section 65C to deal with 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 281 of the Federal Circuit and Family Court of Australia Act 2021 as a family counsellor; or
(da) a person who is engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 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 3—Family dispute resolution
10F Definition of family dispute resolution
Family dispute resolution is a process (other than a judicial process):
(a) in which a family dispute resolution practitioner:
(i) helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; or
(ii) helps persons who may apply for a parenting order under section 65C to resolve some or all of their disputes with each other relating to the care of children; 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 281 of the Federal Circuit and Family Court of Australia Act 2021 as a family dispute resolution practitioner; or
(da) a person who is engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 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 4—Arbitration
10L Definition of arbitration
(1) Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.
(2) Arbitration may be either:
(a) section 13E arbitration—which is arbitration of Part VIII proceedings, or Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement), carried out as a result of an order made under section 13E; or
(b) relevant property or financial arbitration—which is arbitration (other than section 13E arbitration) of:
(i) Part VIII proceedings, Part VIIIA proceedings, Part VIIIAB proceedings, Part VIIIB proceedings, proceedings for an order under Part VIIIC 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 Federal Circuit and Family Court of Australia (Division 1) has in performing the functions of a Judge.
Note: Communications with arbitrators are not confidential, and may be admissible in court.
Part IIA—Family safety risk screening
Division 1—Preliminary
10Q Simplified outline of this Part
This Part prevents the disclosure, and admission into evidence, of information that is in connection with a family safety risk screening process carried out by the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) in relation to a party to proceedings under this Act.
The process is carried out for the purpose of identifying any persons at risk of family violence in order to determine the urgency and priority of the proceedings.
10R Definition of family safety risk screening person
A family safety risk screening person is:
(a) an officer or staff member of:
(i) the Federal Circuit and Family Court of Australia (Division 1); or
(ii) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a family counsellor; or
(c) a contractor engaged on behalf of a court referred to in paragraph (a); or
(d) an officer, employee or subcontractor of a contractor referred to in paragraph (c).
10S Definition of family safety risk screening information
(1) Family safety risk screening information is:
(a) information obtained (whether orally or in writing) or generated, or a document obtained or created, by a family safety risk screening person in connection with a family safety risk screening process; or
(b) information about whether or not a party to proceedings under this Act participated in a family safety risk screening process.
(2) Without limiting subsection (1), family safety risk screening information includes reports prepared, recommendations made or referrals created by a family safety risk screening person as a result of the information referred to in subsection (1).
10T Definition of family safety risk screening process
(1) A family safety risk screening process is a process carried out, or attempted to be carried out, by a family safety risk screening person:
(a) in connection with proceedings under this Act; and
(b) in relation to a party to those proceedings;
for the purpose, or for purposes that include the purpose, of identifying one or more of the following:
(c) any persons who are at risk of being subjected to family violence;
(d) any children who are at risk of being subjected to, or exposed to, abuse, neglect or family violence;
(e) any risks to the safety of persons;
in order to determine the urgency and priority of the proceedings and assist in case management.
Process must involve use of risk screening tool
(2) The process carried out, or attempted to be carried out, must involve the use of a risk screening tool determined under subsection (3).
(3) The Chief Executive Officer may, by notifiable instrument, determine a risk screening tool for the purposes of subsection (2).
Process may also involve risk assessment
(4) Without limiting subsection (1), the process referred to in that subsection may also involve a risk assessment conducted by a family counsellor in connection with this Part.
Division 2—Protection of family safety risk screening information
10U Confidentiality of family safety risk screening information
(1) A family safety risk screening person must not disclose family safety risk screening information, unless the disclosure is required or authorised by this section.
(2) A family safety risk screening person must disclose family safety risk screening information if that person 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 safety risk screening person may disclose family safety risk screening information to a party to the proceedings concerned if that information:
(a) was provided by, or generated or created from information provided by, that party; and
(b) relates to that party.
(4) A family safety risk screening person may disclose family safety risk screening information if consent to the disclosure is given by:
(a) if:
(i) the information was provided by, or generated or created from information provided by, a party to the proceedings concerned; and
(ii) the information relates to that party; and
(iii) that party is 18 or over;
that party; or
(b) if:
(i) the information was provided by, or generated or created from information provided by, a party to the proceedings concerned; and
(ii) the information relates to that party; and
(iii) that party is a child under 18;
a court.
(5) A family safety risk screening person may disclose family safety risk screening information to another family safety risk screening person for the purposes of that other person’s responsibilities or duties in connection with this Part.
(6) A family safety risk screening person may disclose family safety risk screening information if that person 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, or a threat of damage to property, of a person; or
(f) if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.
(7) A family safety risk screening person may disclose family safety risk screening information 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.
(8) Evidence that would be inadmissible because of section 10V is not admissible merely because this section requires or authorises its disclosure.
Note: This means that a family safety risk screening person’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5), (6) or (7) requires or authorises the person to disclose it in other circumstances.
10V Admissibility of family safety risk screening information etc.
Family safety risk screening information
(1) Family safety risk screening information is not admissible:
(a) in any court (whether or not exercising federal jurisdiction); or
(b) 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 family safety risk screening information that indicates that a child under 18 has been abused or is at risk of abuse, unless, in the opinion of the court, there is sufficient evidence of the information available to the court from other sources.
Evidence of things said or admissions made in company of professionals
(3) Evidence of anything said, or any admission made, by or in the company of a person (the professional) to whom a family safety risk screening person refers a party to the proceedings concerned (the referred party) for medical or other professional services, while that professional is providing such services to the referred party, is not admissible:
(a) in any court (whether or not exercising federal jurisdiction); or
(b) 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).
(4) Subsection (3) does not apply to a thing said or an admission made by the referred party (including a child under 18) indicating that a child under 18 has been abused or is at risk of abuse, unless, in the opinion of the court, there is sufficient evidence of the thing said, or the admission made, available to the court from other sources.
Professional to be informed of effect of section
(5) A family safety risk screening person who refers a party to a professional (within the meaning of subsection (3)) must inform the professional of the effect of this section.
10W Immunity of family safety risk screening persons
A family safety risk screening person has, in performing that person’s functions as a family safety risk screening person, the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 1) has in performing the functions of a Judge.
Part III—Family consultants
Division 1—About family consultants
11A Functions of family consultants
The functions of family consultants are to provide services in relation to proceedings under this Act, including:
(a) assisting and advising people involved in the proceedings; and
(b) assisting and advising courts, and giving evidence, in relation to the proceedings; and
(c) helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and
(d) reporting to the court under sections 55A and 62G; and
(e) advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.
Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.
11B Definition of family consultant
A family consultant is a person who is:
(a) appointed as a family consultant under section 18ZH of the Federal Court of Australia Act 1976; 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 Part 1 of Chapter 5 of the Federal Circuit and Family Court of Australia Act 2021.
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 281(3) of the Federal Circuit and Family Court of Australia Act 2021 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) the thing was said or the admission was made by a person (including a child under 18) indicating that a child under 18 has been abused or is at risk of abuse; and
(b) for a thing or admission that was obtained improperly or in contravention, or in consequence of an impropriety or of a contravention, of an Australian law—the evidence is admissible under section 138 of the Evidence Act 1995;
unless, in the opinion of the court, sufficient evidence of the thing said or the admission made is available to the court from other sources.
Note: A thing that is said, or an admission that is made, by a child under 18 may relate to the child him or herself, or another child under 18.
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 Federal Circuit and Family Court of Australia (Division 1) has in performing the functions of a Judge.
Division 2—Courts’ use of family consultants
11E Courts to consider seeking advice from family consultants
(1) If, under this Act, a court has the power to:
(a) order a person to attend family counselling or family dispute resolution; or
(b) order a person to participate in a course, program or other service (other than arbitration); or
(c) order a person to attend appointments with a family consultant; or
(d) advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;
the court:
(e) may, before exercising the power, seek the advice of:
(i) if the court is the Federal Circuit and Family 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 IIIA—Obligations to inform people about non‑court based family services and about court’s processes and services
Division 1—Introduction
12A Objects of this Part
The objects of this Part are:
(a) to ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation, in situations where a reconciliation between the couple seems a reasonable possibility; and
(b) to ensure that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust to:
(i) separation or divorce; and
(ii) orders made under this Act; and
(c) to ensure that people affected, or likely to be affected, by separation or divorce are informed about ways of resolving disputes other than by applying for orders under this Act.
Division 2—Kind of information to be provided
12B Prescribed information about non‑court based family services and court’s processes and services
(1) The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non‑court based family services and court’s processes and services.
(2) Without limitation, information prescribed under this section must include information about:
(a) the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and
(b) the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and
(c) the steps involved in the proposed proceedings; and
(d) the role of family consultants; and
(e) the arbitration facilities available to arbitrate disputes in relation to separation and divorce.
12C Prescribed information about reconciliation
The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage.
12D Prescribed information about Part VII proceedings
(1) The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII.
(2) Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.
Division 3—Who must provide information, and when
12E Obligations on legal practitioners
(1) A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non‑court based family services and court’s processes and services).
(2) A legal practitioner who is consulted by, or who is representing, a married person who is a party to:
(a) proceedings for a divorce order in relation to the marriage; or
(b) financial or Part VII proceedings in relation to the marriage;
must give the person documents containing the information prescribed under section 12C (about reconciliation).
(3) A legal practitioner representing a party in proceedings under Part VII must give the party documents containing the information prescribed under section 12D (about Part VII proceedings).
Note: For other obligations of legal practitioners in relation to Part VII matters, see sections 60D and 63DA.
(4) A legal practitioner does not have to comply with subsection (1), (2) or (3) if the practitioner has reasonable grounds to believe that the person has already been given documents containing the prescribed information mentioned in that subsection.
(5) A legal practitioner does not have to comply with subsection (2) if the practitioner considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.
12F Obligations on principal executive officers of courts
Obligation to give prescribed information
(1) The principal executive officer of a court that has jurisdiction under this Act must ensure that any person who is considering instituting proceedings under this Act is, on the first occasion the person deals with a registry of the court, given documents containing the information prescribed under:
(a) section 12B (about non‑court based family services and court’s processes and services); and
(b) section 12C (about reconciliation); and
(c) section 12D (about Part VII proceedings).
Obligation to respond to requests for information
(2) The principal executive officer of a court that has jurisdiction under this Act must ensure that, if a person involved in proceedings under this Act requests an officer or staff member of the court for information about family counselling services or family dispute resolution services, the person is given documents containing information about those services.
Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.
12G Obligations on family counsellors, family dispute resolution practitioners and arbitrators
(1) A family counsellor, family dispute resolution practitioner or arbitrator who deals with a married person considering instituting:
(a) proceedings for a divorce order in relation to the marriage; or
(b) financial or Part VII proceedings in relation to the marriage;
must give the married person (and in appropriate cases, that person’s spouse) documents containing the information prescribed under 12C (about reconciliation).
Note: For other obligations of family counsellors and family dispute resolution practitioners in relation to Part VII matters, see sections 60D and 63DA. Those sections do not apply to arbitrators.
(2) A family counsellor, family dispute resolution practitioner or arbitrator does not have to comply with subsection (1), if he or she:
(a) has reasonable grounds to believe that the person has already been given documents containing the prescribed information; or
(b) considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.
Part IIIB—Court’s powers in relation to court and non‑court based family services
Division 1—Introduction
13A Objects of this Part
(1) The objects of this Part are:
(a) to facilitate access to family counselling:
(i) to help married couples considering separation or divorce to reconcile; and
(ii) to help people adjust to separation or divorce; and
(iii) to help people adjust to court orders under this Act; and
(b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and
(c) to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and
(d) to give the court the power to require parties to proceedings under this Act to make use of court or non‑court based family services appropriate to the needs of the parties.
(2) The object mentioned in paragraph (1)(b) also lies behind the general requirement in section 60I for family dispute resolution services to be used before applications for orders under Part VII are made.
Division 2—Help with reconciliation
13B Court to accommodate possible reconciliations
(1) A court exercising jurisdiction in:
(a) proceedings for a divorce order; or
(b) financial or part VII proceedings instituted by a party to a subsisting marriage;
must consider, from time to time, the possibility of a reconciliation between the parties to the marriage.
(2) If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation.
(3) If the court adjourns the proceedings under subsection (2), the court must advise the parties to attend family counselling, or use the services of another appropriate person or organisation.
Note: Before advising the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).
(4) If, after an adjournment under subsection (2), either of the parties requests that the proceedings resume, the court must resume the proceedings as soon as practicable.
Division 3—Referrals to family counselling, family dispute resolution and other family services
13C Court may refer parties to family counselling, family dispute resolution and other family services
(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).
Note 2: The court can also order parties to attend, or arrange for a child to attend, appointments with a family consultant (see section 11F).
(2) The court may suggest a particular purpose for the attendance or participation.
(3) The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
Note: For example, the participation of children, grandparents or other relatives may be encouraged.
(4) The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.
(5) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child’s interests under an order made under section 68L.
13D Consequences of failure to comply with order under section 13C
(1) If a party fails to comply with an order of a court under section 13C, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court.
(2) On receiving the report, the court may make any further orders it considers appropriate.
(3) The court may make orders under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child’s interests under an order made under section 68L.
Division 4—Court’s role in relation to arbitration of disputes
13E Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration
(1) With the consent of all of the parties to the proceedings, a court exercising jurisdiction in:
(a) Part VIII proceedings; or
(b) Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement);
may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration.
(2) If the court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make any additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.
13F Court may make orders to facilitate arbitration of certain disputes
A court that has jurisdiction under this Act may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.
13G Federal Circuit and Family Court of Australia (Division 2) 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) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a single judge of the Family Court of a State.
(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 and Family Court of Australia (Division 2) 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 Federal Circuit and Family Court of Australia (Division 2) 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) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a single judge of the Family Court of a State.
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 and Family Court of Australia (Division 2) may:
(a) determine all questions of law arising in relation to the arbitration; and
(b) make such decrees as the judge or Federal Circuit and Family Court of Australia (Division 2) thinks appropriate, including a decree affirming, reversing or varying the award.
13K Federal Circuit and Family Court of Australia 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 Federal Circuit and Family Court of Australia (Division 1); or
(b) the Federal Circuit and Family Court of Australia (Division 2); 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 V—Jurisdiction of courts
Division 1—Jurisdiction in matrimonial causes
39 Jurisdiction in matrimonial causes
(1) Subject to this Part, a matrimonial cause may be instituted under this Act:
(a) in the Federal Circuit and Family Court of Australia (Division 2); or
(b) in the Supreme Court of a State or a Territory.
(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 Federal Circuit and Family Court of Australia (Division 2) 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
(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) provisions of the applicable Rules of Court dealing with the attachment of money payable by the Commonwealth, a State, a Territory or the Government of a Territory, or an authority of the Commonwealth, of a State or of a Territory; 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.
(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
(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) provisions of the applicable Rules of Court dealing with the attachment of money payable by the Commonwealth, a State, a Territory or the Government of a Territory, or an authority of the Commonwealth, of a State or of a Territory; 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.
(7) The Governor‑General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.
(7AAA) Without limiting the generality of subsection (7), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:
(a) proceedings of specified classes;
(b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;
(c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.
(7AA) A court of summary jurisdiction in a State or Territory shall not hear or determine proceedings under this Act instituted in or transferred to that court otherwise than in accordance with any Proclamation in force under subsection (7).
(7A) The Governor‑General may, by Proclamation, declare that a Proclamation made under subsection (7) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (7)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.
(8) Jurisdiction with respect to a matter arising under this Act in respect of which a matrimonial cause is instituted under this Act is not conferred on a court of a Territory unless at least one of the parties to the proceedings is, at the date of the institution of the proceedings or the date of the transfer of the proceedings to the court of the Territory, ordinarily resident in the Territory.
(9) The jurisdiction conferred on or invested in a court by this section includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with this Act.
Division 2—Jurisdiction in de facto financial causes
39A Instituting proceedings
Instituting proceedings under this Act
(1) A de facto financial cause may be instituted under this Act in:
(a) the Federal Circuit and Family Court of Australia (Division 2); 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 Federal Circuit and Family Court of Australia (Division 2); 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 Federal Circuit and Family Court of Australia (Division 2) is subject to section 40.
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 or the Federal Circuit and Family Court of Australia Act 2021 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 2A—Jurisdiction in matters arising under Part VIIIC
39H Instituting proceedings
Instituting proceedings under this Act
(1) Proceedings in relation to matters arising under Part VIIIC may be instituted under this Act in:
(a) the Family Court of Western Australia; or
(b) the Magistrates Court of Western Australia sitting at a place outside the metropolitan region (within the meaning of the Family Court Act 1997 (WA)).
(2) Subsection (1) has effect subject to this Part.
Proceedings only to be instituted under this Act
(3) Proceedings in relation to matters arising under Part VIIIC that may be instituted under this Act must not be instituted otherwise than under this Act.
39J Jurisdiction in matters arising under Part VIIIC
(1) The following are each invested with federal jurisdiction with respect to matters arising under Part VIIIC:
(a) the Family Court of Western Australia;
(b) the Magistrates Court of Western Australia constituted by a magistrate who is not a Family Law Magistrate of Western Australia, sitting at a place outside the metropolitan region (within the meaning of the Family Court Act 1997 (WA));
(c) the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, sitting at any place in Western Australia.
(2) This section has effect subject to this Part.
Division 3—Other provisions
40 Limitations on jurisdiction of Federal Circuit and Family Court of Australia (Division 2) 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 Legislation Act 2003), the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under this Act or the Federal Circuit and Family Court of Australia Act 2021 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 Federal Circuit and Family Court of Australia (Division 2), may apply to that Court for an order transferring the proceedings to the Court, and the Court may order accordingly.
(7) The Federal Circuit and Family Court of Australia (Division 1) Rules and the related Federal Circuit and Family Court of Australia (Division 2) Rules 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.
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, 47A and 47B of this Act and subsection 26(1) of the Federal Circuit and Family Court of Australia Act 2021 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 applicable 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) A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of 2 people 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.
Proceedings in relation to marriages
(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.
Limitation on applications for divorce orders within 2 years of 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 Federal Circuit and Family Court of Australia (Division 2) 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 Federal Circuit and Family Court of Australia (Division 2) 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.
Limitation on applications relating to certain maintenance and property proceedings
(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.
Proceedings in relation to de facto relationships
(5) Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a) the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
(ii) 12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
(5A) However, if proceedings are instituted by an application made with the consent of both of the parties to the de facto relationship, 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.
(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.
Proceedings under Part VIIIC
(7) Subject to subsection (9), a party to a de facto relationship may apply for an order under Part VIIIC only if:
(a) the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
(ii) 12 months after a Western Australian financial agreement (within the meaning of Part VIIIC) between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
(8) However, if proceedings are instituted by an application made with the consent of both of the parties to the de facto relationship, 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.
(9) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that hardship would be caused to the party or a child if leave were not granted.
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 and it appears to that court that other proceedings that have been so instituted 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 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 Federal Circuit and Family Court of Australia (Division 1) and the other court is the Federal Circuit and Family Court of Australia (Division 2); or
(b) the first‑mentioned court is the Federal Circuit and Family Court of Australia (Division 2) and the other court is the Federal Circuit and Family Court of Australia (Division 1).
Note 1: For transfers from the Federal Circuit and Family Court of Australia (Division 1) to the Federal Circuit and Family Court of Australia (Division 2), see section 52 of the Federal Circuit and Family Court of Australia Act 2021.
Note 2: For transfers from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1), see sections 51 and 149 of the Federal Circuit and Family Court of Australia Act 2021.
(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.
45A Summary decrees
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse of process merely because an application relating to the proceedings or the part is made and later withdrawn.
Costs
(6) If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7) The court may take action under this section on its own initiative or on application by a party to the proceedings.
This section does not limit other powers
(8) This section does not limit any powers that the court has apart from this section.
Note: Part XIB also gives courts powers relating to vexatious proceedings.
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 a State or Territory, in relation to property of a total value exceeding the amount referred to in section 46A, 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 Federal Circuit and Family Court of Australia (Division 2); or
(ii) a Family Court of a State; or
(iii) the Supreme Court of a State or Territory; and
(b) unless the parties consent to the court hearing and determining the proceedings—the court must transfer the proceedings to:
(i) the Federal Circuit and Family Court of Australia (Division 2); or
(ii) a Family Court of a State; or
(iii) the Supreme Court of a State or Territory.
(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 Federal Circuit and Family Court of Australia (Division 2); or
(b) a Family Court of a State; or
(c) the Supreme Court of a State or Territory.
(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 Federal Circuit and Family Court of Australia (Division 2); or
(d) a Family Court of a State; or
(e) the Supreme Court of a State or Territory.
(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 are pending in a court of summary jurisdiction, each of the following Courts:
(a) the Federal Circuit and Family Court of Australia (Division 2);
(b) a Family Court of a State;
(c) the Supreme Court of a State or Territory;
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.
46A Prescribing value of property for the purposes of section 46
(1) For the purposes of subsection 46(1), the amount is:
(a) $20,000; or
(b) if a higher amount is prescribed by regulations for the State or Territory in which the court of summary jurisdiction referred to in that subsection is located—that higher amount.
(2) Without limiting subsection (1), a higher amount may be prescribed by referring to the jurisdiction conferred on a court of summary jurisdiction under a law of the State or Territory, as in force from time to time.
Consultation with State and Territories
(3) Before the Governor‑General makes regulations for the purposes of subsection (1) in relation to a particular State or Territory, the Minister must be satisfied that the Minister with responsibility for courts in that State or Territory has been consulted.
(4) Subsection (3) does not limit section 17 of the Legislation Act 2003 (rule‑makers should consult before making legislative instrument).
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.
Division 4—Appeals
47A Appeals from courts of summary jurisdiction
(1) Subject to section 47B, an appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under:
(a) this Act; or
(b) the Child Support (Assessment) Act 1989; or
(c) the Child Support (Registration and Collection) Act 1988;
to:
(d) the Federal Circuit and Family Court of Australia (Division 1); or
(e) the Supreme Court of that State or Territory.
(2) Subsection (1) does not apply to:
(a) a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia; or
(b) a decree of the Magistrates Court of Western Australia constituted by a magistrate who is not a Family Law Magistrate of Western Australia made in proceedings in relation to matters arising under Part VIIIC.
(3) An appeal under subsection (1) must be instituted within:
(a) in the case of an appeal to the Federal Circuit and Family Court of Australia (Division 1):
(i) the time prescribed by the Federal Circuit and Family Court (Division 1) Rules; or
(ii) such further time as is allowed in accordance with those Rules; and
(b) in any other case:
(i) the time prescribed by the standard Rules of Court; or
(ii) such further time as is allowed in accordance with those Rules.
(4) The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory, with respect to matters arising under this Act, in respect of which appeals are instituted under this section.
Note: For jurisdiction in relation to child support legislation, see section 101 of the Child Support (Assessment) Act 1989 and section 106 of the Child Support (Registration and Collection) Act 1988.
(5) The Governor‑General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes.
(6) The court hearing an appeal under this section:
(a) must proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and
(b) must have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which may be given:
(i) by affidavit; or
(ii) by oral examination before the court; or
(iii) as provided for in Division 2 of Part XI; and
(c) may make such decrees as the court considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal.
Decrees made in section 69GA proceedings treated like decrees of courts of summary jurisdiction
(7) This section applies in relation to a decree of a court made in section 69GA proceedings in the same way as this section would apply in relation to a decree of a court of summary jurisdiction.
47B Leave to appeal needed for child support matters
(1) Leave of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under:
(a) the Child Support (Assessment) Act 1989; or
(b) the Child Support (Registration and Collection) Act 1988.
(2) Leave of the Supreme Court of a State or Territory is required to appeal to the Court from a decree of a court of summary jurisdiction of that State or Territory exercising jurisdiction under:
(a) the Child Support (Assessment) Act 1989; or
(b) the Child Support (Registration and Collection) Act 1988.
(3) An application for leave to appeal must be made within:
(a) in the case of leave of the Federal Circuit and Family Court of Australia (Division 1):
(i) the time prescribed by the Federal Circuit and Family Court (Division 1) Rules; or
(ii) such further time as is allowed in accordance with those Rules; and
(b) in any other case:
(i) the time prescribed by the standard Rules of Court; or
(ii) such further time as is allowed in accordance with those Rules.
(4) The applicable Rules of Court may make provision for enabling applications for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.
47BA Appeals relating to matters arising under Part VIIIC
(1) An appeal lies to the Family Court of Western Australia from:
(a) an interlocutory order of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia; or
(b) a decree of the Magistrates Court of Western Australia constituted by a magistrate who is not a Family Law Magistrate of Western Australia;
exercising original jurisdiction invested by Division 2A of Part V.
Note: Division 2A of Part V invests jurisdiction with respect to matters arising under Part VIIIC (Superannuation interests relating to Western Australian de facto relationships).
(2) An appeal lies to the Court of Appeal established under the Supreme Court Act 1935 (WA) from:
(a) a decree of the Family Court of Western Australia exercising original jurisdiction invested by Division 2A of Part V of this Act or appellate jurisdiction under this Act; or
(b) a decree (other than an interlocutory order) of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction invested by Division 2A of Part V of this Act.
Note: Division 2A of Part V invests jurisdiction with respect to matters arising under Part VIIIC (Superannuation interests relating to Western Australian de facto relationships).
(3) The Court of Appeal established under the Supreme Court Act 1935 (WA) and the Family Court of Western Australia are each invested with federal jurisdiction with respect to matters arising under Part VIIIC of this Act in respect of which appeals are instituted under this section.
47C Appeal may be dismissed if no reasonable prospect of success
(1) If:
(a) an appeal has been instituted in a court under this Division; and
(b) it appears to the court that the appeal has no reasonable prospect of success;
the court may, at any time, order that the proceedings on the appeal be dismissed.
(2) This section does not limit any powers that the court has apart from this section.
47D Appeals to High Court may not be brought
(1) An appeal must not be brought directly to the High Court from a decree of the following courts exercising jurisdiction under this Act:
(a) a court of summary jurisdiction of a State or Territory;
(b) a Family Court of a State;
(c) a Supreme Court of a State or Territory constituted by a single Judge.
Note: In relation to the Federal Circuit and Family Court of Australia, see sections 55 and 155 of the Federal Circuit and Family Court of Australia Act 2021.
(2) If, apart from this subsection, subsection (1) is to any extent inconsistent with section 73 of the Constitution, this Act has effect as if the words “, except by special leave of the High Court” were inserted after the words “this Act” in subsection (1).
47E Regulations to be sole source of certain appellate jurisdiction
Despite the provisions of this Division, a court has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C only as provided by those regulations.
Part VI—Divorce and nullity of marriage
48 Divorce
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
49 Meaning of separation
(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
50 Effect of resumption of cohabitation
(1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.
(2) For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.
51 Nullity of marriage
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
52 Court not to make divorce order where application for decree of nullity before it
Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage.
53 Circumstances occurring before commencement of Act or outside Australia
A decree may be made, or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.
55 When divorce order takes effect
(1) Subject to this section, a divorce order made under this Act takes effect by force of this section:
(a) at the expiration of a period of 1 month from the making of the order; or
(b) from the making of an order under section 55A;
whichever is the later.
(2) If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:
(a) make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or
(b) make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.
(3) If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:
(a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or
(b) on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted;
whichever is the later.
(4) A divorce order does not take effect by force of this section if either of the parties to the marriage has died.
(5) In this section:
appeal, in relation to a divorce order, means:
(a) an appeal, or an application for leave to appeal, against:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(b) an intervention, or an application for a re‑hearing, relating to:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(c) an application under section 57 or 58 for rescission of the divorce order, or an appeal or application for leave to appeal arising out of such an application; or
(d) a review by the Federal Circuit and Family Court of Australia (Division 1) of the making, by the Chief Executive Officer, or a Senior Registrar or 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 and Family Court of Australia (Division 2) of the making, by the Chief Executive Officer, or a Senior Registrar or 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 party to the marriage, 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 both parties to the marriage 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 parties to the marriage 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 that certifies that the divorce order has taken effect and is signed by:
(a) if the court is the Federal Circuit and Family Court of Australia (Division 1)—the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or
(b) if the court is the Federal Circuit and Family Court of Australia (Division 2)—the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or
(c) in relation to any other court—the Registrar of that court.
(3) A certificate given under subsection (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, prima facie 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 Remarriage
If a divorce order under this Act in relation to a marriage has taken effect, a party to the marriage may marry again.
60 No appeal after divorce order takes effect
An appeal does not lie from a divorce order after the order takes effect.
Part VII—Children
Division 1—Introductory
Subdivision A—What this Division does
60A What this Division does
This Division contains:
(a) a statement of the object of this Part and the principles underlying it, and an outline of this Part (Subdivision B); and
(aa) provisions dealing with the best interests of the child in court proceedings (Subdivision BA); and
(ab) provisions dealing with an adviser’s obligations in relation to the best interests of the child (Subdivision BB); and
(b) provisions relevant to the interpretation and application of this Part (Subdivision C); and
(c) provisions relevant to how this Act applies to certain children (Subdivision D); and
(d) provisions about the use of family dispute resolution before applying for an order under this Part (Subdivision E).
Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12.
Subdivision B—Object, principles and outline
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
60C Outline of Part
An outline of this Part is set out below.
| OUTLINE OF PART |
| Item | Divisions and coverage |
| 1 | Division 1—Introductory · object of Part and principles underlying it, and outline of Part · best interests of the child: court proceedings · best interests of the child: adviser’s obligations · interpretation and application of this Part · how this Act applies to certain children · family dispute resolution Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12. |
| 2 | 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 BA—Best 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).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
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 BB—Best 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 C—Interpretation 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 the purported marriage were a marriage.
Subdivision D—Interpretation—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) For the purposes of this Act, a child is (subject to subsections (2), (3) and (4)) a child of a marriage if:
(a) the child is the child of both parties to the marriage, whether born before or after the marriage; or
(b) the child is adopted after the marriage by both parties to the marriage, or by either of them with the consent of the other.
(2) A reference in this Act to a child of a marriage includes a reference to a child of:
(a) a marriage that has been terminated by divorce or annulled (in Australia or elsewhere); or
(b) a marriage that has been terminated by the death of one party to the marriage.
(3) A child of a marriage who is adopted by a person who, before the adoption, is not a prescribed adopting parent ceases to be a child of that marriage for the purposes of this Act.
(4) The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:
(a) if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of the marriage for the purposes of this Act;
(b) in any other case—the child continues to be a child of the marriage for the purposes of this Act.
(5) In this section:
this Act includes the applicable Rules of Court.
60G Leave may be granted for adoption proceedings by prescribed adopting parent
(1) Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), 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 the applicable Rules of Court.
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 the applicable Rules of Court.
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 the applicable Rules of Court.
Subdivision E—Family 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.
Applications for a Part VII order
(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 subsection 60I(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:
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