FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005

This is a Bill, not an Act. For current law, see the Acts databases.

FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005

2004-2005

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Family Law Amendment (Shared

Parental Responsibility) Bill 2005

No. , 2005

(Attorney-General)

A Bill for an Act to amend the Family Law Act

1975, and for related purposes

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 ii

Contents

1 Short

title ...........................................................................................1

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

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

Schedule 1--Shared parental responsibility

Part 1--Amendments

Family Law Act 1975

Part 2--Application of amendments

Schedule 2--Compliance regime

Part 1--Amendments

Family Law Act 1975

Part 2--Application of amendments and savings

Schedule 3--Amendments relating to the conduct of

child-related proceedings

Part 1--Amendments

Evidence Act 1995

Family Law Act 1975

Part 2--Application of amendments

Schedule 4--Changes to dispute resolution

Part 1--Changes to approval of organisations

Family Law Act 1975

Part 2--Protection of names

Family Law Act 1975

Part 3--Changes to dispute resolution

Family Law Act 1975

Federal Magistrates Act 1999

110

Marriage Act 1961

116

Part 4--Transitional matters relating to family counselling and

family dispute resolution

117

iii Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Part 5--Application and transitional provisions relating to

other changes to dispute resolution

123

Schedule 5--Representation of child's interests by independent

children's lawyer

127

Part 1--Amendments

127

Family Law Act 1975

127

Part 2--Application of amendments and saving of

appointments

133

Schedule 6--Family violence

134

Part 1--Amendments

134

Family Law Act 1975

134

Part 2--Application of amendments and savings

141

Schedule 7--Jurisdiction of courts

142

Part 1--Amendment

142

Family Law Act 1975

142

Part 2--Application of amendment

143

Schedule 8--Removal of references to residence and contact

144

Part 1--Amendments

144

Australian Citizenship Act 1948

144

Australian Citizenship Act 2005

144

Australian Passports Act 2005

144

Child Support (Assessment) Act 1989

145

Family Law Act 1975

149

Migration Act 1958

163

Part 2--Savings

164

Schedule 9--Relocation of defined terms used in Part VII

165

Part 1--Amendments

165

A New Tax System (Family Assistance) Act 1999

165

Australian Passports Act 2005

165

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 iv

Child Support (Assessment) Act 1989

165

Child Support (Registration and Collection) Act 1988

165

Family Law Act 1975

165

Part 2--Savings

179

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 1

A Bill for an Act to amend the Family Law Act

1975, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Family Law Amendment (Shared

Parental Responsibility) Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedules 1

and 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

3. Schedule 3

1 July 2006.

1 July 2006

4. Schedule 4,

items 1 to 8

The day on which this Act receives the

Royal Assent.

5. Schedule 4,

items 9 to 139

At the same time as the provision(s) covered

by table item 2.

6. Schedules 5 to

At the same time as the provision(s) covered

by table item 2.

7. Schedule 8,

item 1

At the same time as the provision(s) covered

by table item 2.

However, if section 6 of the Australian

Citizenship Act 2005 commences before that

time, the provision does not commence at

all.

8. Schedule 8,

item 2

The later of:

(a) the time that the provision(s) covered by

table item 2 commence; and

(b) immediately after section 6 of the

Australian Citizenship Act 2005

commences.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

9. Schedule 8,

items 3 to 104

At the same time as the provision(s) covered

by table item 2.

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 3

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement Date/Details

10. Schedule 9

At the same time as the provision(s) covered

by table item 2.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Shared parental responsibility

Part 1 Amendments

4 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 1--Shared parental responsibility

Part 1--Amendments

Family Law Act 1975

1 Subsection 4(1)

Insert:

Aboriginal child means a child who is a descendant of the

Aboriginal people of Australia.

2 Subsection 4(1)

Insert:

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.

3 Subsection 4(1)

Insert:

family violence means conduct, whether actual or threatened, by a

person towards, or towards the property of, a member of the

person's family that causes that or any other member of the

person's family reasonably to fear for, or reasonably to be

apprehensive about, his or her personal wellbeing or safety.

4 Subsection 4(1)

Insert:

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

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 5

(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.

Note:

Paragraph (e)--a decision by a parent of the child to form a

relationship with a new partner will not, of itself, involve a major

long-term issue in relation to the child. 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.

5 Subsection 4(1)

Insert:

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).

6 Subsection 4(1)

Insert:

Torres Strait Islander child means a child who is a descendant of

the Indigenous inhabitants of the Torres Strait Islands.

7 At the end of section 4

Add:

(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.

Schedule 1 Shared parental responsibility

Part 1 Amendments

6 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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.

8 Section 60B

Repeal the section, substitute:

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

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

the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their

children; and

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 7

(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.

9 After Subdivision B of Division 1 of Part VII

Insert:

Subdivision BA--Best interests of the child

60CA Child's best interests paramount consideration in making a

parenting order

In deciding whether to make a particular parenting order in relation

to a child, a court must regard the best interests of the child as the

paramount consideration.

60CB Proceedings to which Subdivision applies

(1) This Subdivision applies to any proceedings under this Part in

which the best interests of a child are the paramount consideration.

Note:

Division 10 also allows a court to make an order for a child's interests

to be independently represented by a lawyer in proceedings under this

Part in which the best interests of a child are the paramount

consideration.

(2) This Subdivision also applies to proceedings, in relation to a child,

to which subsection 60G(2), 63F(2) or 63F(6) or section 68R

applies.

Schedule 1 Shared parental responsibility

Part 1 Amendments

8 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

60CC How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best

interests, the court must consider the matters set out in

subsections (2) and (3).

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship

with both of the child's parents; and

(b) the need to protect the child from physical or psychological

harm from being subjected to, or exposed to, abuse, neglect

or family violence.

Note:

Making these considerations the primary ones is consistent with the

objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the

child's maturity or level of understanding) that the court

thinks are relevant to the weight it should give to the child's

views;

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other

relative of the child);

facilitate, and encourage, a close and continuing relationship

between the child and the other parent;

(d) the likely effect of any changes in the child's circumstances,

including the likely effect on the child of any separation

from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any

grandparent or other relative of the child), with whom

he or she has been living;

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 9

(e) the practical difficulty and expense of a child having contact

with a parent and whether that difficulty or expense will

substantially affect the child's right to maintain personal

relations and direct contact with both parents on a regular

basis;

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other

relative of the child);

to provide for the needs of the child, including emotional and

intellectual needs;

(g) the maturity, sex, lifestyle and background (including

lifestyle, culture and traditions) of the child and of either of

the child's parents, and any other characteristics of the child

that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander

child:

(i) the child's right to enjoy his or her Aboriginal or Torres

Strait Islander culture (including the right to enjoy that

culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under

this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of

parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the

child's family;

(k) any family violence order that applies to the child or a

member of the child's family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

(l) whether it would be preferable to make the order that would

be least likely to lead to the institution of further proceedings

in relation to the child;

(m) any other fact or circumstance that the court thinks is

relevant.

(4) Without limiting paragraphs (3)(c) and (i), the court must consider

the extent to which each of the child's parents has fulfilled, or

failed to fulfil, his or her responsibilities as a parent and, in

particular, the extent to which each of the child's parents:

Schedule 1 Shared parental responsibility

Part 1 Amendments

10 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(a) has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major

long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long-term

issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

maintain the child.

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:

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 11

(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

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 inform the court of the child's views.

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.

Schedule 1 Shared parental responsibility

Part 1 Amendments

12 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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.

10 Subsection 60G(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

11 At the end of Division 1 of Part VII

Add:

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.

Phase 1 (from commencement to 30 June 2007)

(2) The dispute resolution provisions of the Family Law Rules 2004

impose the requirements for dispute resolution that must be

complied with before an application is made to the Family Court of

Australia for a parenting order.

(3) By force of this subsection, the dispute resolution provisions of the

Family Law Rules 2004 also apply to an application to a court

(other than the Family Court of Australia) for a parenting order.

Those provisions apply to the application with such modifications

as are necessary.

(4) Subsection (3) applies to an application for a parenting order if the

application is made:

(a) on or after the commencement of this section; and

(b) before 1 July 2007.

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 13

Phase 2 (from 1 July 2007 to first proclaimed date)

(5) Subsections (7) to (12) apply to an application for a Part VII order

in relation to a child if:

(a) the application is made on or after 1 July 2007 and before the

date fixed by Proclamation for the purposes of this

paragraph; and

(b) none of the parties to the proceedings on the application has

applied, before 1 July 2007, for a Part VII order in relation to

the child.

Phase 3 (from second proclaimed date)

(6) Subsections (7) to (12) apply to all applications for a Part VII order

in relation to a child that are made on or after the date fixed by

Proclamation for the purposes of this subsection.

Requirement to attempt to resolve dispute by family dispute

resolution before applying for a parenting order

(7) Subject to subsection (9), a court exercising jurisdiction under this

Act must not hear an application for a Part VII order in relation to a

child unless the applicant files in the court a certificate given to the

applicant by a family dispute resolution practitioner under

subsection (8). The certificate must be filed with the application for

the Part VII order.

Certificate by family dispute resolution practitioner

(8) A family dispute resolution practitioner may give one of these

kinds of certificates to a person:

(a) a certificate to the effect that the person did not attend family

dispute resolution with the practitioner and the other party or

parties to the proceedings in relation to the issue or issues

that the order would deal with, but the person's failure to do

so was due to the refusal, or the failure, of the other party or

parties to the proceedings to attend;

(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;

Schedule 1 Shared parental responsibility

Part 1 Amendments

14 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

dispute resolution with the practitioner and the other party or

parties to the proceedings in relation to the issue or issues

that the order would deal with, but that the person, the other

party or another of the parties did not make a genuine effort

to resolve the issue or issues.

Note:

When an applicant files one of these certificates under subsection (7),

the court may take the kind of certificate into account in considering

whether to make an order referring to parties to family dispute

resolution (see section 13C) and in determining whether to award

costs against a party (see section 117).

Exception

(9) Subsection (7) does not apply to an application for a Part VII order

in relation to a child if:

(a) the applicant is applying for the order:

(i) to be made with the consent of all the parties to the

proceedings; or

(ii) in response to an application that another party to the

proceedings has made for a Part VII order; or

(b) the court is satisfied that there are reasonable grounds to

believe that:

(i) there has been abuse of the child by one of the parties to

the proceedings; or

(ii) there would be a risk of abuse of the child if there were

to be a delay in applying for the order; or

(iii) there has been family violence by one of the parties to

the proceedings; or

(iv) there is a risk of family violence by one of the parties to

the proceedings; or

(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

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 15

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

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.

Schedule 1 Shared parental responsibility

Part 1 Amendments

16 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

60J Family dispute resolution not attended because of child abuse or

family violence

(1)

If:

(a) subsections 60I(7) to (12) apply to an application for a

Part VII order (see subsections 60I(5) and (6)); and

(b) subsection 60I(7) does not apply to the application because

the court is satisfied that there are reasonable grounds to

believe that:

(i) there has been abuse of the child by one of the parties to

the proceedings; or

(ii) there has been family violence by one of the parties to

the proceedings;

a court must not hear the application unless the applicant has

indicated in writing that the applicant has received information

from a family counsellor or family dispute resolution practitioner

about the services and options (including alternatives to court

action) available in circumstances of abuse or violence.

(2) Subsection (1) does not apply if the court is satisfied that there are

reasonable grounds to believe that:

(a) there would be a risk of abuse of the child if there were to be

a delay in applying for the order; or

(b) there is a risk of family violence by one of the parties to the

proceedings.

(3)

The

validity

of:

(a) proceedings on an application for a Part VII order; or

(b) any order made in those proceedings;

is not affected by a failure to comply with subsection (1) in relation

to those proceedings.

(4)

If:

(a) the applicant indicates in writing that the applicant has not

received information about the services and options

(including alternatives to court action) available in

circumstances of abuse or violence; and

(b) subsection (2) does not apply;

the principal executive officer of the court concerned must ensure

that the applicant is referred to a family counsellor or family

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 17

dispute resolution practitioner in order to obtain information about

those matters.

60K Court to take prompt action in relation to allegations of child

abuse or family violence

(1) This section applies if:

(a) an application is made to a court for a Part VII order in

relation to a child; and

(b) a document is filed in the court, on or after the

commencement of this section, in relation to the proceedings

for the order; and

(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.

The document referred to in paragraph (b) may be the application

itself or another document.

(2) As soon as practicable after the document is filed, and in any event

within 8 weeks after the document is filed, the court must:

(a) consider what orders (if any) should be made:

(i) to enable appropriate evidence about the allegation to be

obtained as expeditiously as possible; and

(ii) to protect the child or any of the parties to the

proceedings; and

(b) make such orders of that kind as the court considers

appropriate.

(3) Without limiting subparagraph (2)(a)(i), the court must consider

whether orders should be made under section 69ZW to obtain

reports from State and Territory agencies in relation to the

allegations.

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Part 1 Amendments

18 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(4) Without limiting paragraph (2)(a)(ii), the court must consider

whether orders should be made, or an injunction granted, under

section 68B.

12 At the end of subsection 61C(1)

Add:

Note 1:

This section states the legal position that prevails in relation to

parental responsibility to the extent to which it is not displaced by a

parenting order made by the court. See subsection (3) of this section

and subsection 61D(2) for the effect of a parenting order.

Note 2:

This section does not establish a presumption to be applied by the

court when making a parenting order. See section 61DA for the

presumption that the court does apply when making a parenting order.

Note 3:

Under section 63C, the parents of a child may make a parenting plan

that deals with the allocation of parental responsibility for the child.

13 After section 61D

Insert:

61DA Presumption of equal shared parental responsibility when

making parenting orders

(1) When making a parenting order in relation to a child, the court

must apply a presumption that it is in the best interests of the child

for the child's parents to have equal shared parental responsibility

for the child.

Note:

The presumption provided for in this subsection is a presumption that

relates solely to the allocation of parental responsibility for a child as

defined in section 61B. It does not provide for a presumption about

the amount of time the child spends with each of the parents (this

issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to

believe that a parent of the child (or a person who lives with a

parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a

member of the parent's family (or that other person's

family); or

(b)

family

violence.

(3) When the court is making an interim order, the presumption

applies unless the court considers that it would not be appropriate

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 19

in the circumstances for the presumption to be applied when

making that order.

(4) The presumption may be rebutted by evidence that satisfies the

court that it would not be in the best interests of the child for the

child's parents to have equal shared parental responsibility for the

child.

61DB Application of presumption of equal shared parental

responsibility after interim parenting order made

If there is an interim parenting order in relation to a child, the court

must, in making a final parenting order in relation to the child,

disregard the allocation of parental responsibility made in the

interim order.

14 At the end of Division 2 of Part VII

Add:

61F Application to Aboriginal or Torres Strait Islander children

In:

(a) applying this Part to the circumstances of an Aboriginal or

Torres Strait Islander child; or

(b) identifying a person or persons who have exercised, or who

may exercise, parental responsibility for such a child;

the court must have regard to any kinship obligations, and

child-rearing practices, of the child's Aboriginal or Torres Strait

Islander culture.

15 After subsection 62G(3)

Insert:

(3A) A family consultant who is directed to give the court a report on a

matter under subsection (2) must:

(a) ascertain the views of the child in relation to that matter; and

(b) include the views of the child on that matter in the report.

Note:

A person cannot require a child to express his or her views in relation

to any matter (see section 60CE).

Schedule 1 Shared parental responsibility

Part 1 Amendments

20 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(3B) Subsection (3A) does not apply if complying with that subsection

would be inappropriate because of:

(a) the child's age or maturity; or

(b) some other special circumstance.

16 After paragraph 63C(1)(b)

Insert:

(ba) is signed by the parents of the child; and

(bb) is dated; and

17 Subsection 63C(2)

Repeal the subsection, substitute:

(2) A parenting plan may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other

persons;

(d) if 2 or more persons are to share parental responsibility for a

child--the form of consultations those persons are to have

with one another about decisions to be made in the exercise

of that responsibility;

(e) the communication a child is to have with another person or

other persons;

(f) maintenance of a child;

(g) the process to be used for resolving disputes about the terms

or operation of the plan;

(h) the process to be used for changing the plan to take account

of the changing needs or circumstances of the child or the

parties to the plan;

(i) any aspect of the care, welfare or development of the child or

any other aspect of parental responsibility for a child.

Note: Paragraph

(f)--if

the

Child Support (Assessment) Act 1989 applies,

provisions in a parenting plan dealing with the maintenance of a child

(as distinct from child support under that Act) are unenforceable and

of no effect unless the provisions in the plan are a child support

agreement (see section 63CAA and subsection 63G(5) of this Act).

(2A) The person referred to in subsection (2) may be, or the persons

referred to in that subsection may include, either a parent of the

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 21

child or a person other than the parent of the child (including a

grandparent or other relative of the child).

(2B) Without limiting paragraph (2)(c), the plan may deal with the

allocation of responsibility for making decisions about major

long-term issues in relation to the child.

(2C) The communication referred to in paragraph (2)(e) includes (but is

not limited to) communication by:

(a)

letter;

and

(b) telephone, email or any other electronic means.

18 Section 63DA

Repeal the section, substitute:

63DA Obligations of advisers

(1) If an adviser gives advice or assistance to people in relation to

parental responsibility for a child following the breakdown of the

relationship between those people, the adviser must:

(a) inform them that they could consider entering into a

parenting plan in relation to the child; and

(b) inform them about where they can get further assistance to

develop a parenting plan and the content of the plan.

(2) If an adviser gives advice to people in connection with the making

by those people of a parenting plan in relation to a child, the

adviser must:

(a) inform them that, if the child spending equal time with each

of them is:

(i) reasonably practicable; and

(ii) in the best interests of the child;

they could consider the option of an arrangement of that

kind; and

(b) inform them that, if the child spending equal time with each

of them is not reasonably practicable or is not in the best

interests of the child but the child spending substantial and

significant time with each of them is:

(i) reasonably practicable; and

(ii) in the best interests of the child;

Schedule 1 Shared parental responsibility

Part 1 Amendments

22 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

they could consider the option of an arrangement of that

kind; and

plans should be made in the best interests of the child; and

(d) inform them of the matters that may be dealt with in a

parenting plan in accordance with subsection 63C(2); and

(e) inform them that, if there is a parenting order in force in

relation to the child, the order may (because of section 64D)

include a provision that the order is subject to a parenting

plan they enter into; and

(f) inform them about the desirability of including in the plan:

(i) if they are to share parental responsibility for the child

under the plan--provisions of the kind referred to in

paragraph 63C(2)(d) (which deals with the form of

consultations between the parties to the plan) as a way

of avoiding future conflicts over, or misunderstandings

about, the matters covered by that paragraph; and

(ii) provisions of the kind referred to in paragraph

63C(2)(g) (which deals with the process for resolving

disputes between the parties to the plan); and

(iii) provisions of the kind referred to in paragraph

63C(2)(h) (which deals with the process for changing

the plan to take account of the changing needs or

circumstances of the child or the parties to the plan);

and

(g) explain to them, in language they are likely to readily

understand, the availability of programs to help people who

experience difficulties in complying with a parenting plan;

and

(h) inform them that section 65DAB requires the court to have

regard to the terms of the most recent parenting plan in

relation to the child when making a parenting order in

relation to the child if it is in the best interests of the child to

do so.

Note:

Paragraphs (a) and (b) only require the adviser to inform the people

that they could consider the option of the child spending equal time, or

substantial and significant time, with each of them. The adviser may,

but is not obliged to, advise them as to whether that option would be

appropriate in their particular circumstances.

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 23

(3) For the purposes of paragraph (2)(b), a child will be taken to spend

substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to

be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance

to the child; and

be involved in occasions and events that are of special

significance to the parent.

(4) Subsection (3) does not limit the other matters to which regard may

be had in determining whether the time a child spends with a

parent would be substantial and significant.

(5) In this section:

adviser means a person who is:

(a) a legal practitioner; or

(b) a family counsellor; or

(d) a family consultant.

19 Paragraph 63E(3)(b)

Omit "subsection 68F(2)", substitute "subsections 60CC(2) and (3)".

20 Subsection 63F(6) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

21 Subsection 63H(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

22 Subsections 64B(2) to (4)

Repeal the subsections, substitute:

(2) A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

Schedule 1 Shared parental responsibility

Part 1 Amendments

24 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(b) the time a child is to spend with another person or other

persons;

(d) if 2 or more persons are to share parental responsibility for a

child--the form of consultations those persons are to have

with one another about decisions to be made in the exercise

of that responsibility;

(e) the communication a child is to have with another person or

other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court

for a variation of the order to take account of the changing

needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is

made;

(h) the process to be used for resolving disputes about the terms

or operation of the order;

(i) any aspect of the care, welfare or development of the child or

any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons

referred to in this subsection may include, either a parent of the

child or a person other than the parent of the child (including a

grandparent or other relative of the child).

Note:

Paragraph (f)--a parenting order cannot deal with the maintenance of

a child if the Child Support (Assessment) Act 1989 applies.

(3) Without limiting paragraph (2)(c), the order may deal with the

allocation of responsibility for making decisions about major

long-term issues in relation to the child.

(4) The communication referred to in paragraph (2)(e) includes (but is

not limited to) communication by:

(a)

letter;

and

(b) telephone, email or any other electronic means.

(4A) Without limiting paragraphs (2)(g) and (h), the parenting order

may provide that the parties to the proceedings must consult with a

family dispute resolution practitioner to assist with:

(a) resolving any dispute about the terms or operation of the

order; or

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 25

(b) reaching agreement about changes to be made to the order.

23 Subsection 64B(5)

Omit "(c)", substitute "(f)".

24 Subsections 64B(6) to (8)

Repeal the subsections, substitute:

(6) For the purposes of this Act:

(a) a parenting order that provides that a child is to live with a

person is made in favour of that person; and

(b) a parenting order that provides that a child is to spend time

with a person is made in favour of that person; and

communication with a person is made in favour of that

person; and

(d) a parenting order that:

(i) allocates parental responsibility for a child to a person;

(ii) provides that a person is to share parental responsibility

for a child with another person;

made in favour of that person.

25 At the end of Division 5 of Part VII

Add:

64D Parenting orders subject to later parenting plans

(1) Subject to subsection (2), a parenting order in relation to a child is

taken to include a provision that the order is subject to a parenting

plan that is:

(a) entered into subsequently by the child's parents; and

(b) agreed to, in writing, by any other person (other than the

child) to whom the parenting order applies.

(2) The court may, in exceptional circumstances, include in a

parenting order a provision that the parenting order, or a specified

provision of the parenting order, may only be varied by a

subsequent order of the court (and not by a parenting plan).

Schedule 1 Shared parental responsibility

Part 1 Amendments

26 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

26 Section 65A

Before "This", insert "(1)".

27 At the end of section 65A

Add:

Note:

Paragraph (a)--section 60I provides that people with disputes about

matters that may be dealt with in a Part VII order (which includes a

parenting order) should generally make use of family dispute

resolution before applying for the order.

(2) Measures designed to improve communication between separated

parents and to educate parents about their respective

responsibilities in relation to their children are contained in this

Division (see section 65DA).

Note:

Division 13A provides for the compliance regime for dealing with

contraventions, and alleged contraventions, of parenting orders.

28 Section 65AA

Repeal the section, substitute:

65AA Child's best interests paramount consideration in making a

parenting order

Section 60CA provides that in deciding whether to make a

particular parenting order in relation to a child, a court must regard

the best interests of the child as the paramount consideration.

29 Subsection 65D(1)

After "subject to", insert "sections 61DA (presumption of equal shared

parental responsibility when making parenting orders) and 65DAB

(parenting plans) and".

30 Subsection 65D(2)

After "subject to", insert "section 61DA (presumption of equal shared

parental responsibility when making parenting orders) and 65DAB

(parenting plans) and".

31 After section 65D

Insert:

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 27

65DAA Court to consider child spending equal time or substantial

and significant time with each parent in certain

circumstances

Equal time

(1) If a parenting order provides (or is to provide) that a child's parents

are to have equal shared parental responsibility for the child, the

court must:

(a) consider whether the child spending equal time with each of

the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of

the parents is reasonably practicable; and

provision in the order) for the child to spend equal time with

each of the parents.

Note 1:

The effect of section 60CA is that in deciding whether to go on to

make a parenting order for the child to spend equal time with each of

the parents, the court will regard the best interests of the child as the

paramount consideration.

Note 2:

See subsection (5) for the factors the court takes into account in

determining what is reasonably practicable.

Substantial and significant time

(2)

If:

(a) a parenting order provides (or is to provide) that a child's

parents are to have equal shared parental responsibility for

the child; and

(b) the court does not make an order (or include a provision in

the order) for the child to spend equal time with each of the

parents; and

the court must:

significant time with each of the parents would be in the best

interests of the child; and

(d) consider whether the child spending substantial and

significant time with each of the parents is reasonably

practicable; and

Schedule 1 Shared parental responsibility

Part 1 Amendments

28 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(e) if it is, consider making an order to provide (or including a

provision in the order) for the child to spend substantial and

significant time with each of the parents.

Note 1:

The effect of section 60CA is that in deciding whether to go on to

make a parenting order for the child to spend substantial time with

each of the parents, the court will regard the best interests of the child

as the paramount consideration.

Note 2:

See subsection (5) for the factors the court takes into account in

determining what is reasonably practicable.

(3) For the purposes of subsection (2), a child will be taken to spend

substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to

be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance

to the child; and

be involved in occasions and events that are of special

significance to the parent.

(4) Subsection (3) does not limit the other matters to which a court can

have regard in determining whether the time a child spends with a

parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether

it is reasonably practicable for a child to spend equal time, or

substantial and significant time, with each of the child's parents,

the court must have regard to:

(a) how far apart the parents live from each other; and

(b) the parents' current and future capacity to implement an

arrangement for the child spending equal time, or substantial

and significant time, with each of the parents; and

each other and resolve difficulties that might arise in

implementing an arrangement of that kind; and

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 29

(d) the impact that an arrangement of that kind would have on

the child; and

(e) such other matters as the court considers relevant.

Note 1:

Behaviour of a parent that is relevant for paragraph (c) may also be

taken into account in determining what parenting order the court

should make in the best interests of the child. Subsection 60CC(3)

provides for considerations that are taken into account in determining

what is in the best interests of the child. These include:

(a)

the willingness and ability of each of the child's parents to

facilitate, and encourage, a close and continuing relationship

between the child and the other parent (paragraph 60CC(3)(c));

(b)

the attitude to the child, and to the responsibilities of parenthood,

demonstrated by each of the child's parents (paragraph

60CC(3)(i)).

Note 2:

Paragraph (c) reference to future capacity--the court has power under

section 13C to make orders for parties to attend family counselling or

family dispute resolution or participate in courses, programs or

services.

65DAB Court to have regard to parenting plans

When making a parenting order in relation to a child, the court is to

have regard to the terms of the most recent parenting plan (if any)

that has been entered into between the child's parents (to the extent

to which that plan relates to the child) if doing so would be in the

best interests of the child.

65DAC Effect of parenting order that provides for shared parental

responsibility

(1) This section applies if, under a parenting order:

(a) 2 or more persons are to share parental responsibility for a

child; and

(b) the exercise of that parental responsibility involves making a

decision about a major long-term issue in relation to the

child.

(2) The order is taken to require the decision to be made jointly by

those persons.

Note:

Subject to any court orders, decisions about issues that are not major

long-term issues are made by the person with whom the child is

spending time without a need to consult the other person (see

section 65DAE).

Schedule 1 Shared parental responsibility

Part 1 Amendments

30 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(3) The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be

made about that issue; and

(b) to make a genuine effort to come to a joint decision about

that issue.

(4) To avoid doubt, this section does not require any other person to

establish, before acting on a decision about the child

communicated by one of those persons, that the decision has been

made jointly.

65DAE No need to consult on issues that are not major long-term

issues

(1) If a child is spending time with a person at a particular time under a

parenting order, the order is taken not to require the person to

consult a person who:

(a) has parental responsibility for the child; or

(b) shares parental responsibility for the child with another

person;

about decisions that are made in relation to the child during that

time on issues that are not major-long term issues.

Note:

This will mean that the person with whom the child is spending time

will usually not need to consult on decisions about such things as what

the child eats or wears because these are usually not major long-term

issues.

(2) Subsection (1) applies subject to any provision to the contrary

made by a parenting order.

32 Section 65E

Repeal the section.

33 Paragraph 65G(2)(a)

Repeal the paragraph, substitute:

(a) the parties to the proceedings have attended a conference

with a family consultant to discuss the matter to be

determined by the proposed order; or

34 Subsection 65L(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 31

35 Subsection 65LA(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

36 Section 67L (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

37 Section 67V (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

38 Subsection 67ZC(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

39 Subsection 69ZH(2)

After "subsection,", insert "Subdivision BA of Division 1,".

40 Subsection 117(1)

After "sections 117AA", insert ", 117AB".

41 After section 117AA

Insert:

117AB Costs where false allegation or statement made

(1) This section applies if:

(a) proceedings under this Act are brought before a court; and

(b) the court is satisfied that a party to the proceedings

knowingly made a false allegation or statement in the

proceedings.

(2) The court must order that party to pay some or all of the costs of

another party, or other parties, to the proceedings.

Schedule 1 Shared parental responsibility

Part 2 Application of amendments

32 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Part 2--Application of amendments

42 Definitions

In this Part:

commencement means the commencement of this Schedule.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

43 Application

(1)

Section 60CC of the new Act applies to proceedings initiated on or after

commencement. Despite its repeal by item 5 of Schedule 5, section 68F

of the old Act continues to apply to proceedings initiated before

commencement.

(2)

The amendments made by items 13, 29 and 30 of this Schedule apply to

parenting orders made in proceedings initiated on or after

commencement.

(3)

The amendment made by item 14 of this Schedule applies to

proceedings under Part VII, whether or not the proceedings were

initiated before commencement.

(4)

The amendment made by item 15 of this Schedule applies to directions

given under subsection 62G(2) of the new Act on or after

commencement.

(5)

The amendment made by item 16 of this Schedule applies to parenting

plans made on or after commencement.

(6)

The amendment made by item 22 of this Schedule applies to parenting

orders made in proceedings initiated on or after commencement.

(7)

The amendment made by item 25 of this Schedule applies to parenting

orders made on or after commencement. This includes, without

limitation, a parenting order that varies an earlier parenting order,

whether the earlier parenting order was made before or after

commencement.

Shared parental responsibility Schedule 1

Application of amendments Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 33

(8)

Sections 65DAA, 65DAB, 65DAC and 65DAE of the new Act apply to

parenting orders made in proceedings initiated on or after

commencement.

(9)

The amendment made by item 33 of this Schedule applies to a court

proposing to make an order mentioned in subsection 65G(1) of the new

Act, whether or not the proceedings to which the order relates were

initiated before commencement.

Schedule 2 Compliance regime

Part 1 Amendments

34 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 2--Compliance regime

Part 1--Amendments

Family Law Act 1975

1 Section 60C (table item 6)

Omit "--stage 1 of parenting compliance regime".

2 Section 60C (table item 13A)

Omit "--stage 2 of parenting compliance regime".

3 Section 60C (table item 13A)

Omit "--stage 3 of parenting compliance regime".

4 Subsection 65D(3)

Omit "paragraph 70NG(1)(c) of proceedings under Subdivision B",

substitute "paragraph 70NEB(1)(c) of proceedings under Subdivision

E".

5 Subsection 65D(3) (note)

Omit "Subdivision B", substitute "Subdivision E".

Note:

The heading to section 65DA is altered by omitting ": stage 1 of parenting compliance

regime".

6 Division 13A of Part VII

Repeal the Division, substitute:

Division 13A--Consequences of failure to comply with

orders, and other obligations, that affect children

Subdivision A--Preliminary

70NAA Simplified outline of Division

(1) This Division deals with the powers that a court with jurisdiction

under this Act has to make orders to enforce compliance with

orders under this Act affecting children.

Compliance regime Schedule 2

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 35

(2) The court always has the power to vary the order under

Subdivision B. In doing so, the court will have regard to any

parenting plan that has been entered into since the order was made

(see section 70NBB).

(3) The other orders that the court can make depend on whether:

(a) a contravention is alleged to have occurred but is not

established (Subdivision C); or

(b) the court finds that a contravention has occurred but there is a

reasonable excuse for the contravention (Subdivision D); or

reasonable excuse for the contravention (Subdivision E for

less serious contraventions and Subdivision F for more

serious contraventions).

70NAB Application of Division

Despite anything contained in any other provision of this Division,

this Division does not apply in respect of a contravention,

committed before this Division commences, of an order under this

Act affecting children if a court made an order, in respect of that

contravention before this Division commences, under this Act as

previously in force.

70NAC Meaning of contravened an order

A person is taken for the purposes of this Division to have

contravened an order under this Act affecting children if, and only

if:

(a) where the person is bound by the order--he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order;

(b) otherwise--he or she has:

(i) intentionally prevented compliance with the order by a

person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person

who is bound by it.

Note:

Parenting orders may be subject to any subsequent parenting plan (see

section 64D). This means that an action that would otherwise

contravene a parenting order may not be a contravention, because of a

Schedule 2 Compliance regime

Part 1 Amendments

36 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

subsequent inconsistent parenting plan. Whether this is the case or not

depends on the terms of the parenting order.

70NAD Requirements taken to be included in certain orders

For the purposes of this Division:

(a) a parenting order that deals with whom a child is to live with

is taken to include a requirement that people act in

accordance with section 65M in relation to the order; and

(b) a parenting order that deals with whom a child is to spend

time with is taken to include a requirement that people act in

accordance with section 65N in relation to the order; and

communicate with is taken to include a requirement that

people act in accordance with section 65NA in relation to the

order; and

(d) a parenting order to which section 65P applies is taken to

include a requirement that people act in accordance with that

section in relation to the order.

70NAE Meaning of reasonable excuse for contravening an order

(1) The circumstances in which a person may be taken to have had, for

the purposes of this Division, a reasonable excuse for

contravening an order under this Act affecting children include,

but are not limited to, the circumstances set out in subsections (2),

(4), (5), (6) and (7).

(2) A person (the respondent) is taken to have had a reasonable

excuse for contravening an order under this Act affecting children

if:

(a) the respondent contravened the order because, or

substantially because, he or she did not, at the time of the

contravention, understand the obligations imposed by the

order on the person who was bound by it; and

(b) the court is satisfied that the respondent ought to be excused

in respect of the contravention.

(3) If a court decides that a person had a reasonable excuse for

contravening an order under this Act for the reason referred to in

paragraph (2)(a), it is the duty of the court to explain to the person,

in language likely to be readily understood by the person, the

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obligations imposed on him or her by the order and the

consequences that may follow if he or she again contravenes the

order.

(4) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to the extent to which it deals

with whom a child is to live with in a way that resulted in the child

not living with a person in whose favour the order was made if:

(a) the respondent believed on reasonable grounds that the

actions constituting the contravention were necessary to

protect the health or safety of a person (including the

respondent or the child); and

(b) the period during which, because of the contravention, the

child did not live with the person in whose favour the order

was made was not longer than was necessary to protect the

health or safety of the person referred to in paragraph (a).

(5) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to the extent to which it deals

with whom a child is to spend time with in a way that resulted in a

person and a child not spending time together as provided for in the

order if:

(a) the respondent believed on reasonable grounds that not

allowing the child and the person to spend time together was

necessary to protect the health or safety of a person

(including the respondent or the child); and

(b) the period during which, because of the contravention, the

child and the person did not spend time together was not

longer than was necessary to protect the health or safety of

the person referred to in paragraph (a).

(6) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to the extent to which it deals

with whom a child is to communicate with in a way that resulted in

a person and a child not having the communication provided for

under the order if:

(a) the respondent believed on reasonable grounds that not

allowing the child and the person to communicate together

was necessary to protect the health or safety of a person

(including the respondent or the child); and

(b) the period during which, because of the contravention, the

child and the person did not communicate was not longer

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than was necessary to protect the health or safety of the

person referred to in paragraph (a).

(7) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to which section 65P applies by

acting contrary to section 65P if:

(a) the respondent believed on reasonable grounds that the action

constituting the contravention was necessary to protect the

health or safety of a person (including the respondent or the

child); and

(b) the period during which, because of that action, a person in

whose favour the order was made was hindered in or

prevented from discharging responsibilities under the order

was not for longer than was necessary to protect the health or

safety of the person referred to in paragraph (a).

70NAF Standard of proof

(1) Subject to subsection (3), the standard of proof to be applied in

determining matters in proceedings under this Division is proof on

the balance of probabilities.

(2) Without limiting subsection (1), that subsection applies to the

determination of whether a person who contravened an order under

this Act affecting children had a reasonable excuse for the

contravention.

(3) The court may only make an order under:

(a) paragraph 70NFB(2)(a), (d) or (e); or

(b)

paragraph

70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds

for making the order exist.

Subdivision B--Court's power to vary parenting order

70NBA Variation of parenting order

(1) A court having jurisdiction under this Act may make an order

varying a primary order if:

(a) proceedings in relation to the primary order are brought

before a court having jurisdiction under this Act; and

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(b) it is alleged in those proceedings that a person committed a

contravention of the primary order and either:

(i) the court does not find that the person committed a

contravention of the primary order; or

(ii) the court finds that the person committed a

contravention of the primary order.

(2) If Subdivision F applies to the contravention, when making an

order under subsection (1) varying a primary order, the court, in

addition to regarding, under section 60CA, the best interests of the

child as the paramount consideration, must, if any of the following

considerations is relevant, take that consideration into account:

(a) the person who contravened the primary order did so after

having attended, after having refused or failed to attend, or

after having been found to be unsuitable to take any further

part in, a post-separation parenting program or a part of such

a program;

(b) there was no post-separation parenting program that the

person who contravened the primary order could attend;

primary order, it was not appropriate, in the court's opinion,

for the person to attend a post-separation parenting program,

or a part of such a program;

(d) the primary order was a compensatory parenting order made

under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the

person had contravened a previous order under this Act

affecting children.

(3) This section does not limit the circumstances in which a court

having jurisdiction under this Act may vary a primary order.

70NBB Effect of parenting plan

(1) This section applies if:

(a) a parenting order has been made in relation to a child

(whether before or after the commencement of this section);

and

(b) after the parenting order was made, the parents of the child

made a parenting plan that dealt with a matter (the relevant

matter) that was dealt with in the parenting order.

(2)

If:

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(a) section 70NBA applies to proceedings brought in relation to

the parenting order in relation to the relevant matter; and

(b) the parenting plan was in force when the contravention of the

parenting order:

(i) is alleged to have been committed; or

(ii)

occurred;

the court must, in exercising its powers under section 70NBA:

(d) consider whether to exercise its powers under section 70NBA

to make an order varying the parenting order to include (with

or without modification) some or all of the provisions of the

parenting plan.

Note:

An action that would otherwise contravene a parenting order may not

be a contravention because of a subsequent inconsistent parenting

plan. Whether this is the case or not depends on the terms of the

parenting order (see section 64D).

Subdivision C--Contravention alleged but not established

70NCA Application of Subdivision

This Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Subdivision; and

(b) proceedings in relation to the primary order are brought

before a court having jurisdiction under this Act; and

respondent) committed a contravention of the primary order;

and

(d) the court does not find that the respondent committed a

contravention of the primary order.

Note:

The court may also vary the primary order under Subdivision B.

70NCB Costs

(1) The court may make an order that the person who brought the

proceedings (the applicant) pay some or all of the costs of another

party, or other parties, to the proceedings.

(2) The court must consider making an order under subsection (1) if:

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(a) the applicant has previously brought proceedings in relation

to the primary order or another primary order in which the

applicant alleged that the respondent committed a

contravention of the primary order or that other primary

order; and

(b) on the most recent occasion on which the applicant brought

proceedings of the kind referred to in paragraph (a), the court

before which the proceedings were brought:

(i) was not satisfied that the respondent had committed a

contravention of the primary order or that other primary

order; or

(ii) was satisfied that the respondent had committed a

contravention of the primary order or that other primary

order but did not make an order under section 70NBA,

70NDB, 70NDC, 70NEB or 70NFB in relation to the

contravention.

Subdivision D--Contravention established but reasonable

excuse for contravention

70NDA Application of Subdivision

This Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Subdivision; and

(b) a court having jurisdiction under this Act is satisfied that a

person (the respondent) has, whether before or after the

commencement, committed a contravention (the current

contravention) of the primary order; and

for the current contravention.

Note:

The court may also vary the primary order under Subdivision B.

70NDB Order compensating person for time lost

(1)

If:

(a) the primary order is a parenting order in relation to a child;

and

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(b) the current contravention resulted in a person not spending

time with the child (or the child not living with a person for a

particular period);

the court:

person for time the person did not spend with the child (or

the time the child did not live with the person) as a result of

the current contravention; and

(d) must consider making that kind of order.

Note:

If the person does not have a reasonable excuse for a contravention,

the court has the power to make an order compensating a person for

time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).

(2) The court must not make an order under paragraph (1)(c) if it

would not be in the best interests of the child for the court to do so.

70NDC Costs

(1) If the court does not make an order under section 70NDB in

relation to the current contravention, the court may make an order

that the person who brought the proceedings (the applicant) pay

some or all of the costs of another party, or other parties, to the

proceedings.

(2) The court must consider making an order under subsection (1) if:

(a) the applicant has previously brought proceedings in relation

to the primary order or another primary order in which the

applicant alleged that the respondent committed a

contravention of the primary order or that other primary

order; and

(b) on the most recent occasion on which the applicant brought

proceedings of the kind referred to in paragraph (a), the court

before which the proceedings were brought:

(i) was not satisfied that the respondent had committed a

contravention of the primary order or that other primary

order; or

(ii) was satisfied that the respondent had committed a

contravention of the primary order or that other primary

order but did not make an order under section 70NBA,

70NDB, 70NEB or 70NFB in relation to the

contravention.

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Subdivision E--Contravention without reasonable excuse (less

serious contravention)

70NEA Application of Subdivision

(1) Subject to subsection (4), this Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Division; and

(b) a court having jurisdiction under this Act is satisfied that a

person has, whether before or after that commencement,

committed a contravention (the current contravention) of the

primary order; and

excuse for the current contravention; and

(d) either subsection (2) or (3) applies;

and, if the primary order is an order for the maintenance of a child,

this Subdivision applies irrespective of the period since the current

contravention occurred.

(2) For the purposes of paragraph (1)(d), this subsection applies if no

court has previously:

(a) made an order imposing a sanction or taking an action in

respect of a contravention by the person of the primary order;

(b) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary order.

(3) For the purposes of paragraph (1)(d), this subsection applies if:

(a) a court has previously:

(i) made an order imposing a sanction or taking an action

in respect of a contravention by the person of the

primary order; or

(ii) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary

order; and

(b) the court, in dealing with the current contravention, is

satisfied that it is more appropriate for that contravention to

be dealt with under this Subdivision.

(4) This Subdivision does not apply if, in circumstances mentioned in

subsection (2), the court dealing with the current contravention is

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satisfied that the person who contravened the primary order has

behaved in a way that showed a serious disregard for his or her

obligations under the primary order.

70NEB Powers of court

(1) If this Subdivision applies, the court may do any or all of the

following:

(a) make an order directing:

(i) the person who committed the current contravention; or

(ii) that person and another specified person;

to attend a post-separation parenting program;

(b) if the current contravention is a contravention of a parenting

order in relation to a child--make a further parenting order

that compensates a person for time the person did not spend

with the child (or time the child did not live with the person)

as a result of the current contravention;

to the primary order to apply for a further parenting order

under Division 6 of Part VII that discharges, varies or

suspends the primary order or revives some or all of an

earlier parenting order;

(d) make an order requiring the person who committed the

current contravention to enter into a bond in accordance with

section 70NEC;

(e)

if:

(i) the current contravention is a contravention of a

parenting order in relation to a child; and

(ii) the current contravention resulted in a person not

spending time with the child (or the child not living with

a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably

incurs expenses as a result of the contravention;

make an order requiring the person who committed the

current contravention to compensate the person referred to in

subparagraph (ii) for some or all of the expenses referred to

in subparagraph (iii);

(f) make an order that the person who committed the current

contravention pay some or all of the costs of another party, or

other parties, to the proceedings under this Division; and

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(g) if the court makes no other orders in relation to the current

contravention--order that the person who brought the

proceedings in relation to the current contravention pay some

or all of the costs of the person who committed the current

contravention.

Note 1:

The court may also vary the primary order under Subdivision B.

Note 2:

Paragraph (1)(a)--before making an order under this paragraph, the

court must consider seeking the advice of a family consultant about

the services appropriate to the person's needs (see section 11E).

(2) The court must not make an order under paragraph (1)(a) directed

to a person other than the person who committed the current

contravention unless:

(a) the person brought the proceedings before the court in

relation to the current contravention or is otherwise a party to

those proceedings; and

(b) the court is satisfied that it is appropriate to direct the order to

the person because of the connection between the current

contravention and the carrying out by the person of his or her

parental responsibilities in relation to the child or children to

whom the primary order relates.

(3) If the court makes an order under paragraph (1)(a), the principal

executive officer of the court must ensure that the provider of the

program concerned is notified of the making of the order.

(4)

If:

(a) the current contravention is a contravention of a parenting

order in relation to a child; and

(b) the contravention resulted in a person not spending time with

the child (or the child not living with a person for a particular

period);

the court must consider making an order under paragraph (1)(b) to

compensate the person for the time the person did not spend with

the child (or the time the child did not live with the person) as a

result of the contravention.

(5) The court must not make an order under paragraph (1)(b) if it

would not be in the best interests of the child for the court to do so.

(6) In deciding whether to adjourn the proceedings as mentioned in

paragraph (1)(c), the court must have regard to the following:

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(a) whether the primary order was made by consent;

(b) whether either or both of the parties to the proceedings in

which the primary order was made were represented in those

proceedings by a legal practitioner;

order and the occurrence of the current contravention;

(d) any other matters that the court thinks relevant.

(7) The court must consider making an order under paragraph (1)(g) if:

(a) the person (the applicant) who brought the proceedings in

relation to the current contravention has previously brought

proceedings in relation to the primary order or another

primary order in which the applicant alleged that the person

(the respondent) who committed the current contravention

committed a contravention of the primary order or that other

primary order; and

(b) on the most recent occasion on which the applicant brought

proceedings of the kind referred to in paragraph (a), the court

before which the proceedings were brought:

(i) was not satisfied that the respondent had committed a

contravention of the primary order or that other primary

order; or

(ii) was satisfied that the respondent had committed a

contravention of the primary order or that other primary

order but did not make an order under section 70NDB,

70NDC, 70NEB, 70NFB or 70NBA in relation to the

contravention.

70NEC Bonds

(1) This section provides for bonds that a court may require a person to

enter into under paragraph 70NEB(1)(d).

(2) A bond is to be for a specified period of up to 2 years.

(3) A bond may be:

(a) with or without surety; and

(b) with or without security.

(4) The conditions that may be imposed on a person by a bond include

(without limitation) conditions that require the person:

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(a) to attend an appointment (or a series of appointments) with a

family consultant; or

(b) to attend family counselling; or

(d) to be of good behaviour.

(5) If a court proposes to require a person to enter into a bond, it must,

before making the requirement, explain to the person, in language

likely to be readily understood by the person:

(a) the purpose and effect of the proposed requirement; and

(b) the consequences that may follow if the person:

(i) fails to enter into the bond; or

(ii) having entered into the bond--fails to act in accordance

with the bond.

70NED Duties of provider of post-separation parenting program

The provider of a post-separation parenting program must inform

the court if:

(a) the provider considers that a person ordered to attend the

program under paragraph 70NEB(1)(a) is unsuitable to attend

the program, or to continue attending the program; or

(b) a person ordered to attend the program under paragraph

70NEB(1)(a) fails to attend the program, or a part of it.

70NEF Evidence

(1) Evidence of anything said, or of any admission made, by a person

attending a post-separation parenting program is not admissible:

(a) in any court (whether exercising federal jurisdiction or not);

(b) in any proceedings before a person authorised by a law of the

Commonwealth, of a State or of a Territory, or by the

consent of the parties, to hear evidence.

(2) Subsection (1) does not apply to the following:

(a) an admission by an adult that indicates that a child under 18

has been abused or is at risk of abuse;

(b) a disclosure by a child under 18 that indicates that the child

has been abused or is at risk of abuse;

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unless, in the opinion of the court, there is sufficient evidence of

the admission or disclosure available to the court from other

sources.

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

program

The court may make such orders as it considers appropriate, other

than the orders referred to in subsection 70NFB(2), in respect of a

person, if:

(a) it appears to the court that the person has not attended a

post-separation parenting program that the person was

ordered to attend; or

(b) the person was assessed as unsuitable to attend a program.

Subdivision F--Contravention without reasonable excuse

(more serious contravention)

70NFA Application of Subdivision

(1) Subject to subsection (2), this Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Division; and

(b) a court having jurisdiction under this Act is satisfied that a

person has, whether before or after that commencement,

committed a contravention (the current contravention) of the

primary order; and

excuse for the current contravention; and

(d) either subsection (2) or (3) applies.

Note:

For the standard of proof to be applied in determining whether a

contravention of the primary order has been committed, see

section 70NAF.

(2) For the purposes of paragraph (1)(d), this subsection applies if:

(a) no court has previously:

(i) made an order imposing a sanction or taking an action

in respect of a contravention by the person of the

primary order; or

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(ii) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary

order; and

(b) the court dealing with the current contravention is satisfied

that the person has behaved in a way that showed a serious

disregard of his or her obligations under the primary order.

(3) For the purposes of paragraph (1)(d), this subsection applies if a

court has previously:

(a) made an order imposing a sanction or taking an action in

respect of a contravention by the person of the primary order;

(b) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary order.

(4) This Subdivision does not apply if the court dealing with the

current contravention is satisfied that it is more appropriate for that

contravention to be dealt with under Subdivision E.

(5) This Subdivision applies whether the primary order was made, and

whether the current contravention occurred, before or after the

commencement of this Division.

70NFB Powers of court

(1) If this Subdivision applies, the court must, in relation to the person

who committed the current contravention:

(a) make an order under paragraph (2)(g), unless the court is

satisfied that it would not be in the best interests of the child

concerned to make that order; and

(b) if the court makes an order under paragraph (2)(g)--consider

making another order (or other orders) under subsection (2)

that the court considers to be the most appropriate of the

orders under subsection (2) in the circumstances; and

make at least one order under subsection (2), being the order

(or orders) that the court considers to be the most appropriate

of the orders under subsection (2) in the circumstances.

(2) The orders that are available to be made by the court are:

(a) if the court is empowered under section 70NFC to make a

community service order--to make such an order; or

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(b) to make an order requiring the person to enter into a bond in

accordance with section 70NFE; or

order in relation to a child--to make a further parenting order

that compensates a person for time the person did not spend

with the child (or the time the child did not live with the

person) as a result of the current contravention, unless it

would not be in the best interests of the child concerned to

make that order; or

(d) to fine the person not more than 60 penalty units; or

(e) subject to subsection (7), to impose a sentence of

imprisonment on the person in accordance with

section 70NFG; or

(f)

if:

(i) the current contravention is a contravention of a

parenting order in relation to a child; and

(ii) the current contravention resulted in a person not

spending time with the child (or the child not living with

a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably

incurs expenses as a result of the contravention;

to make an order requiring the person who committed the

current contravention to compensate the person referred to in

subparagraph (ii) for some or all of the expenses referred to

in subparagraph (iii); or

(g) to make an order that the person who committed the current

contravention pay all of the costs of another party, or other

parties, to the proceedings under this Division; or

(h) to make an order that the person who committed the current

contravention pay some of the costs of another party, or other

parties, to the proceedings under this Division.

Note:

The court may also vary the primary order under Subdivision B.

(3) If a court varies or discharges under section 70NFD a community

service order made under paragraph (2)(a), the court may give any

directions as to the effect of the variation or discharge that the

court considers appropriate.

(4) The court must not make an order imposing a sentence of

imprisonment on a person under this section in respect of a

contravention of a child maintenance order made under this Act

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unless the court is satisfied that the contravention was intentional

or fraudulent.

(5) The court must not make an order imposing a sentence of

imprisonment on a person under this section in respect of:

(a) a contravention of an administrative assessment of child

support made under the Child Support (Assessment) Act

1989; or

(b) a breach of a child support agreement made under that Act;

of Part 7 of that Act for a departure from such an assessment

(including such an order that contains matters mentioned in

section 141 of that Act).

(6) An order under this section may be expressed to take effect

immediately, at the end of a specified period or on the occurrence

of a specified event.

(7) When a court makes an order under this section, the court may

make any other orders that the court considers necessary to ensure

compliance with the order that was contravened.

70NFC When court is empowered to make a community service

order

(1) Subject to this section, if, under the law of a participating State or a

participating Territory, a court is empowered (whether generally or

in particular cases) to make a community service order in respect

of a person convicted of an offence against the law of the State or

Territory, a court exercising jurisdiction in the State or Territory

may, under paragraph 70NFB(2)(a) make a community service

order.

(2) A community service order made under paragraph 70NFB(2)(a):

(a) is to be such that the total number of hours during which the

order regulates the conduct of the person in respect of whom

it is made does not exceed the maximum period in relation to

the State or Territory in which the order is made; and

(b) ceases to have effect 2 years after it was made, or after such

lesser period as is specified in the order.

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(3) A community service order may be an order of any of the

following kinds:

(a) an order known as:

(i) a community service order; or

(ii) a work order; or

(iii) an attendance centre order; or

(iv) an attendance order; or

(v) a community based order;

(b) an order that is similar to an order referred to in

paragraph (a);

(4) If a court exercising jurisdiction under section 70NFB in a

particular State or Territory makes a community service order

under paragraph 70NFB(2)(a), the provisions of the laws of the

State or Territory with respect to a community service order that is

made under those laws are, to the extent provided by the

regulations and subject to such modifications as are specified in the

regulations, to apply in relation to the order.

(5) If a court proposes to make a community service order under

paragraph 70NFB(2)(a), it must, before doing so, explain to the

person in respect of whom it is made, in language likely to be

readily understood by the person:

(a) the purpose and effect of the proposed order; and

(b) the consequences that may follow if the person fails to

comply with the proposed order or with any requirements

made in relation to the order by or under the applied

provisions; and

applied provisions--that the proposed order may be so

revoked or varied.

(6) In this section:

maximum period, in relation to a State or Territory, means 500

hours or such lesser period as is prescribed in relation to the State

or Territory.

participating State means a State in relation to which an agreement

under section 70NFI is in force.

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participating Territory means a Territory in relation to which an

agreement under section 70NFI is in force.

70NFD Variation and discharge of community service orders

A community service order made under paragraph 70NFB(2)(a)

may be varied or discharged:

(a) if the court that made the order is the Family Court or the

Federal Magistrates Court--by either of those Courts; or

(b) otherwise--by the court that made the order or the Family

Court.

70NFE Bonds

(1) This section provides for bonds that a court may require a person to

enter into under paragraph 70NFB(2)(b).

(2) A bond is to be for a specified period of up to 2 years.

(3) A bond may be:

(a) with or without surety; and

(b) with or without security.

(4) The conditions that may be imposed on a person by a bond include

(without limitation) conditions that require the person:

(a) to attend an appointment (or a series of appointments) with a

family consultant; or

(b) to attend family counselling; or

(d) to be of good behaviour.

Note:

Before imposing a condition under this subsection, the court must

consider seeking the advice of a family consultant about the services

appropriate to the person's needs (see section 11E).

(5) If a court proposes to require a person to enter into a bond, it must,

before making the requirement, explain to the person, in language

likely to be readily understood by the person:

(a) the purpose and effect of the proposed requirement; and

(b) the consequences that may follow if the person:

(i) fails to enter into the bond; or

Schedule 2 Compliance regime

Part 1 Amendments

54 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(ii) having entered into the bond--fails to act in accordance

with the bond.

70NFF Procedure for enforcing community service orders or bonds

(1) If a court makes a community service order under paragraph

70NFB(2)(a) in respect of a person, or an order under paragraph

70NFB(2)(b) requiring a person to enter into a bond in accordance

with section 70NFE, the following provisions have effect.

(2) If the court (whether or not constituted by the judge or magistrate

who made the community service order or required the bond to be

entered into in accordance with section 70NFE) is satisfied that the

person has, without reasonable excuse, failed to comply with the

order or bond, the court may take action under subsection (3).

(3) The court may:

(a) without prejudice to the continuance of the community

service order or the bond entered into in accordance with

section 70NFE, impose a fine not exceeding 10 penalty units

on the person; or

(b) revoke the community service order or the bond entered into

in accordance with section 70NFE and, subject to

subsection (4), deal with the person, for the contravention in

respect of which the community service order was made or

the bond was entered into, in any manner in which the person

could have been dealt with for the contravention if:

(i) the community service order had not been made or the

bond had not been entered into; and

(ii) the person was before the court under section 70NFB in

respect of the contravention.

(4) In dealing with the person as mentioned in paragraph (3)(b), the

court must, in addition to any other matters that it considers should

be taken into account, take into account:

(a) the fact that the community service order was made or the

bond was entered into; and

(b) anything done under the community service order or pursuant

to the bond; and

of the contravention.

Compliance regime Schedule 2

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 55

70NFG Sentences of imprisonment

(1) A sentence of imprisonment imposed on a person under paragraph

70NFB(2)(e) is to be expressed to be:

(a) for a specified period of 12 months or less; or

(b) for a period ending when the person:

(i) complies with the order concerned; or

(ii) has been imprisoned under the sentence for 12 months

or such lesser period as is specified by the court;

whichever happens first.

(2) A court must not sentence a person to imprisonment under

paragraph 70NFB(2)(e) unless the court is satisfied that, in all the

circumstances of the case, it would not be appropriate for the court

to deal with the contravention under any of the other paragraphs of

subsection 70NFB(2).

(3) If a court sentences a person to imprisonment under paragraph

70NFB(2)(e), the court must:

(a) state the reasons why it is satisfied as mentioned in

subsection (2); and

(b) cause those reasons to be entered in the records of the court.

(4) The failure of a court to comply with subsection (3) does not

invalidate a sentence.

(5) A court that sentences a person to imprisonment under paragraph

70NFB(2)(e) may:

(a) suspend the sentence upon the terms and conditions

determined by the court; and

(b) terminate a suspension made under paragraph (a).

(6) A court, when sentencing a person to imprisonment under

paragraph 70NFB(2)(e), may, if it considers it appropriate to do so,

direct that the person be released upon the person entering into a

bond described in subsection (7) after he or she has served a

specified part of the term of imprisonment.

(7) A bond for the purposes of subsection (6) is a bond (with or

without surety or security) that the person will be of good

behaviour for a specified period of up to 2 years.

Schedule 2 Compliance regime

Part 1 Amendments

56 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(8) A court that has sentenced a person to imprisonment for a period

expressed as provided by paragraph (1)(b) may order the release of

the person if it is satisfied that the person will, if he or she is

released, comply with the order concerned.

(9) To avoid doubt, the serving by a person of a period of

imprisonment under a sentence imposed on the person under

paragraph 70NFB(2)(e) for failure to make a payment under a child

maintenance order does not affect the person's liability to make the

payment.

70NFH Relationship between Subdivision and other laws

(1) This section applies where an act or omission by a person:

(a) constitutes a contravention of an order under this Act

affecting children; and

(b) is also an offence against any law.

(2) If the person is prosecuted in respect of the offence, a court in

which proceedings have been brought under section 70NFB in

respect of the contravention of the order must:

(a) adjourn those proceedings until the prosecution has been

completed; or

(b) dismiss those proceedings.

(3) The person may be prosecuted for, and convicted of, the offence.

(4) Nothing in this section renders the person liable to be punished

twice in respect of the same act or omission.

70NFI Arrangements with States and Territories for carrying out of

sentences and orders

An arrangement made under section 112AN for or in relation to the

carrying out of sentences imposed, or orders made, under

Division 2 of Part XIIIA is taken to extend to the carrying out of

sentences imposed, or orders made, under this Subdivision.

70NFJ Subdivision does not limit operation of section 105

Nothing in this Subdivision is intended to limit the operation of

section 105.

Compliance regime Schedule 2

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 57

7 Subsection 117(1)

After "subsection (2)", insert ", subsection 70NFB(1)".

Schedule 2 Compliance regime

Part 2 Application of amendments and savings

58 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Part 2--Application of amendments and savings

8 Definitions

In this Part:

commencement means the commencement of this Schedule.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

9 Application

The amendments made by this Schedule apply to a contravention or

alleged contravention of a parenting order, if the contravention occurs,

or the alleged contravention is alleged to occur, on or after

commencement.

10 Saving of regulations

Despite the repeal of a provision of the old Act specified in the

following table, regulations that:

(a) were made for the purposes of that provision of the old Act;

and

(b) were in force immediately before commencement;

continue to have effect on and after commencement as if those

regulations had been made for the purposes of the corresponding

provision of the new Act that is specified in the table in relation to that

provision of the old Act:

Saving regulations made under provisions of old Act

Item

Provision of old Act

Corresponding provision of new

Act

paragraph 70NK(2A)(c)

paragraph 70NFC(3)(c)

subsection 70NK(3)

subsection 70NFC(4)

3 definition

maximum

period in subsection

70NK(5)

definition of maximum period in

subsection 70NFC(6)

Amendments relating to the conduct of child-related proceedings Schedule 3

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 59

Schedule 3--Amendments relating to the

conduct of child-related proceedings

Part 1--Amendments

Evidence Act 1995

1 At the end of subsection 190(1)

Add:

Note:

Matters related to evidence in child-related proceedings (within the

meaning of section 69ZM of the Family Law Act 1975) are dealt with

by that Act.

Family Law Act 1975

2 Subsection 4(1)

Insert:

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

3 Section 60C (after table item 12)

Insert:

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

4 After Division 12 of Part VII

Insert:

Schedule 3 Amendments relating to the conduct of child-related proceedings

Part 1 Amendments

60 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Division 12A--Principles for conducting child-related

proceedings

Subdivision A--Proceedings to which this Division applies

69ZM Proceedings to which this Division applies

(1) This Division applies to proceedings that are wholly under this

Part.

(2) This Division also applies to proceedings that are partly under this

Part:

(a) to the extent that they are proceedings under this Part; and

(b) if the parties to the proceedings consent--to the extent that

they are not proceedings under this Part.

(3) This Division also applies to any other proceedings between the

parties that involve the court exercising jurisdiction under this Act

and that arise from the breakdown of the parties' marital

relationship, if the parties to the proceedings consent.

(4) Proceedings to which this Division applies are child-related

proceedings.

(5) Consent given for the purposes of paragraph (2)(b) or

subsection (3) must be:

(a) free from coercion; and

(b) given in the form prescribed by the applicable Rules of

Court.

(6) A party to proceedings may, with the leave of the court, revoke a

consent given for the purposes of paragraph (2)(b) or

subsection (3).

Subdivision B--Principles for conducting child-related

proceedings

69ZN Principles for conducting child-related proceedings

Application of the principles

(1) The court must give effect to the principles in this section:

Amendments relating to the conduct of child-related proceedings Schedule 3

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 61

(a) in performing duties and exercising powers (whether under

this Division or otherwise) in relation to child-related

proceedings; and

(b) in making other decisions about the conduct of child-related

proceedings.

Failure to do so does not invalidate the proceedings or any order

made in them.

(2) Regard is to be had to the principles in interpreting this Division.

Principle 1

(3) The first principle is that the court is to consider the needs of the

child concerned and the impact that the conduct of the proceedings

may have on the child in determining the conduct of the

proceedings.

Principle 2

(4) The second principle is that the court is to actively direct, control

and manage the conduct of the proceedings.

Principle 3

(5) The third principle is that the proceedings are to be conducted in a

way that will safeguard:

(a) the child concerned against family violence, child abuse and

child neglect; and

(b) the parties to the proceedings against family violence.

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible,

to be conducted in a way that will promote cooperative and

child-focused parenting by the parties.

Principle 5

(7) The fifth principle is that the proceedings are to be conducted

without undue delay and with as little formality, and legal

technicality and form, as possible.

Schedule 3 Amendments relating to the conduct of child-related proceedings

Part 1 Amendments

62 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

69ZO This Division also applies to proceedings in Chambers

A judge, Judicial Registrar, Registrar, Federal Magistrate or

magistrate, who is hearing child-related proceedings in Chambers,

has all of the duties and powers that a court has under this

Division.

Note:

An order made in Chambers has the same effect as an order made in

open court.

69ZP Powers under this Division may be exercised on court's own

initiative

The court may exercise a power under this Division:

(a) on the court's own initiative; or

(b) at the request of one or more of the parties to the

proceedings.

Subdivision C--Duties and powers related to giving effect to

the principles

69ZQ General duties

(1) In giving effect to the principles in section 69ZN, the court must:

(a) decide which of the issues in the proceedings require full

investigation and hearing and which may be disposed of

summarily; and

(b) decide the order in which the issues are to be decided; and

are to be taken in the proceedings; and

(d) in deciding whether a particular step is to be taken--consider

whether the likely benefits of taking the step justify the costs

of taking it; and

(e) make appropriate use of technology; and

(f) if the court considers it appropriate--encourage the parties to

use family dispute resolution or family counselling; and

(g) deal with as many aspects of the matter as it can on a single

occasion; and

(h) deal with the matter, where appropriate, without requiring the

parties' physical attendance at court.

(2) Subsection (1) does not limit subsection 69ZN(1).

Amendments relating to the conduct of child-related proceedings Schedule 3

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 63

(3) A failure to comply with subsection (1) does not invalidate an

order.

69ZR Power to make determinations, findings and orders at any

stage of proceedings

(1) If, at any time after the commencement of child-related

proceedings and before making final orders, the court considers

that it may assist in the determination of the dispute between the

parties, the court may do any or all of the following:

(a) make a finding of fact in relation to the proceedings;

(b) determine a matter arising out of the proceedings;

proceedings.

Note:

For example, the court may choose to use this power if the court

considers that making a finding of fact at a particular point in the

proceedings will help to focus the proceedings.

(2) Subsection (1) does not prevent the court doing something

mentioned in paragraph (1)(a), (b) or (c) at the same time as

making final orders.

(3) To avoid doubt, a judge, Judicial Registrar, Registrar, Federal

Magistrate or magistrate who exercises a power under

subsection (1) in relation to proceedings is not, merely because of

having exercised the power, required to disqualify himself or

herself from a further hearing of the proceedings.

69ZS Use of family consultants

At any time during child-related proceedings, the court may

designate a family consultant as the family consultant in relation to

the proceedings.

Note 1:

Family consultants have the functions described in section 11A. These

include assisting and advising people involved in proceedings, and

this assistance and advice may involve helping people to better

understand the effect of things on the child concerned. Family

consultants can also inform people about other services available to

help them.

Note 2:

The court may also order parties to proceedings to attend

appointments with a family consultant. See section 11F.

Schedule 3 Amendments relating to the conduct of child-related proceedings

Part 1 Amendments

64 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Subdivision D--Matters relating to evidence

69ZT Rules of evidence not to apply unless court decides

(1) These provisions of the Evidence Act 1995 do not apply to

child-related proceedings:

(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general

rules about giving evidence, examination in chief,

re-examination and cross-examination), other than

sections 26, 30, 36 and 41;

Note:

Section 26 is about the court's control over questioning of

witnesses. Section 30 is about interpreters. Section 36 relates to

examination of a person without subpoena or other process.

Section 41 is about improper questions.

(b) Parts 2.2 and 2.3 (which deal with documents and other

evidence including demonstrations, experiments and

inspections);

admissions, evidence of judgments and convictions, tendency

and coincidence, credibility and character).

(2) The court may give such weight (if any) as it thinks fit to evidence

admitted as a consequence of a provision of the Evidence Act 1995

not applying because of subsection (1).

(3) Despite subsection (1), the court may decide to apply one or more

of the provisions of a Division or Part mentioned in that subsection

to an issue in the proceedings, if:

(a) the court is satisfied that the circumstances are exceptional;

and

(b) the court has taken into account (in addition to any other

matters the court thinks relevant):

(i) the importance of the evidence in the proceedings; and

(ii) the nature of the subject matter of the proceedings; and

(iii) the probative value of the evidence; and

(iv) the powers of the court (if any) to adjourn the hearing,

to make another order or to give a direction in relation

to the evidence.

(4) If the court decides to apply a provision of a Division or Part

mentioned in subsection (1) to an issue in the proceedings, the

Amendments relating to the conduct of child-related proceedings Schedule 3

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 65

court may give such weight (if any) as it thinks fit to evidence

admitted as a consequence of the provision applying.

(5) Subsection (1) does not revive the operation of:

(a) a rule of common law; or

(b) a law of a State or a Territory;

that, but for subsection (1), would have been prevented from

operating because of a provision of a Division or Part mentioned in

that subsection.

69ZU Evidence of family consultants

The court must not, without the consent of the parties to the

proceedings, take into account an opinion expressed by a family

consultant, unless the consultant gave the opinion as sworn

evidence.

69ZV Evidence of children

(1) This section applies if the court applies the law against hearsay

under subsection 69ZT(2) to child-related proceedings.

(2) Evidence of a representation made by a child about a matter that is

relevant to the welfare of the child or another child, which would

not otherwise be admissible as evidence because of the law against

hearsay, is not inadmissible in the proceedings solely because of

the law against hearsay.

(3) The court may give such weight (if any) as it thinks fit to evidence

admitted under subsection (2).

(4) This section applies despite any other Act or rule of law.

(5) In this section:

child means a person under 18.

representation includes an express or implied representation,

whether oral or in writing, and a representation inferred from

conduct.

Schedule 3 Amendments relating to the conduct of child-related proceedings

Part 1 Amendments

66 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

69ZW Evidence relating to child abuse or family violence

(1) The court may make an order in child-related proceedings

requiring a prescribed State or Territory agency to provide the

court with the documents or information specified in the order.

(2) The documents or information specified in the order must be

documents recording, or information about, one or more of these:

(a) any notifications to the agency of suspected abuse of a child

to whom the proceedings relate or of suspected family

violence affecting the child;

(b) any assessments by the agency of investigations into a

notification of that kind or the findings or outcomes of those

investigations;

investigating a notification.

(3) Nothing in the order is to be taken to require the agency to provide

the court with:

(a) documents or information not in the possession or control of

the agency; or

(b) documents or information that include the identity of the

person who made a notification.

(4) A law of a State or Territory has no effect to the extent that it

would, apart from this subsection, hinder or prevent an agency

complying with the order.

(5) The court must admit into evidence any documents or information,

provided in response to the order, on which the court intends to

rely.

(6) Despite subsection (5), the court must not disclose the identity of

the person who made a notification, or information that could

identify that person, unless:

(a) the person consents to the disclosure; or

(b) the court is satisfied that the identity or information is

critically important to the proceedings and that failure to

make the disclosure would prejudice the proper

administration of justice.

Amendments relating to the conduct of child-related proceedings Schedule 3

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 67

(7) Before making a disclosure for the reasons in paragraph (6)(b), the

court must ensure that the agency that provided the identity or

information:

(a) is notified about the intended disclosure; and

(b) is given an opportunity to respond.

69ZX Court's general duties and powers relating to evidence

(1) In giving effect to the principles in section 69ZN, the court may:

(a) give directions or make orders about the matters in relation to

which the parties are to present evidence; and

(b) give directions or make orders about who is to give evidence

in relation to each remaining issue; and

is to be given; and

(d) if the court considers that expert evidence is required--give

directions or make orders about:

(i) the matters in relation to which an expert is to provide

evidence; and

(ii) the number of experts who may provide evidence in

relation to a matter; and

(iii) how an expert is to provide the expert's evidence; and

(e) ask questions of, and seek evidence or the production of

documents or other things from, parties, witnesses and

experts on matters relevant to the proceedings.

(2) Without limiting subsection (1) or section 69ZR, the court may

give directions or make orders:

(a) about the use of written submissions; or

(b) about the length of written submissions; or

(d) limiting the time for the giving of evidence; or

(e) that particular evidence is to be given orally; or

(f) that particular evidence is to be given by affidavit; or

(g) that evidence in relation to a particular matter not be

presented by a party; or

(h) that evidence of a particular kind not be presented by a party;

Schedule 3 Amendments relating to the conduct of child-related proceedings

Part 1 Amendments

68 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(i) limiting, or not allowing, cross-examination of a particular

witness; or

(j) limiting the number of witnesses who are to give evidence in

the proceedings.

(3) The court may, in child-related proceedings:

(a) receive into evidence the transcript of evidence in any other

proceedings before:

(i) the court; or

(ii) another court; or

(iii)

tribunal;

and draw any conclusions of fact from that transcript that it

thinks proper; and

(b) adopt any recommendation, finding, decision or judgment of

any court, person or body of a kind mentioned in any of

subparagraphs (a)(i) to (iii).

Note:

This subsection may be particularly relevant for Aboriginal or Torres

Strait Islander children.

5 Section 100A

Repeal the section.

6 At the end of section 102A

Add:

Note:

Section 69ZV is relevant to evidence of a representation by a child, if

the admissibility of the evidence would otherwise be affected by the

law against hearsay.

7 Part XI (heading)

Repeal the heading, substitute:

Part XI--Procedure and evidence

Note:

Division 12A of Part VII has provisions about procedure and evidence that apply to

child-related proceedings (within the meaning of Part VII).

Amendments relating to the conduct of child-related proceedings Schedule 3

Application of amendments Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 69

Part 2--Application of amendments

8 Application of amendments

The amendments made by Part 1 of this Schedule apply to proceedings

commenced by an application filed on or after 1 July 2006.

Schedule 4 Changes to dispute resolution

Part 1 Changes to approval of organisations

70 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 4--Changes to dispute resolution

Part 1--Changes to approval of organisations

Family Law Act 1975

1 Subsection 4(1) (definition of voluntary organization)

Repeal the definition.

2 Subsection 13A(1)

Repeal the subsection.

3 Subsection 13A(2)

Omit "the organisation" (first occurring), substitute "an organisation".

4 Paragraph 13A2(b)

Repeal the paragraph, substitute:

(b) the organisation's activities include, or will include, family

and child counselling.

5 Subsection 13B(1)

Repeal the subsection.

6 Subsection 13B(2)

Omit "the organisation" (first occurring), substitute "an organisation".

7 Paragraph 13B(2)(b)

Repeal the paragraph, substitute:

(b) the organisation's activities include, or will include, family

and child mediation.

Changes to dispute resolution Schedule 4

Protection of names Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 71

Part 2--Protection of names

Family Law Act 1975

8 After Part I

Insert:

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;

(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

manufactured, produced, sold, offered for sale or let for hire;

(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

Schedule 4 Changes to dispute resolution

Part 2 Protection of names

72 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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.

Changes to dispute resolution Schedule 4

Changes to dispute resolution Part 3

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 73

Part 3--Changes to dispute resolution

Family Law Act 1975

9 Subsection 4(1)

Insert:

abuse, in relation to a child, means:

(a) an assault, including a sexual assault, of the child which is an

offence under a law, written or unwritten, in force in the State

or Territory in which the act constituting the assault occurs;

(b) a person involving the child in a sexual activity with that

person or another person in which the child is used, directly

or indirectly, as a sexual object by the first-mentioned person

or the other person, and where there is unequal power in the

relationship between the child and the first-mentioned

person.

10 Subsection 4(1)

Insert:

Accreditation Rules means regulations made under section 10A.

11 Subsection 4(1) (definition of approved counselling

organisation)

Repeal the definition.

12 Subsection 4(1) (definition of approved mediation

organisation)

Repeal the definition.

13 Subsection 4(1)

Insert:

arbitration has the meaning given by section 10L.

14 Subsection 4(1) (definition of arbitrator)

Schedule 4 Changes to dispute resolution

Part 3 Changes to dispute resolution

74 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Repeal the definition, substitute:

arbitrator has the meaning given by section 10M.

15 Subsection 4(1) (definition of child counselling)

Repeal the definition.

16 Subsection 4(1) (definition of community mediator)

Repeal the definition.

17 Subsection 4(1) (definition of court counsellor)

Repeal the definition.

18 Subsection 4(1) (definition of court mediator)

Repeal the definition.

19 Subsection 4(1) (definition of family and child counselling)

Repeal the definition.

20 Subsection 4(1) (definition of family and child counsellor)

Repeal the definition.

21 Subsection 4(1) (definition of family and child mediation)

Repeal the definition.

22 Subsection 4(1) (definition of family and child mediator)

Repeal the definition.

23 Subsection 4(1)

Insert:

family consultant has the meaning given by section 11B.

24 Subsection 4(1)

Insert:

family counselling has the meaning given by section 10B.

25 Subsection 4(1)

Insert:

Changes to dispute resolution Schedule 4

Changes to dispute resolution Part 3

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 75

family counsellor has the meaning given by section 10C.

26 Subsection 4(1)

Insert:

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

27 Subsection 4(1)

Insert:

family dispute resolution practitioner has the meaning given by

section 10G.

28 Subsection 4(1) (definition of marriage counselling)

Repeal the definition.

29 Subsection 4(1)

Insert:

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

in section 65LB.

30 Subsection 4(1) (definition of private arbitration)

Repeal the definition.

31 Subsection 4(1) (definition of private mediator)

Repeal the definition.

32 Subsection 4(1)

Insert:

relevant property or financial arbitration has the meaning given

by subsection 10L(2).

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33 Subsection 4(1)

Insert:

section 13E arbitration has the meaning given by subsection

10L(2).

34 Subsection 4(1) (definition of welfare officer)

Repeal the definition.

35 After subsection 4(1)

Insert:

(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

proceedings.

36 Parts II and III

Repeal the Parts, substitute:

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

by regulations made for the purposes of this paragraph.

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(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

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:

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(i) personal and interpersonal issues;

(ii) issues relating to the care of children.

10C Definition of family counsellor

(1)

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;

engaged under subsection 38R(1A), as a family counsellor;

(d) a person who is authorised to act under section 93D of the

Federal Magistrates Act 1999, or engaged under subsection

115(1A) of that Act, as a family counsellor; or

(e) a person who is authorised by a Family Court of a State to act

as a family counsellor.

(2) The Minister must publish, at least annually, a list of organisations

designated for the purposes of paragraph (b) of the definition of

family counsellor.

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

10D Confidentiality of communications in family counselling

(1) A family counsellor must not disclose a communication made to

the counsellor while the counsellor is conducting family

counselling, unless the disclosure is required or authorised by this

section.

(2) A family counsellor must disclose a communication if the

counsellor reasonably believes the disclosure is necessary for the

purpose of complying with a law of the Commonwealth, a State or

a Territory.

(3) A family counsellor may disclose a communication if consent to

the disclosure is given by:

(a) if the person who made the communication is 18 or over--

that person; or

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(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)

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

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.

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(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:

(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.

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Division 3--Family dispute resolution

10F Definition of family dispute resolution

Family dispute resolution is a process (other than a judicial

process):

(a) in which a family dispute resolution practitioner helps people

affected, or likely to be affected, by separation or divorce to

resolve some or all of their disputes with each other; and

(b) in which the practitioner is independent of all of the parties

involved in the process.

10G Definition of family dispute resolution practitioner

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;

engaged under subsection 38R(1A), as a family dispute

resolution practitioner; or

(d) a person who is authorised to act under section 93D of the

Federal Magistrates Act 1999, or engaged under subsection

115(1A) of that Act, as a family dispute resolution

practitioner; or

(e) a person who is authorised by a Family Court of a State to act

as a family dispute resolution practitioner.

(2) The Minister must publish, at least annually, a list of organisations

designated for the purposes of paragraph (b) of the definition of

family dispute resolution practitioner.

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

10H Confidentiality of communications in family dispute resolution

(1) A family dispute resolution practitioner must not disclose a

communication made to the practitioner while the practitioner is

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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)

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

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.

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(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:

(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.

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(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 carried out as a result of an order made under

section 13E; or

(b)

relevant property or financial arbitration--which is

arbitration (other than section 13E arbitration) of:

(i) Part VIII proceedings, Part VIIIA proceedings,

Part VIIIB proceedings or section 106A proceedings; or

(ii) any part of such proceedings; or

(iii) any matter arising in such proceedings; or

(iv) a dispute about a matter with respect to which such

proceedings could be instituted.

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10M Definition of arbitrator

arbitrator is a person who meets the requirements prescribed in

the regulations to be an arbitrator.

10N Arbitrators may charge fees for their services

(1) An arbitrator conducting arbitration may charge the parties to the

arbitration fees for conducting it.

(2) The arbitrator must give written information about those fees to the

parties before the arbitration starts.

Note:

There may be Rules of Court or regulations relating to the costs of

arbitration and how they are assessed or taxed (see paragraphs

123(1)(se) and 125(1)(bc)).

10P Immunity of arbitrators

An arbitrator has, in performing his or her functions as an

arbitrator, the same protection and immunity as a Judge of the

Family Court has in performing the functions of a Judge.

Note:

Communications with arbitrators are not confidential, and may be

admissible in court.

Part III--Family consultants

Division 1--About family consultants

11A Functions of family consultants

The functions of family consultants are to provide services in

relation to proceedings under this Act, including:

(a) assisting and advising people involved in the proceedings;

and

(b) assisting and advising courts, and giving evidence, in relation

to the proceedings; and

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

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and services to which the court can refer the parties to the

proceedings.

Note:

See subsection 4(1AA) for people who are taken to be involved in

proceedings.

11B Definition of family consultant

A family consultant is a person who is:

(a) appointed as a family consultant under section 38N; or

(b) appointed as a family consultant in relation to the Federal

Magistrates Court under the Federal Magistrates Act 1999;

(d) appointed under a law of a State as a family consultant in

relation to a Family Court of that State.

Note:

The Chief Executive Officers of the Family Court and the Federal

Magistrates Court have all of the functions and powers of family

consultants, and may direct consultants in the performance of their

functions. See Division 1A of Part IVA of this Act and Division 1A of

Part 7 of the Federal Magistrates Act 1999.

11C Admissibility of communications with family consultants and

referrals from family consultants

(1) Evidence of anything said, or any admission made, by or in the

company of:

(a) a family consultant performing the functions of a family

consultant; or

(b) a person (the professional) to whom a family consultant

refers a person for medical or other professional consultation,

while the professional is carrying out professional services

for the person;

is admissible in proceedings under this Act.

Note 1:

Communications with family consultants are not confidential (except

in the special circumstances set out in subsection 38BD(3) in relation

to consultants having several roles).

Note 2:

Subsection (1) does not prevent things said or admissions made by or

in the company of family consultants from being admissible in

proceedings other than proceedings under this Act.

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(2) Subsection (1) does not apply to a thing said or an admission made

by a person who, at the time of saying the thing or making the

admission, had not been informed of the effect of subsection (1).

(3) Despite subsection (2), a thing said or admission made is

admissible even if the person who said the thing or made the

admission had not been informed of the effect of subsection (1), if:

(a) it is an admission by an adult that indicates that a child under

18 has been abused or is at risk of abuse; or

(b) it is a disclosure by a child under 18 that indicates that the

child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of

the admission or disclosure available to the court from other

sources.

11D Immunity of family consultants

A family consultant has, in performing his or her functions as a

family consultant, the same protection and immunity as a Judge of

the Family Court has in performing the functions of a Judge.

Division 2--Courts' use of family consultants

11E Courts to consider seeking advice from family consultants

(1) If, under this Act, a court has the power to:

(a) order a person to attend family counselling or family dispute

resolution; or

(b) order a person to participate in a course, program or other

service (other than arbitration); or

consultant; or

(d) advise or inform a person about family counselling, family

dispute resolution or other courses, programs or services;

the court:

(e) may, before exercising the power, seek the advice of:

(i) if the court is the Family Court or the Federal

Magistrates Court--a family consultant nominated by

the Chief Executive Officer of that court; or

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(ii) if the court is the Family Court of a State--a family

consultant of that court; or

(iii) if the court is not mentioned in subparagraph (i) or

(ii)--an appropriately qualified person (whether or not

an officer of the court);

as to the services appropriate to the needs of the person and

the most appropriate provider of those services; and

(f) must, before exercising the power, consider seeking that

advice.

(2) If the court seeks advice under subsection (1), the court must

inform the person in relation to whom the advice is sought:

(a) whom the court is seeking advice from; and

(b) the nature of the advice the court is seeking.

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

consultant

(1) A court exercising jurisdiction in proceedings under this Act may

order one or more parties to the proceedings to attend an

appointment (or a series of appointments) with a family consultant.

Note:

Before exercising this power, the court must consider seeking the

advice of a family consultant about the services appropriate to the

parties' needs (see section 11E).

(2) When making an order under subsection (1), the court must inform

the parties of the effect of section 11G (consequences of failure to

comply with order).

(3) The court may make orders under this section:

(a) on its own initiative; or

(b) on the application of:

(i) a party to the proceedings; or

(ii) a lawyer independently representing a child's interests

under an order made under section 68L.

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

(1) If a person who is ordered to attend an appointment with a family

consultant under section 11F fails to comply with:

(a) the order made by the court; or

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(b) any instruction the consultant gives to the person;

the consultant must report the failure to the court.

(2) On receiving the report, the court may make any further orders it

considers appropriate.

(3) The court may make orders under subsection (2):

(a) on its own initiative; or

(b) on the application of:

(i) a party to the proceedings; or

(ii) a lawyer independently representing a child's interests

under an order made under section 68L.

Part 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

(1) 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

separation or divorce are informed about ways of resolving

disputes other than by applying for orders under this Act.

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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

(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.

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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:

Section 63DA also imposes information-giving obligations on legal

practitioners dealing with people involved in Part VII proceedings.

(4) A legal practitioner does not have to comply with subsection (1),

(2) or (3) if the practitioner has reasonable grounds to believe that

the person has already been given documents containing the

prescribed information mentioned in that subsection.

(5) A legal practitioner does not have to comply with subsection (2) if

the practitioner considers that there is no reasonable possibility of a

reconciliation between the parties to the marriage.

12F Obligations on principal executive officers of courts

Obligation to give prescribed information

(1) The principal executive officer of a court that has jurisdiction

under this Act must ensure that any person who is considering

instituting proceedings under this Act is, on the first occasion the

person deals with a registry of the court, given documents

containing the information prescribed under:

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(a) section 12B (about non-court based family services and

court's processes and services); and

(b) section 12C (about reconciliation).

Obligation to respond to requests for information

(2) The principal executive officer of a court that has jurisdiction

under this Act must ensure that, if a person involved in proceedings

under this Act requests an officer or staff member of the court for

information about family counselling services or family dispute

resolution services, the person is given documents containing

information about those services.

Note:

See subsection 4(1AA) for people who are taken to be involved in

proceedings.

12G Obligations on family counsellors, family dispute resolution

practitioners and arbitrators

(1) A family counsellor, family dispute resolution practitioner or

arbitrator who deals with a married person considering instituting:

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

(b) financial or Part VII proceedings in relation to the marriage;

must give the married person (and in appropriate cases, that

person's spouse) documents containing the information prescribed

under 12C (about reconciliation).

Note:

Section 63DA also imposes information-giving obligations on family

counsellors and family dispute resolution practitioners (not arbitrators)

dealing with people involved in Part VII proceedings.

(2) A family counsellor, family dispute resolution practitioner or

arbitrator does not have to comply with subsection (1), if he or she:

(a) has reasonable grounds to believe that the person has already

been given documents containing the prescribed information

(b) considers that there is no reasonable possibility of a

reconciliation between the parties to the marriage.

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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

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;

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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;

in an appropriate course, program or other service.

Note 1:

Before making an order under this section, the court must consider

seeking the advice of a family consultant about the services

appropriate to the parties' needs (see section 11E).

Note 2:

The court can also order parties to attend appointments with a family

consultant (see section 11F).

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 95

(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.

Schedule 4 Changes to dispute resolution

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96 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Division 4--Court's role in relation to arbitration of

disputes

13E Court may refer Part VIII proceedings to arbitration

(1) With the consent of all of the parties to the proceedings, a court

exercising jurisdiction in Part VIII proceedings may make an order

referring the proceedings, or any part of them, or any matter arising

in them, to an arbitrator for arbitration.

(2) If the court makes an order under subsection (1), it may, if

necessary, adjourn the proceedings and may make any additional

orders as it thinks appropriate to facilitate the effective conduct of

the arbitration.

13F Court may make orders to facilitate arbitration of certain

disputes

A court that has jurisdiction under this Act may, on application by

a party to relevant property or financial arbitration, make orders the

court thinks appropriate to facilitate the effective conduct of the

arbitration.

13G Family Court and Federal Magistrates Court may determine

questions of law referred by arbitrator

(1) An arbitrator of section 13E arbitration or relevant property or

financial arbitration may, at any time before making an award in

the arbitration, refer a question of law arising in relation to the

arbitration for determination by:

(a) a single judge of the Family Court; or

(b) a single judge of the Family Court of a State; or

(2) The arbitrator may do so:

(a) on his or her own initiative; or

(b) at the request of one or more of the parties to the arbitration

if the arbitrator considers it appropriate to do so.

(3) The arbitrator must not make an award in the arbitration before the

judge or Federal Magistrates Court has either:

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 97

(a) determined the question of law; or

(b) remitted the matter to the arbitrator having found that no

question of law arises.

13H Awards made in arbitration may be registered in court

(1) A party to an award made in section 13E arbitration or in relevant

property or financial arbitration may register the award:

(a) in the case of section 13E arbitration--in the court that

ordered the arbitration; or

(b) otherwise--in a court that has jurisdiction under this Act.

(2) An award registered under subsection (1) has effect as if it were a

decree made by that court.

13J Family Court or Federal Magistrates Court can review

registered awards

(1) A party to a registered award made in section 13E arbitration or

relevant property or financial arbitration may apply for review of

the award, on questions of law, by:

(a) a single judge of the Family Court; or

(b) a single judge of the Family Court of a State; or

Note:

There may be Rules of Court providing for when, and how, an

application for review of the award can be made (see paragraph

123(1)(sf)).

(2) On a review of an award under this section, the judge or Federal

Magistrates Court may:

(a) determine all questions of law arising in relation to the

arbitration; and

(b) make such decrees as the judge or Federal Magistrates Court

thinks appropriate, including a decree affirming, reversing or

varying the award.

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98 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

13K Family Court and Federal Magistrates Court may set aside

registered awards

(1) If an award made in section 13E arbitration or relevant property or

financial arbitration, or an agreement made as a result of such

arbitration, is registered in:

(a) the Family Court; or

(b) the Federal Magistrates Court; or

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

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.

37 Subsection 26B(1)

Omit "19G", substitute "13K".

38 Subsection 37(2)

Omit "(other than the court counsellors)".

39 At the end of section 37

Add:

(3) Despite subsection (2), the Principal Registrar must not give

directions that relate to an officer's functions as a family

consultant, family counsellor or family dispute resolution

practitioner.

40 Paragraph 37A(1)(e)

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Changes to dispute resolution Part 3

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 99

Repeal the paragraph, substitute:

(e) the power to make orders under:

(i) sections 11F and 11G; and

(ii) sections 13C and 13D; and

(iii) subsection 65LA(1); and

(iv)

paragraph

70NEB(1)(a);

(ea) the power to direct a family consultant to give a report under

section 62G;

41 Paragraph 37A(2)(e)

Omit "19G", substitute "13K".

42 After Division 1 of Part IVA

Insert:

Division 1A--Administration of Court's family services

38BA Chief Executive Officer has functions of family consultants

(1) The Chief Executive Officer has all of the functions conferred on

family consultants by section 11A, and any associated powers and

duties.

(2) Without limiting subsection (1), sections 11C (admissibility of

communications with family consultants) and 11D (immunity of

family consultants) apply to the Chief Executive Officer while the

Chief Executive Officer is performing those functions.

(3) The Chief Executive Officer is responsible for administering the

functions of family consultants.

38BB Chief Executive Officer may delegate powers and functions

that relate to family consultants

(1) The Chief Executive Officer may, in writing, delegate to a family

consultant any of the Chief Executive Officer's powers, functions

and duties in relation to the functions of family consultants

mentioned in section 11A.

(2) A delegate is, in the exercise of a delegated power, function or

duty, subject to the directions of the Chief Executive Officer.

Schedule 4 Changes to dispute resolution

Part 3 Changes to dispute resolution

100 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

38BC Chief Executive Officer may give directions that relate to

family services functions

The Chief Executive Officer may give directions that relate to:

(a) a Court officer's functions as a family consultant; or

(b) a Court officer's or staff member's functions as a family

counsellor or family dispute resolution practitioner.

38BD Chief Executive Officer may authorise officer or staff member

to act as family counsellor or family dispute resolution

practitioner

(1) The Chief Executive Officer may authorise an officer or staff

member of the Family Court to provide family counselling under

this Act.

(2) The Chief Executive Officer may authorise an officer or staff

member of the Family Court to provide family dispute resolution

under this Act.

(3) If an officer who is a family consultant also becomes a family

counsellor, or family dispute resolution practitioner, because of an

authorisation under this section:

(a) section 11C (admissibility of communications with family

consultants) does not apply to the officer at any time while

the officer is acting as a family counsellor or family dispute

resolution practitioner; and

(b) the officer must not perform the functions of a family

consultant in relation to particular proceedings, if the officer

has conducted family counselling or family dispute

resolution with a person involved in those proceedings.

43 Paragraphs 38N(1)(d), (da), (daa) and (db)

Repeal the paragraphs, substitute:

(d) such family consultants as are necessary;

44 After subsection 38R(1)

Insert:

(1A) The Chief Executive Officer may engage persons to perform:

(a) family counselling services under this Act; or

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 101

(b) family dispute resolution services under this Act.

45 Subsection 38R(2)

After "subsection (1)", insert "or (1A)".

46 Paragraph 41(4)(c)

Omit "counselling facilities", substitute "appropriate family counselling

and family dispute resolution services, and family consultants,".

47 Paragraph 44(1B)(a)

Repeal the paragraph, substitute:

(a) stating that the parties to the marriage have considered a

reconciliation with the assistance of a specified person, who

is:

(i) a family counsellor; or

(ii) if the court is the Family Court, the Federal Magistrates

Court or the Family Court of a State--an individual or

an organisation nominated for the parties by a family

consultant; or

(iii) if the court is not the Family Court, the Federal

Magistrates Court or the Family Court of a State--an

individual or an organisation nominated for the parties

by an appropriately qualified officer of the court; and

48 Subsection 55A(2)

Omit "a family and child counsellor or welfare officer", substitute "a

family consultant".

49 Section 60C (table item 3)

Repeal the table item, substitute:

Division 3--Reports relating to children under 18

preparation of reports for use in proceedings relating to

children under 18

50 Division 3 of Part VII (heading)

Repeal the heading, substitute:

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Part 3 Changes to dispute resolution

102 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Division 3--Reports relating to children under 18

51 Section 62A

Repeal the section, substitute:

62A What this Division does

This Division deals with the preparation of reports for use in

proceedings relating to children who are under 18.

52 Sections 62B, 62C, 62CA, 62D, 62E and 62F

Repeal the sections, substitute:

62B Court's obligation to inform people to whom Part VII orders

apply about family counselling, family dispute resolution

and other family services

If a court makes an order in proceedings under this Part, the court

must inform the parties to the proceedings about the family

counselling services, family dispute resolution services and other

courses, programs and services available to help the parties adjust

to the consequences of that order.

Note:

Before informing the parties, the court must consider seeking the

advice of a family consultant about the services appropriate to the

parties' needs (see section 11E).

53 Subsection 62G(2)

Omit "a family and child counsellor or welfare officer", substitute "a

family consultant".

Note:

The heading to section 62G is altered by omitting "family and child counsellors and

welfare officers" and substituting "family consultants".

54 Subsections 62G(4) and (5)

Repeal the subsections, substitute:

(4) The family consultant may include in the report, in addition to the

matters required to be included in it, any other matters that relate to

the care, welfare or development of the child.

(5) For the purposes of the preparation of the report, the court may

make any other orders, or give any other directions, that the court

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 103

considers appropriate (including orders or directions that a party to

proceedings, or the child, attend an appointment or a series of

appointments with a family consultant).

Note:

Before making orders under this section, the court must consider

seeking the advice of a family consultant about the services

appropriate to the parties' needs (see section 11E).

55 Subsection 62G(6)

Omit "counsellor or welfare officer", substitute "family consultant".

56 Section 62H

Repeal the section.

57 Subsection 65F(1)

Repeal the subsection.

58 Paragraph 65F(2)(a)

Omit "a conference with a family and child counsellor or a welfare

officer", substitute "family counselling".

59 Paragraph 65L(1)(a)

Omit "a family and child counsellor or a welfare officer", substitute "a

family consultant".

Note:

The heading to section 65L is altered by omitting "Counsellors" and substituting

"Family consultants".

60 Paragraph 65L(1)(b)

Omit "a family and child counsellor or a welfare officer", substitute "a

family consultant".

61 Subsection 65LA(1)

Repeal the subsection, substitute:

(1) In proceedings for a parenting order, the court may make an order

directing a party to the proceedings to attend a post-separation

parenting program.

Note:

Before making an order under this section, the court must consider

seeking the advice of a family consultant about the services

appropriate to the party's needs (see section 11E).

Schedule 4 Changes to dispute resolution

Part 3 Changes to dispute resolution

104 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

62 Subsection 65LA(3) (definition of post-separation

parenting program or program)

Repeal the definition.

63 Subsection 65LA(3) (definition of post-separation

parenting program provider or provider)

Repeal the definition.

64 After section 65LA

Insert:

65LB Conditions for providers of post-separation parenting

programs

(1) An organisation meets the conditions in this section if:

(a) it is a recipient organisation (see subsection (2)); or

(b) there is a recipient organisation in relation to the organisation

(see subsection (3)).

(2) An organisation is a recipient organisation for the purposes of

paragraph (1)(a) if it receives, or has been approved to receive,

funding under a program or a part of a program designated by the

Minister under subsection (4) in order to provide services that

include post-separation parenting programs.

(3) An organisation is a recipient organisation in relation to another

organisation for the purposes of paragraph (1)(b) if:

(a)

both:

(i) the other organisation is a member of the organisation;

and

(ii) the organisation receives, or has been approved to

receive, funding under a program or a part of a program

designated by the Minister under subsection (4) in order

that the organisation's members may provide services

that include post-separation parenting programs; or

(b)

both:

(i) the organisation acts on behalf of a group of

organisations that includes the other organisation; and

(ii) the organisation receives, or has been approved to

receive, funding under a program or a part of a program

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 105

designated by the Minister under subsection (4) in order

that the organisations on whose behalf it acts may

provide services that include post-separation parenting

programs.

(4) The Minister may, in writing, designate for the purposes this

section:

(a) a program; or

(b) part of a program;

administered by or on behalf of the Commonwealth Government

under which money appropriated by the Parliament is provided to

organisations for the purposes of making post-separation parenting

programs available.

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

65 Subsection 67ZA(1)

Repeal the subsection, substitute:

(1) This section applies to a person in the course of performing duties

or functions, or exercising powers, as:

(a) the Registrar or a Deputy Registrar of a Registry of the

Family Court of Australia; or

(b) the Registrar or a Deputy Registrar of the Family Court of

Western Australia; or

(d) a family consultant; or

(e) a family counsellor; or

(f) a family dispute resolution practitioner; or

(g) an arbitrator; or

(h) a lawyer independently representing a child's interests.

Note:

The heading to section 67ZA is altered by omitting "counsellor, mediator" and

substituting "family counsellor, family dispute resolution practitioner".

66 Subsection 102A(5) (paragraph (b) of the definition of

examined)

Omit "family and child counsellor or welfare officer", substitute

"family counsellor or family consultant".

67 Before subsection 111CV(1)

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Part 3 Changes to dispute resolution

106 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Insert:

(1A) This section covers:

(a) a court; and

(b) the Registrar or a Deputy Registrar of a Registry of the

Family Court of Australia; and

Family Court of a State; and

(d) a Registrar of the Federal Magistrates Court; and

(e) a family consultant; and

(f) a family counsellor; and

(g) a family dispute resolution practitioner; and

(h) an arbitrator; and

(i) the provider of a course, program or service which a person

is ordered to participate in under this Act.

68 Subsection 111CV(1)

Omit "A court must inform a competent authority of another country

about any information the court", substitute "A court or person covered

by this section must inform a competent authority of another country

about any information the court or person".

69 Subsection 111CV(5)

Repeal the subsection.

70 Subsection 115(2)

Omit "representatives of organisations that provide family and child

counselling", substitute "family counsellors, family dispute resolution

practitioners".

71 Paragraph 123(1)(j)

Repeal the paragraph, substitute:

(j) authorising an officer making an investigation mentioned in

paragraph (h) to:

(i) take evidence on oath or affirmation; and

(ii) receive in evidence a report from a family consultant

under section 55A or 62G; and

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 107

(iii) receive in evidence a report from a person who has had

dealings with a party to the matter under investigation

under section 65F, 65L, 65LA, 70NEB or 70NEG; and

(ja) enabling the summoning of witnesses before an officer

making an investigation mentioned in paragraph (h) for the

purposes of giving evidence or producing books or

documents; and

72 Paragraph 123(1)(s)

Repeal the paragraph, substitute:

(s) providing for and in relation to:

(i) the attendance at family counselling by parties to

proceedings under this Act; and

(ii) the attendance at family dispute resolution by parties to

proceedings under this Act; and

(iii) the giving of advice and assistance by family

consultants to people involved in proceedings under this

Act; and

(iv) the participation by parties to proceedings under this

Act in courses, programs and other services (other than

those mentioned in subparagraph (i), (ii) or (iii)) that the

parties are ordered by the court to participate in; and

(v) the use, for the purposes of proceedings under this Act,

by courts exercising jurisdiction under this Act and

officers of such courts, of reports about the future

conduct of the proceedings that have been prepared by

persons who dealt with the parties in accordance with

Rules of Court made under subparagraphs (i), (ii), (iii)

or (iv); and

73 Paragraph 123(1)(sa)

Omit "court mediators", substitute "family consultants".

74 Paragraph 123(1)(sb)

Omit "mediation or".

75 Paragraph 123(1)(sb)

Omit "section 19E", substitute "sections 13E and 13F".

76 Paragraph 123(1)(sc)

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Part 3 Changes to dispute resolution

108 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Omit "mediated or".

77 After paragraph 123(1)(sc)

Insert:

(sca) prescribing the disputes, proceedings or matters in relation to

which family consultants may, or must not, perform their

functions; and

78 Paragraph 123(1)(sd)

Repeal the paragraph, substitute:

(sd) providing for and in relation to:

(i) the functions to be performed by family consultants; and

(ii) the procedures to be followed in performing those

functions; and

(iii) the procedures to be followed by persons involved in

proceedings in relation to which a family consultant is

performing functions; and

(iv) the procedures to be followed when a family consultant

ceases performing functions in relation to a dispute,

proceeding or matter; and

(sda) providing for and in relation to:

(i) the procedures to be followed by a family counsellor

authorised under subsection 38BD(1) or engaged under

subsection 38R(1A); and

(ii) the procedures to be followed by persons attending

family counselling with such a counsellor; and

(iii) the procedures to be followed when family counselling

with such a counsellor ends; and

(sdb) providing for and in relation to:

(i) the procedures to be followed by a family dispute

resolution practitioner authorised under subsection

38BD(2) or engaged under subsection 38R(1A); and

(ii) the procedures to be followed by persons attending

family dispute resolution with such a practitioner; and

(iii) the procedures to be followed when family dispute

resolution with such a practitioner ends; and

(sdc) providing for and in relation to:

(i) the procedures to be followed by an arbitrator in relation

to a dispute, proceeding or matter under this Act; and

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 109

(ii) the attendance by persons at conferences conducted by

arbitrators for the purpose of arbitrating a dispute,

proceeding or matter under this Act; and

(iii) the procedure to be followed when arbitration ends,

both where it has resulted in an agreement or award and

where it has not; and

79 Paragraph 123(1)(se)

Repeal the paragraph, substitute:

(se) prescribing matters relating to the costs of arbitration by

arbitrators, and the assessment or taxation of those costs; and

(sea) prescribing matters relating to the costs of family counselling

by family counsellors authorised under subsection 38BD(1)

or engaged under subsection 38R(1A); and

(seb) prescribing matters relating to the costs of family dispute

resolution by family dispute resolution practitioners

authorised under subsection 38BD(2) or engaged under

subsection 38R(1A); and

80 Subparagraph 123(1)(sf)(i)

Omit "19D or 19E", substitute "13H".

81 Subparagraph 123(1)(sf)(ii)

Omit "19F", substitute "13J".

82 Subparagraph 123(1)(sf)(ii)

Omit "19G", substitute "13K".

83 Paragraph 125(1)(ba)

Repeal the paragraph, substitute:

(ba) providing for and in relation to the authorisation of:

(i) officers or staff members of the Family Court as family

counsellors under subsection 38BD(1); and

(ii) officers or staff members of the Family Court as family

dispute resolution practitioners under subsection

38BD(2); and

84 After paragraph 125(1)(bb)

Insert:

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Part 3 Changes to dispute resolution

110 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(bba) the registration of awards made in section 13E arbitration and

relevant property or financial arbitration; and

85 Paragraph 125(1)(bc)

Omit "(sc), (sd) or (se)", substitute "(sc), (sca), (sd), (sda), (sdb), (sdc),

(se), (sea) or (seb)".

86 Paragraph 125(1)(ca)

Repeal the paragraph, substitute:

(ca) prescribing fees payable for services provided by the Family

Court in circumstances other than where a court orders or

directs the provision of the services; and

Federal Magistrates Act 1999

87 Section 4

Omit "promote the use of primary dispute resolution", substitute

"promote the use of dispute resolution".

88 Section 5

Insert:

Accreditation Rules means regulations made under section 10A of

the Family Law Act 1975.

89 Section 5 (definition of Family and child counsellor)

Repeal the definition.

90 Section 5

Insert:

family consultant means a family consultant within the meaning of

the Family Law Act 1975.

91 Section 5 (definition of Welfare officer)

Repeal the definition.

92 Part 4 (heading)

Repeal the heading, substitute:

Changes to dispute resolution Schedule 4

Changes to dispute resolution Part 3

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 111

Part 4--Dispute resolution for proceedings other

than proceedings under the Family Law

Act 1975

93 Before section 21

Insert:

20A This Part does not apply to proceedings under the Family Law

Act 1975

This Part applies to proceedings in the Federal Magistrates Court

other than proceedings under the Family Law Act 1975.

Note 1:

For proceedings under the Family Law Act 1975, see in particular

Parts II, III, IIIA and IIIB of that Act, which contain provisions

dealing with family counselling, family dispute resolution and other

processes that apply to the Federal Magistrates Court in relation to

proceedings under that Act.

Note 2:

This Part (other than Division 2: see section 33) applies to

proceedings under the Child Support (Assessment) Act 1989 and the

Child Support (Registration and Collection) Act 1988.

94 Section 21 (definition of primary dispute resolution

processes)

Repeal the definition.

95 Section 21

Insert:

dispute resolution processes means procedures and services for the

resolution of disputes otherwise than by way of the exercise of the

judicial power of the Commonwealth, and includes:

(a)

counselling;

and

(b)

mediation;

and

(c)

arbitration;

and

(d) neutral evaluation; and

(e)

case

appraisal;

and

(f)

conciliation.

Note:

The heading to section 21 is altered by omitting "Primary dispute" and substituting

"Dispute".

Schedule 4 Changes to dispute resolution

Part 3 Changes to dispute resolution

112 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

96 Section 22

Omit "primary".

Note:

The heading to section 22 is altered by omitting "primary".

97 Section 23 (including the note)

Omit "primary" (wherever occurring).

Note:

The heading to section 23 is altered by omitting "primary".

98 Section 24

Omit "primary".

Note:

The heading to section 24 is altered by omitting "primary".

99 Subsection 25(1)

Omit "primary".

Note:

The heading to section 25 is altered by omitting "primary".

100 Subsection 27(1)

Omit "primary" (wherever occurring).

Note:

The heading to section 27 is altered by omitting "primary".

101 Subsections 27(2), 28(1) and (2) and 29(1)

Omit "primary".

Note:

The headings to sections 28 and 29 are altered by omitting "primary".

102 Paragraph 29(2)(a)

Omit "primary".

103 Subparagraphs 29(2)(b)(i) and (ii)

Omit "primary".

104 Paragraph 29(2)(c)

Omit "primary".

105 Section 30

Omit "primary" (wherever occurring).

Note:

The headings to sections 30 and 31 are altered by omitting "primary".

Changes to dispute resolution Schedule 4

Changes to dispute resolution Part 3

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 113

106 After Division 1 of Part 7

Insert:

Division 1A--Administration of Federal Magistrates

Court's family services

93A Chief Executive Officer has functions of family consultants

(1) The Chief Executive Officer has all of the functions conferred on

family consultants by section 11A of the Family Law Act 1975, and

any associated powers and duties.

(2) Without limiting subsection (1), sections 11C (admissibility of

communications with family consultants) and 11D (immunity of

family consultants) of that Act apply to the Chief Executive Officer

while the Chief Executive Officer is performing the functions of a

family consultant.

(3) The Chief Executive Officer is responsible for administering the

functions of family consultants appointed by the Chief Executive

Officer.

93B Chief Executive Officer may delegate powers and functions that

relate to family consultants

(1) The Chief Executive Officer may, in writing, delegate to a family

consultant any of the Chief Executive Officer's powers, functions

and duties in relation to the functions of family consultants

mentioned in section 11A of the Family Law Act 1975.

(2) A delegate is, in the exercise of a delegated power, function or

duty, subject to the directions of the Chief Executive Officer.

93C Chief Executive Officer may give directions that relate to family

services functions

The Chief Executive Officer may give directions that relate to:

(a) a Court officer's functions as a family consultant; or

(b) a Court officer's or staff member's functions as a family

counsellor or family dispute resolution practitioner.

Schedule 4 Changes to dispute resolution

Part 3 Changes to dispute resolution

114 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

93D Chief Executive Officer may authorise officer or staff member

to act as family counsellor or family dispute resolution

practitioner

(1) The Chief Executive Officer may authorise an officer or staff

member of the Family Court to provide family counselling under

Family Law Act 1975.

(2) The Chief Executive Officer may authorise an officer or staff

member of the Federal Magistrates Court to provide family dispute

resolution under the Family Law Act 1975.

(3) If an officer who is a family consultant also becomes a family

counsellor, or family dispute resolution practitioner, because of an

authorisation under this section:

(a) section 11C of the Family Law Act 1975 (admissibility of

communications with family consultants) does not apply to

the officer at any time while the officer is acting as a family

counsellor or family dispute resolution practitioner; and

(b) the officer must not perform the functions of a family

consultant in relation to particular proceedings, if the officer

has conducted family counselling or family dispute

resolution with a party to those proceedings.

107 Paragraph 87(1)(f)

Repeal the paragraph, substitute:

(f) authorising an officer making an investigation mentioned in

paragraph (e) to:

(i) take evidence on oath or affirmation; and

(ii) receive in evidence a report from a family consultant

under section 55A or 62G of the Family Law Act 1975;

and

(iii) receive in evidence a report from a person who has had

dealings with a party to a matter under investigation

under section 65F, 65L, 65LA, 70NEB or 70NEG of the

Family Law Act 1975; and

(fa) enabling the summoning of witnesses before an officer

making an investigation mentioned in paragraph (e) for the

purposes of giving evidence or producing books or

documents; and

Changes to dispute resolution Schedule 4

Changes to dispute resolution Part 3

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 115

108 Subsection 87(2)

Repeal the subsection, substitute:

(2) The Rules of Court may make provision for or in relation to:

(a) attendance at family counselling by parties to proceedings

under the Family Law Act 1975; and

(b) attendance at family dispute resolution by parties to

proceedings under the Family Law Act 1975; and

people involved in proceedings under the Family Law Act

1975; and

(d) the participation by parties to proceedings under the Family

Law Act 1975 in courses, programs and other services that

the parties are ordered by the court to participate in; and

(e) the use, for the purposes of proceedings under the Family

Law Act 1975, by the Federal Magistrates Court and officers

of the Court in family law and child support proceedings, of

reports about the future conduct of the proceedings that have

been prepared by persons who dealt with the parties in

accordance with Rules of Court made under paragraphs (a),

(b), (c) or (d).

109 At the end of subsection 99(1)

Add:

; (f) such family consultants as are necessary.

110 Paragraph 102(2)(k)

Repeal the paragraph, substitute:

(k) the power to make orders under the following provisions of

the Family Law Act 1975:

(i) sections 11F and 11G;

(ii) sections 13C and 13D;

(iii)

subsection

65LA(1);

(iv)

paragraph

70NEB(1)(a);

(ka) the power to direct a family consultant to give a report under

section 62G of the Family Law Act 1975;

111 After section 111

Insert:

Schedule 4 Changes to dispute resolution

Part 3 Changes to dispute resolution

116 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

111A Family consultants

Family consultants who are officers of the Federal Magistrates

Court are to be persons engaged under the Public Service Act 1999.

Note: Family

consultants

who are not officers of the Federal Magistrates

Court may be appointed under regulations made under the Family Law

Act 1975. See paragraph 11B(b) of the Family Law Act 1975.

112 After subsection 115(1)

Insert:

(1A) The Chief Executive Officer may engage persons to perform:

(a) family counselling services under the Family Law Act 1975;

(b) family dispute resolution services under the Family Law Act

1975.

113 Subsection 115(2)

After "subsection (1)", insert "or (1A)".

Marriage Act 1961

114 Section 9D

Repeal the section.

115 Paragraph 16(2A)(a)

Omit "and child" (wherever occurring).

116 Paragraph 16(2A)(b)

Omit "and child".

117 Subsection 16(7)

Omit "and child".

Changes to dispute resolution Schedule 4

Transitional matters relating to family counselling and family dispute resolution Part 4

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 117

Part 4--Transitional matters relating to family

counselling and family dispute resolution

118 Definitions

(1)

Terms used in this Part that are defined in the Family Law Act 1975

have the same meaning in this Part as they have in that Act.

(2)

In this Part:

approved family counselling organisation means:

(a) an organisation in respect of which an approval is in force

under item 120; or

(b) an organisation that is taken to be an approved family

counselling organisation because of item 123.

approved family dispute resolution organisation means:

(a) an organisation in respect of which an approval is in force

under item 125; or

(b) an organisation that is taken to be an approved family dispute

resolution organisation because of item 128.

commencement means the time at which Part 3 of this Schedule

commences.

transition period means the period:

(a) commencing at commencement; and

(b) ending on the day prescribed by regulations made for the

purposes of this definition.

119 Persons who are taken to be family counsellors during

the transition period

During the transition period, a person who is authorised by an approved

family counselling organisation to offer family counselling on behalf of

the organisation is taken to be a family counsellor within the meaning

of section 10C of the Family Law Act 1975.

120 Approval of family counselling organisations

(1)

During the transition period, the Minister may, by notice in writing to

an organisation, approve the organisation as a family counselling

organisation if, and only if, the Minister is satisfied that:

Schedule 4 Changes to dispute resolution

Part 4 Transitional matters relating to family counselling and family dispute resolution

118 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(a) the organisation is a recipient organisation (see subitem (2));

(b) there is a recipient organisation in relation to the organisation

(see subitem (3)).

Note:

If an organisation meets the requirements for approval under both this item and

item 125, the Minister may approve the organisation as both a family counselling

organisation and a family dispute resolution organisation.

(2)

An organisation is a recipient organisation for the purposes of

paragraph (1)(a) if it receives, or has been approved to receive, funding

under a program or a part of a program designated by the Minister

under subitem (4) in order to provide services that include family

counselling.

(3)

An organisation is a recipient organisation in relation to another

organisation for the purposes of paragraph (1)(b) if:

(a)

both:

(i) the other organisation is a member of the organisation;

and

(ii) the organisation receives, or has been approved to

receive, funding under a program or a part of a program

designated by the Minister under subitem (4) in order

that the organisation's members may provide services

that include family counselling; or

(b)

both:

(i) the organisation acts on behalf of a group of

organisations that includes the other organisation; and

(ii) the organisation receives, or has been approved to

receive, funding under a program or a part of a program

designated by the Minister under subitem (4) in order

that the organisations on whose behalf it acts may

provide services that include family counselling.

(4)

The Minister may, in writing, designate for the purposes of subitem (1):

(a) a program; or

(b) part of a program;

administered by or on behalf of the Commonwealth Government under

which money appropriated by the Parliament is provided to

organisations for the purposes of making family counselling and family

dispute resolution services available.

Changes to dispute resolution Schedule 4

Transitional matters relating to family counselling and family dispute resolution Part 4

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 119

(5)

An instrument under this item is not a legislative instrument.

121 Termination and revocation of approvals

(1)

An organisation ceases to be approved under item 120 if:

(a) the organisation; or

(b) if the organisation is not the recipient organisation within the

meaning of subitem 120(2)--the recipient organisation in

relation to the organisation within the meaning of subitem

120(3);

either:

(d) ceases to be approved to receive;

funding under a program or part of a program designated by the

Minister under subitem 120(4).

(2)

The Minister must revoke the approval of an organisation under

item 120 if the organisation requests the revocation.

(3)

The Minister's power to revoke an approval must be exercised by notice

in writing to the organisation concerned.

122 Minister to publish lists of approved family counselling

organisations

The Minister must publish annually, in such manner as the Minister

thinks appropriate, a list of all approved family counselling

organisations.

123 Approved counselling organisations become approved

family counselling organisations

(1)

If, immediately before commencement, there is in force in respect of an

organisation an approval under section 13A of the Family Law Act

1975, the organisation is, during the transition period, taken to be

approved as a family counselling organisation under item 120 of this

Schedule.

Note:

An organisation may be approved before commencement under both section 13A and

section 13B of the Family Law Act 1975. If that is the case, then both this item and

item 128 will apply to the organisation.

(2)

Subitem (1) does not prevent:

(a) the organisation's approval from being terminated; or

Schedule 4 Changes to dispute resolution

Part 4 Transitional matters relating to family counselling and family dispute resolution

120 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(b) the Minister from revoking the organisation's approval;

under item 121.

124 Persons who are taken to be family dispute resolution

practitioners during the transition period

During the transition period, these persons are taken to be family

dispute resolution practitioners within the meaning of section 10G of

the Family Law Act 1975:

(a) a person who is authorised by an approved family dispute

resolution organisation to offer family dispute resolution on

behalf of the organisation;

(b) a person, other than a person mentioned in paragraph (a),

who:

(i) on commencement; or

(ii) by the end of the period of 12 months starting on

commencement;

meets the requirements specified in regulations made for the

purposes of this paragraph.

125 Approval of family dispute resolution organisations

(1)

During the transition period, the Minister may, by notice in writing to

an organisation, approve the organisation as a family dispute resolution

organisation if, and only if, the Minister is satisfied that:

(a) the organisation is a recipient organisation (see subitem (2));

(b) there is a recipient organisation in relation to the organisation

(see subitem (3)).

Note:

If an organisation meets the requirements for approval under both this item and

item 120, the Minister may approve the organisation as both a family counselling

organisation and a family dispute resolution organisation.

(2)

An organisation is a recipient organisation for the purposes of

paragraph (1)(a) if it receives, or has been approved to receive, funding

under a program or a part of a program designated by the Minister

under subitem (4) in order to provide services that include family

dispute resolution.

(3)

An organisation is a recipient organisation in relation to another

organisation for the purposes of paragraph (1)(b) if:

(a)

both:

Changes to dispute resolution Schedule 4

Transitional matters relating to family counselling and family dispute resolution Part 4

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 121

(i) the other organisation is a member of the organisation;

and

(ii) the organisation receives, or has been approved to

receive, funding under a program or a part of a program

designated by the Minister under subsection (4) in order

that the organisation's members may provide services

that include family dispute resolution; or

(b)

both:

(i) the organisation acts on behalf of a group of

organisations that includes the other organisation; and

(ii) the organisation receives, or has been approved to

receive, funding under a program or a part of a program

designated by the Minister under subsection (4) in order

that the organisations on whose behalf it acts may

provide services that include family dispute resolution.

(4)

The Minister may, in writing, designate for the purposes of subitem (1):

(a) a program; or

(b) part of a program;

administered by or on behalf of the Commonwealth Government under

which money appropriated by the Parliament is provided to

organisations for the purposes of making family counselling and family

dispute resolution services available.

(5)

An instrument under this item is not a legislative instrument.

126 Termination and revocation of approvals

(1)

An organisation ceases to be approved under item 125 if:

(a) the organisation; or

(b) if the organisation is not the recipient organisation within the

meaning of subitem 125(2)--the recipient organisation in

relation to the organisation within the meaning of subitem

125(3);

either:

(d) ceases to be approved to receive;

funding under a program or part of a program designated by the

Minister under subitem 125(4).

Schedule 4 Changes to dispute resolution

Part 4 Transitional matters relating to family counselling and family dispute resolution

122 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(2)

The Minister must revoke the approval of an organisation under

item 125 if the organisation requests the revocation.

(3)

The Minister's power to revoke an approval must be exercised by notice

in writing to the organisation concerned.

127 Minister to publish lists of approved family dispute

resolution organisations

The Minister must publish annually, in such manner as the Minister

thinks appropriate, a list of all approved family dispute resolution

organisations.

128 Approved mediation organisations become approved

family dispute resolution organisations

(1)

If, immediately before commencement, there is in force in respect of an

organisation an approval under section 13B of the Family Law Act

1975, the organisation is, on and from commencement, taken to be

approved as a family dispute resolution organisation under item 125.

Note:

An organisation may be approved before commencement under both section 13A and

section 13B of the Family Law Act 1975. If that is the case, then both this item and

item 123 will apply to the organisation.

(2)

Subitem (1) does not prevent:

(a) the organisation's approval from being terminated; or

(b) the Minister from revoking the organisation's approval;

under item 126.

Changes to dispute resolution Schedule 4

Application and transitional provisions relating to other changes to dispute resolution

Part 5

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 123

Part 5--Application and transitional provisions

relating to other changes to dispute

resolution

129 Definition of commencement

In this Part:

commencement means the time at which Part 3 of this Schedule

commences.

130 Notices filed under section 15

If, at commencement, a notice filed under section 15 of the Family Law

Act 1975 as in force at any time before commencement has not been

acted on, an appropriate officer of the court in which the notice is filed

must arrange for the parties to the marriage to which the notice relates

to be interviewed by a family counsellor for the purpose of assisting the

parties to reconcile or to improve their relationship with each other or

any of their children.

131 Arbitration awards registered under section 19D or 19E

are taken to be registered under section 13H

If:

(a) at any time before commencement, an award in an arbitration

had been registered under section 19D or 19E of the Family

Law Act 1975; and

(b) the award is still registered immediately before

commencement;

the registration of the award continues to have effect after

commencement as if it had been done under section 13H of that Act.

132 Powers under Division 4 of Part IIIB of the Family Law

Act 1975 may be exercised in relation to section 19D

arbitration and private arbitration

For the purposes of section 13G, 13H, 13J and 13K:

(a) a reference to section 13E arbitration includes a reference to

section 19D arbitration (within the meaning of the Family

Law Act 1975 as in force immediately before

commencement); and

Schedule 4 Changes to dispute resolution

Part 5 Application and transitional provisions relating to other changes to dispute

resolution

124 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(b) a reference to relevant property or financial arbitration

includes a reference to private arbitration of a dispute (within

the meaning of the Family Law Act 1975 as in force

immediately before commencement).

133 Subsection 44(1B) certificates

A certificate in relation to the parties to a marriage, signed before

commencement by a person mentioned in subparagraph 44(1B)(a)(i) or

(ii) of the Family Law Act 1975 (as in force immediately before

commencement), may be filed in relation to an application for a divorce

order in relation to the marriage in satisfaction of the requirement in

subsection 44(1B) of that Act as amended by this Schedule.

134 Request for counselling under section 62C or 62CA

If, at commencement, a notice filed under section 62C or 62CA of the

Family Law Act 1975 has not been acted on, an appropriate officer of

the court in which the notice is filed must arrange for the parties to the

proceedings to which the notice relates (and the child and any other

persons the officer thinks appropriate) to be interviewed by a family

counsellor to assess whether counselling is appropriate in all the

circumstances, and, if it is:

(a) to discuss the care, welfare and development of the child; and

(b) if there are differences between the parties in relation to

matters affecting the care, welfare and development of the

child, to try to resolve those differences.

135 Order under subsection 62F(2)

If, at commencement, an order under subsection 62F(2) of the Family

Law Act 1975 has not yet been complied with, the order is taken to have

been complied with if the parties to which the order relate attend a

conference with a family counsellor (within the meaning of the Family

Law Act 1975 as amended by this Schedule).

136 Reports under section 62G

If, at commencement, a family and child counsellor or welfare officer

(within the meaning of the Family Law Act 1975 as in force

immediately before commencement) has been directed to give a report

under subsection 62G(2) of that Act and has not yet given that report:

(a) the person must still provide the report; and

Changes to dispute resolution Schedule 4

Application and transitional provisions relating to other changes to dispute resolution

Part 5

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 125

(b) references in section 62G of that Act (as amended by this

Schedule) to a family consultant are taken to be references to

the person who provides the report.

137 Pre-parenting order counselling for the purposes of

section 65F

If, before commencement, parties to proceedings attended a conference

with a family and child counsellor or a welfare officer to discuss the

matter to which the proceedings relate, the attendance at that conference

is taken to satisfy the requirement in subsection 65F(2) of the Family

Law Act 1975 (as amended by this Schedule) to attend a conference

with a family counsellor.

138 Supervision etc. of parenting orders

If:

(a) under a court order made before commencement under

section 65L of the Family Law Act 1975, a person is required

to do either or both of the following:

(i) supervise compliance with a parenting order;

(ii) give any party to the parenting order such assistance as

is reasonably requested by that party in relation to

compliance with, and the carrying out of, the parenting

order; and

(b) immediately after commencement, the person is not a family

consultant within the meaning of the Family Law Act 1975 as

amended by this Schedule;

then the court may make another order substituting a family consultant

for the person.

139 Regulations may prescribe matters relating to this

Schedule

(1)

The Governor-General may make regulations prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) relating to the amendments or repeals made by this

Schedule.

(2)

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Schedule to be prescribed; or

Schedule 4 Changes to dispute resolution

Part 5 Application and transitional provisions relating to other changes to dispute

resolution

126 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Schedule.

Representation of child's interests by independent children's lawyer Schedule 5

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 127

Schedule 5--Representation of child's

interests by independent children's

lawyer

Part 1--Amendments

Family Law Act 1975

1 Subsection 4(1) (definition of child representative)

Repeal the definition.

2 Subsection 4(1)

Insert:

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).

3 Subsection 4(1)

Insert:

lawyer means a person enrolled as a legal practitioner of:

(a) a federal court; or

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

4 Section 60C (table item 10)

Repeal the item, substitute:

Division 10--The representation of the child's interests

the representation of a child's interests in proceedings by an

independent children's lawyer

5 Division 10 of Part VII

Repeal the Division, substitute:

Schedule 5 Representation of child's interests by independent children's lawyer

Part 1 Amendments

128 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Division 10--Independent representation of child's interests

68L Court order for independent representation of child's interests

(1) This section applies to proceedings under this Act in which a

child's best interests are, or a child's welfare is, the paramount, or

a relevant, consideration.

(2) If it appears to the court that the child's interests in the proceedings

ought to be independently represented by a lawyer, the court:

(a) may order that the child's interests in the proceedings are to

be independently represented by a lawyer; and

(b) may make such other orders as it considers necessary to

secure that independent representation of the child's interests.

(3) However, if the proceedings arise under regulations made for the

purposes of section 111B, the court:

(a) may order that the child's interests in the proceedings be

independently represented by a lawyer only if the court

considers there are exceptional circumstances that justify

doing so; and

(b) must specify those circumstances in making the order.

Note:

Section 111B is about the Convention on the Civil Aspects of

International Child Abduction.

(4) A court may make an order for the independent representation of

the child's interests in the proceedings by a lawyer:

(a) on its own initiative; or

(b) on the application of:

(i) the child; or

(ii) an organisation concerned with the welfare of children;

(iii)

any

other

person.

(5) Without limiting paragraph (2)(b), the court may make an order

under that paragraph for the purpose of allowing the lawyer who is

to represent the child's interests to find out what the child's views

are on the matters to which the proceedings relate.

Note:

A person cannot require a child to express his or her views in relation

to any matter, see section 60CE.

Representation of child's interests by independent children's lawyer Schedule 5

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 129

(6) Subsection (5) does not apply if complying with that subsection

would be inappropriate because of:

(a) the child's age or maturity; or

(b) some other special circumstance.

68LA Role of independent children's lawyer

When section applies

(1) This section applies if an independent children's lawyer is

appointed for a child in relation to proceedings under this Act.

General nature of role of independent children's lawyer

(2) The independent children's lawyer must:

(a) form an independent view, based on the evidence available to

the independent children's lawyer, of what is in the best

interests of the child and inform the court of that view; and

(b) act in relation to the proceedings in what the independent

children's lawyer believes to be the best interests of the child.

(3) Without limiting paragraph (2)(a), the independent children's

lawyer must, if satisfied that the adoption of a particular course of

action is in the best interests of the child, make a submission to the

court suggesting the adoption of that course of action.

(4) The independent children's lawyer:

(a) is not the child's legal representative; and

(b) is not obliged to act on the child's instructions in relation to

the proceedings.

Specific duties of independent children's lawyer

(5) The independent children's lawyer must:

(a) act impartially in dealings with the parties to the proceedings;

and

(b) inform the court of the views that the child has expressed in

relation to the matters to which the proceedings relate; and

used in the proceedings:

(i) analyse the report or other document to identify those

matters in the report or other document that the

Schedule 5 Representation of child's interests by independent children's lawyer

Part 1 Amendments

130 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

independent children's lawyer considers to be the most

significant ones for determining what is in the best

interests of the child; and

(ii) ensure that those matters are properly drawn to the

court's attention; and

(d) endeavour to minimise the trauma to the child associated

with the proceedings; and

(e) facilitate an agreed resolution of matters at issue in the

proceedings to the extent to which doing so is in the best

interests of the child.

Disclosure of information

(6) Subject to subsection (7), the independent children's lawyer:

(a) is not under an obligation to disclose to the court;

(b) cannot be required to disclose to the court;

any information that the child communicates to the independent

children's lawyer.

(7) The independent children's lawyer may disclose to the court any

information that the child communicates to the independent

children's lawyer if the independent children's lawyer considers

the disclosure to be in the best interests of the child.

(8) Subsection (7) applies even if the disclosure is made against the

wishes of the child.

68M Order that child be made available for examination

(1) This section applies if an independent children's lawyer is

appointed to independently represent a child's interests in relation

to proceedings under this Act.

(2) The court may, on application by the independent children's

lawyer, order a person mentioned in subsection (3) to make the

child available, as specified in the order, for an examination to be

made for the purpose of preparing a report about the child for use

by the independent children's lawyer in connection with the

proceedings.

(3) The order may be directed to:

(a) a parent of the child; or

Representation of child's interests by independent children's lawyer Schedule 5

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 131

(b) a person with whom the child is to live under a parenting

order; or

parenting order; or

(d) a person with whom the child is to communicate under a

parenting order; or

(e) a person who has parental responsibility for the child.

6 Subparagraph 69W(2)(b)(ii)

Omit "a person representing the child", substitute "an independent

children's lawyer representing the child's interests".

7 Subparagraph 69ZC(3)(b)(ii)

Omit "a person representing the relevant child", substitute "an

independent children's lawyer representing the relevant child's

interests".

8 Subsection 117(3)

Omit "a child representative", substitute "an independent children's

lawyer for a child".

9 Subsection 117(3)

Omit "the child representative", substitute "the independent children's

lawyer".

10 Subsection 117(4)

Omit "a child representative", substitute "an independent children's

lawyer for a child".

11 Subsection 117(4)

Omit "the child representative", substitute "the independent children's

lawyer" (wherever occurring).

12 Subsection 117(5)

Omit "a child representative", substitute "an independent children's

lawyer".

13 Subsection 117(5)

Schedule 5 Representation of child's interests by independent children's lawyer

Part 1 Amendments

132 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Omit "the child representative", substitute "the independent children's

lawyer".

Representation of child's interests by independent children's lawyer Schedule 5

Application of amendments and saving of appointments Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 133

Part 2--Application of amendments and saving of

appointments

14 Definitions

In this Part:

commencement means the commencement of this Schedule.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

15 Application of amendments

The amendments made by this Schedule apply to proceedings initiated

under Part VII before, on or after the day on which this Schedule

commences.

16 Saving of appointments

(1)

This item applies if:

(a) a court made an order under section 68L of the old Act for

separate representation of a child; and

(b) immediately before commencement, the proceedings in

which the order was made have not been concluded.

(2)

The person who was appointed as the child's representative under

section 68L of the old Act is taken to be appointed as the independent

children's lawyer under section 68L of the new Act.

(3)

The order under section 68L of the old Act for separate representation

of the child is taken to be an order under section 68L of the new Act for

independent representation of the child's interests.

Schedule 6 Family violence

Part 1 Amendments

134 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 6--Family violence

Part 1--Amendments

Family Law Act 1975

1 Division 11 of Part VII

Repeal the Division, substitute:

Division 11--Family violence

68N Purposes of this Division

The purposes of this Division are:

(a) to resolve inconsistencies between:

(i) family violence orders; and

(ii) certain orders, injunctions and arrangements made

under this Act that provide for a child to spend time

with a person or require or authorise a person to spend

time with a child; and

(b) to achieve the objects and principles in section 60B.

Note:

Other provisions dealing with family violence and family violence

orders are section 4 (definitions), paragraphs 60B(1)(b) and

60CC(2)(i) and (j), sections 60CF and 60CG, subsection 60I(9),

section 60K, subsection 61DA(2), paragraph 65F(2)(b) and

section 65P.

68P Obligations of court making an order or granting an injunction

under this Act that is inconsistent with an existing family

violence order

(1) This section applies if:

(a)

court:

(i) makes a parenting order that provides for a child to

spend time with a person, or expressly or impliedly

requires or authorises a person to spend time with a

child; or

(ii) makes a recovery order (as defined in section 67Q) or

any other order under this Act that expressly or

Family violence Schedule 6

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 135

impliedly requires or authorises a person to spend time

with a child; or

(iii) grants an injunction under section 68B or 114 that

expressly or impliedly requires or authorises a person to

spend time with a child; and

(b) the order made or injunction granted is inconsistent with an

existing family violence order.

(2) The court must, to the extent to which the order or injunction

provides for the child to spend time with a person, or expressly or

impliedly requires or authorises a person to spend time with the

child:

(a) specify in the order or injunction that it is inconsistent with

an existing family violence order; and

(b) give a detailed explanation in the order or injunction of how

the contact that it provides for is to take place; and

injunction to:

(i) the applicant and respondent in the proceedings for the

order or injunction; and

(ii) the person against whom the family violence order is

directed (if that person is not the applicant or

respondent); and

(iii) the person protected by the family violence order (if that

person is not the applicant or respondent); and

(d) include (or arrange to be included) in the explanation, in

language those persons are likely to readily understand:

(i) the purpose of the order or injunction; and

(ii) the obligations created by the order or injunction,

including how the contact that it provides for is to take

place; and

(iii) the consequences that may follow if a person fails to

comply with the order or injunction; and

(iv) the court's reasons for making an order or granting an

injunction that is inconsistent with a family violence

order; and

(v) the circumstances in which a person may apply for

variation or revocation of the order or injunction.

Schedule 6 Family violence

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136 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(3) As soon as practicable after making the order or granting the

injunction (and no later than 14 days after making or granting it),

the court must give a copy to:

(a) the applicant and respondent in the proceedings for the order

or injunction; and

(b) the person against whom the family violence order is directed

(if that person is not the applicant or respondent); and

person is not the applicant or respondent); and

(d) the Registrar, Principal Officer or other appropriate officer of

the court that last made or varied the family violence order;

and

(e) the Commissioner or head (however described) of the police

force of the State or Territory in which the person protected

by the family violence order resides; and

(f) a child welfare officer in relation to the State or Territory in

which the person protected by the family violence order

resides.

(4) Failure to comply with this section does not affect the validity of

the order or injunction.

68Q Relationship of order or injunction made under this Act with

existing inconsistent family violence order

(1) To the extent to which:

(a) an order or injunction mentioned in paragraph 68P(1)(a) is

made or granted that provides for a child to spend time with a

person, or expressly or impliedly requires or authorises a

person to spend time with a child; and

(b) the order or injunction is inconsistent with an existing family

violence order;

the family violence order is invalid.

(2) An application for a declaration that the order or injunction is

inconsistent with the family violence order may be made, to a court

that has jurisdiction under this Part, by:

(a) the applicant or respondent in the proceedings for the order

or injunction mentioned in paragraph 68P(1)(a); or

(b) the person against whom the family violence order is directed

(if that person is not the applicant or respondent); or

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 137

person is not the applicant or respondent).

(3) The court must hear and determine the application and make such

declarations as it considers appropriate.

68R Power of court making a family violence order to revive, vary,

discharge or suspend an existing order, injunction or

arrangement under this Act

Power

(1) In proceedings to make or vary a family violence order, a court of a

State or Territory that has jurisdiction in relation to this Part may

revive, vary, discharge or suspend:

(a) a parenting order, to the extent to which it provides for a

child to spend time with a person, or expressly or impliedly

requires or authorises a person to spend time with the child;

(b) a recovery order (as defined in section 67Q) or any other

order under this Act, to the extent to which it expressly or

impliedly requires or authorises a person to spend time with a

child; or

to which it expressly or impliedly requires or authorises a

person to spend time with a child; or

(d) to the extent to which it expressly or impliedly requires or

authorises a person to spend time with a child:

(i) an undertaking given to, and accepted by, a court

exercising jurisdiction under this Act; or

(ii) a registered parenting plan within the meaning of

subsection 63C(6); or

(iii) a recognisance entered into under an order under this

Act.

(2) The court may do so:

(a) on its own initiative; or

(b) on application by any person.

Schedule 6 Family violence

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138 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Limits on power

(3) The court must not do so unless:

(a) it also makes or varies a family violence order in the

proceedings (whether or not by interim order); and

(b) if the court proposes to revive, vary, discharge or suspend an

order or injunction mentioned in paragraph (1)(a), (b) or

(c)--the court has before it material that was not before the

court that made that order or injunction.

(4) The court must not exercise its power under subsection (1) to

discharge an order, injunction or arrangement in proceedings to

make an interim family violence order or an interim variation of a

family violence order.

Relevant considerations

(5) In exercising its power under subsection (1), the court must:

(a) have regard to the purposes of this Division (stated in

section 68N); and

(b) have regard to whether contact with both parents is in the

best interests of the child concerned; and

mentioned in paragraph (1)(a), (b) or (c) that, when made or

granted, was inconsistent with an existing family violence

order--be satisfied that it is appropriate to do so because a

person has been exposed, or is likely to be exposed, to family

violence as a result of the operation of that order or

injunction.

Note:

Sections 60CB to 60CG deal with how a court determines a child's

best interests.

Registration of revival, variation, discharge or suspension of

orders and other arrangements

(6) The regulations may require a copy of the court's decision to

revive, vary, discharge or suspend an order, injunction or

arrangement to be registered in accordance with the regulations.

Failure to comply with the requirement does not affect the validity

of the court's decision.

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

(1) The following provisions do not apply to a court exercising the

power under section 68R:

(a) section 65C (who may apply for a parenting order);

(b) subsection 65F(2) (parenting order not to be made unless

parties attend family counselling);

(d) section 69N (requirement to transfer certain proceedings);

(e) any provisions (for example, section 60CA) that would

otherwise make the best interests of the child the paramount

consideration;

Note:

Even though the best interests of the child are not paramount,

they must still be taken into account under paragraph 68R(5)(b).

(f) any provisions of this Act or the applicable Rules of Court

specified in the regulations.

(2) If a court is exercising the power under section 68R in proceedings

to make an interim family violence order or an interim variation of

a family violence order:

(a) the court has a discretion about whether to apply paragraph

60CC(3)(a) (about taking into account a child's views etc.);

and

(b) any provisions of this Act or the applicable Rules of Court

specified in the regulations do not apply.

(3) A court exercising the power under section 68R may, as it thinks

appropriate, dispense with any otherwise applicable Rules of

Court.

68T Special provisions relating to proceedings to make an interim

(or interim variation of) family violence order

(1) If, in proceedings to make an interim family violence order or an

interim variation of a family violence order, the court revives,

varies or suspends an order, injunction or arrangement under

section 68R, that revival, variation or suspension ceases to have

effect at the earlier of:

(a) the time the interim order stops being in force; and

(b) the end of the period of 21 days starting when the interim

order was made.

Schedule 6 Family violence

Part 1 Amendments

140 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(2) No appeal lies in relation to the revival, variation or suspension.

Family violence Schedule 6

Application of amendments and savings Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 141

Part 2--Application of amendments and savings

2 Definitions

In this Part:

commencement means the commencement of this Schedule.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

3 Application of amendments

The amendments made by Part 1 of this Schedule apply to orders made

after commencement, whether the application for the order was made

before or after that time.

4 Saving of regulations

Despite the repeal of a provision of the old Act specified in the

following table, regulations that:

(a) were made for the purposes of that provision of the old Act;

and

(b) were in force immediately before commencement;

continue to have effect on and after commencement as if those

regulations had been made for the purposes of the corresponding

provision of the new Act that is specified in the table in relation to that

provision of the old Act:

Saving regulations made under provisions of old Act

Item

provision of old Act

corresponding provision of new

Act

1 subparagraph

68T(3)(a)(iii) paragraph

68S(1)(f)

2 subparagraph

68T(3)(b)(ii)

paragraph

68S(2)(b)

subsection 68T(6)

subsection 68R(6)

Schedule 7 Jurisdiction of courts

Part 1 Amendment

142 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 7--Jurisdiction of courts

Part 1--Amendment

Family Law Act 1975

1 Section 45A

Repeal the section.

Jurisdiction of courts Schedule 7

Application of amendment Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 143

Part 2--Application of amendment

2 Application of amendment

The amendment made by item 1 of this Schedule applies to proceedings

instituted before or after the commencement of that item.

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

144 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 8--Removal of references to

residence and contact

Part 1--Amendments

Australian Citizenship Act 1948

1 Paragraphs 5(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) under a parenting order the child is to live with the person

(whether or not the person is a parent of the child); or

for the child's long-term or day-to-day care, welfare and

development (whether or not the person is a parent of the

child); or

Australian Citizenship Act 2005

2 Paragraphs 6(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) under a parenting order the child is to live with the person

(whether or not the person is a parent of the child); or

for the child's long-term or day-to-day care, welfare and

development (whether or not the person is a parent of the

child); or

Australian Passports Act 2005

3 Paragraphs 11(5)(b) and (c)

Repeal the paragraphs, substitute:

(b) under a parenting order:

(i) the child is to live with the person; or

(ii) the child is to spend time with the person; or

(iii) the person is responsible for the child's long-term or

day-to-day care, welfare and development; or

Removal of references to residence and contact Schedule 8

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 145

4 Subsection 11(6)

Repeal the subsection.

Child Support (Assessment) Act 1989

5 Section 5

Insert:

major care has the meaning given by subsections 8(3) and 8A(5).

6 Section 5 (definition of major contact)

Repeal the definition.

7 Section 5 (subparagraph (a)(ii) of the definition of relevant

dependent child)

Omit "contact with", substitute "care of".

8 Section 5

Insert:

substantial care has the meaning given by subsections 8(3) and

8A(4).

9 Section 5 (definition of substantial contact)

Repeal the definition.

10 Paragraph 7B(1)(b)

Omit "contact with", substitute "care of".

11 Paragraph 7B(1)(d)

Omit "contact with", substitute "care of".

12 Paragraph 7B(2)(a)

Omit "provides care for a child, shares care of a child or has contact

with", substitute "cares for".

13 Paragraph 7B(2)(c)

Omit "providing or sharing such care, or having such contact",

substitute "caring for the child".

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

146 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

14 Subsection 7B(2)

Omit "provide or share such care or have such contact", substitute "care

for the child".

15 Subsection 7B(3)

Omit "provide care for, share care of or have contact with,", substitute

"care for".

16 Subparagraph 8(3)(b)(ii)

Omit "contact with", substitute "care of".

Note:

The heading to section 8 is altered by omitting "contact" and substituting "care".

17 Paragraph 8(3)(c)

Omit "contact with", substitute "care of".

18 Paragraph 8(3)(d)

Omit "contact with", substitute "care of".

19 Paragraph 8A(1)(a)

Omit "the contact between a child and", substitute "the time a child is to

spend with".

Note:

The heading to section 8A is altered by omitting "/contact".

20 Paragraph 8A(1)(d)

Repeal the paragraph, substitute:

(d) as a result of the contravention:

(i) a person (the first person) has more care of the child

than the first person would have if the order or parenting

plan were not being contravened; and

(ii) another person (the second person) has less care of the

child than the second person would have if the order or

parenting plan were not being contravened.

21 Paragraphs 8A(2)(a) and (b)

Repeal the paragraphs, substitute:

(a) the first person is taken to have care of the child only to the

extent (if any) to which the first person would have care of

Removal of references to residence and contact Schedule 8

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 147

the child if the court order or parenting plan (as the case may

be) were being complied with; and

(b) the amount of care that the second person has of the child is

to be worked out on the basis of the care (if any) that the

person actually has of the child; and

22 Subsection 8A(4)

Omit "contact with", substitute "care of".

23 Subsection 8A(5)

Omit "contact with", substitute "care of".

24 Subsection 8A(6)

Omit "contact with", substitute "care of".

25 Paragraph 48(1)(da)

Omit "with whom the parent has substantial contact", substitute "of

whom the parent has substantial care".

26 Paragraph 48(1)(e)

Omit "with whom a parent has major contact taken to be 0.65, the

number attributed to each child with whom a parent has substantial

contact", substitute "of whom a parent has major care taken to be 0.65,

the number attributed to each child of whom a parent has substantial

care".

27 Paragraph 54(1)(b) (definition of number of children in

carer's care)

Omit "with whom a carer has major contact taken to be 0.65, the

number attributed to each child with whom a carer has substantial

contact", substitute "of whom a carer has major care taken to be 0.65,

the number attributed to each child of whom a carer has substantial

care".

28 Section 54 (example 2)

Omit "substantial contact", substitute "substantial care".

29 Paragraph 54A(1)(a)

Omit "and contact".

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

148 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

30 Subparagraph 54A(1)(b)(ii)

Omit "contact with", substitute "care of".

31 Paragraph 54B(1)(e)

Omit "with whom the parent has substantial contact", substitute "of

whom the parent has substantial care".

32 Subparagraph 54B(1)(f)(i)

Omit "with whom the carer has major contact", substitute "of whom the

carer has major care".

33 Subparagraph 54B(1)(f)(ii)

Omit "with whom the carer has substantial contact", substitute "of

whom the carer has substantial care".

34 Paragraph 98C(2)(b)

Omit "sub-subparagraph 117(2)(b)(i)(C)", substitute "subparagraph

117(2)(b)(ib)".

35 Subparagraph 117(2)(a)(iv)

Repeal the subparagraph, substitute:

(iv) high costs involved in enabling a parent to care for any

other child or another person that the parent has a duty

to maintain;

36 Subparagraph 117(2)(b)(i)

Repeal the subparagraph, substitute:

(i) because of high costs involved in enabling a parent to

care for the child; or

(ia) because of special needs of the child; or

(ib) because of high child care costs in relation to the child;

37 Subsection 117(3)

Omit "have contact with", substitute "care for".

38 Subsection 117(3)

Omit "sub-subparagraph 117(2)(b)(i)(A)", substitute "subparagraph

117(2)(b)(i)".

Removal of references to residence and contact Schedule 8

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 149

39 Subsections 117A(3A) and (3B)

Omit "sub-subparagraph 117(2)(b)(i)(C)", substitute "subparagraph

117(2)(b)(ib)".

Family Law Act 1975

40 Subsection 4(1) (definition of contact order)

Repeal the definition.

41 Subsection 4(1) (definition of has)

Repeal the definition.

42 Subsection 4(1) (definition of made in favour)

Repeal the definition, substitute:

made in favour, in relation to a parenting order (other than a child

maintenance order), has the meaning given by subsection 64B(6).

43 Subsection 4(1)

Insert:

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

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

150 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

convention country (within the meaning of the regulations

made for the purposes of that section).

44 Subsection 4(1) (definition of residence order)

Repeal the definition.

45 Subsection 4(1) (definition of specific issues order)

Repeal the definition.

46 Subsection 4(1)

Insert:

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;

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.

47 Subsection 4(1)

Insert:

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

and development.

48 Subsection 26B(1A)

Repeal the subsection, substitute:

(1A)

excluded child order is:

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 151

(a) a parenting order to the extent to which it provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; or

(iv) a person is to have parental responsibility for a child; or

(b) an order in relation to the welfare of a child;

other than:

order made under paragraph 70NFB(2)(c) that has the same

effect as such a parenting order; or

(d) an order until further order; or

(e) an order made in undefended proceedings; or

(f) an order made with the consent of all the parties to the

proceedings.

49 Subsection 37A(2A)

Repeal the subsection, substitute:

(2A)

excluded child order is:

(a) a parenting order to the extent to which it provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; or

(iv) a person is to have parental responsibility for a child; or

(b) an order in relation to the welfare of a child;

other than:

(d) an order made in undefended proceedings; or

(e) an order made with the consent of all the parties to the

proceedings.

50 Section 60C (table item 6)

Omit ", other than child maintenance orders" (first occurring), substitute

"(other than child maintenance orders) after attending, if necessary,

family dispute resolution (see section 60I)".

51 Section 60C (table item 6)

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

152 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Omit "residence orders, contact orders and specific issues orders",

substitute "parenting orders, other than child maintenance orders".

52 Section 60C (table item 11)

Omit "contact orders etc.", substitute "parenting orders".

53 Section 60C (table item 13A)

Omit "for contact forgone", substitute "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,".

54 Subsection 63C(4)

Repeal the subsection, substitute:

(4) Provisions of a parenting plan that deal with matters other than the

maintenance of a child are child welfare provisions.

55 Subsection 63C(5)

Omit "(c)", substitute "(f)".

56 Subsection 63F(3)

Repeal the subsection, substitute:

(3) The child welfare provisions have effect, subject to subsections (5)

and (6), as if they were provisions of a parenting order.

Note:

Provisions of this Act relevant to the child welfare provisions having

effect as provided in this subsection include:

(a)

Subdivisions C, D and E of Division 6 of this Part (dealing with

obligations created by parenting orders (other than child

maintenance orders)); and

(b)

Division 13A of this Part and Part XIII (dealing generally with

enforcement of orders and sanctions for contravening orders);

and

(c)

subsection 65D(2) (providing for discharge, variation, suspension

and revival of parenting orders other than child maintenance

orders); and

(d)

other provisions of this Act (including subsection 64B(6)) that

refer to parenting orders.

57 Paragraph 65A(b)

Repeal the paragraph, substitute:

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 153

(b) the general obligations created by parenting orders, other

than child maintenance orders (Subdivision C); and

58 Subsection 65G(1)

Repeal the subsection, substitute:

(1) This section applies if:

(a) a court proposes to make a parenting order that deals with

whom a child is to live with; and

(b) under the order, the child would not live with a parent,

grandparent or other relative of the child; and

the parties to the proceedings.

(1A) This section also applies if:

(a) a court proposes to make a parenting order that deals with the

allocation of parental responsibility for a child; and

(b) under the order, no parent, grandparent or other relative of

the child would be allocated parental responsibility for the

child; and

the parties to the proceedings.

Note:

The heading to section 65G is altered by omitting "residence order or specific issues

order" and substituting "parenting order about whom a child lives with or the

allocation of parental responsibility".

59 Paragraph 65K(1)(a)

Repeal the paragraph, substitute:

(a) a parenting order is in force that provides that a child is to

live with one of the child's parents; and

Note:

The heading to section 65K is altered by omitting "that is or includes residence

order" and substituting "that deals with whom a child lives with".

60 Subsection 65K(3)

Repeal the subsection, substitute:

(3) The surviving parent, or another person (subject to section 65C),

may apply for a parenting order that deals with the person or

persons with whom the child is to live.

61 Subdivision C of Division 6 of Part VII (heading)

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

154 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Repeal the heading, substitute:

Subdivision C--General obligations created by certain

parenting orders

62 Subsection 65M(1)

Repeal the subsection, substitute:

(1) This section applies to a parenting order that is in force in relation

to a child to the extent to which the order deals with whom the

child is to live with.

Note:

The heading to section 65M is altered by omitting "residence order" and substituting

"parenting order that deals with whom a child lives with".

63 Sections 65N and 65P

Repeal the sections, substitute:

65N General obligations created by parenting order that deals with

whom a child spends time with

(1) This section applies to a parenting order that is in force in relation

to a child to the extent to which the order deals with whom the

child is to spend time with.

(2) A person must not:

(a) hinder or prevent a person and the child from spending time

together in accordance with the order; or

(b) interfere with a person and the child benefiting from

spending time with each other under the order.

65NA General obligations created by parenting order that deals

with whom a child communicates with

(1) This section applies to a parenting order that is in force in relation

to a child to the extent to which the order deals with whom the

child is to communicate with.

(2) A person must not:

(a) hinder or prevent a person and the child from communicating

with each other in accordance with the order; or

Removal of references to residence and contact Schedule 8

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 155

(b) interfere with the communication that a person and the child

are supposed to have with each other under the order.

65P General obligations created by parenting order that allocates

parental responsibility

(1) This section applies to a parenting order that is in force in relation

to a child to the extent to which the order allocates parental

responsibility for the child to a person (the carer).

(2) A person must not hinder the carer in, or prevent the carer from,

discharging that responsibility.

64 Paragraphs 65Q(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) a parenting order provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person; and

(b) a court having jurisdiction under this Part is satisfied, on

application by the person referred to in paragraph (1)(a), that

there are reasonable grounds for believing that a person (the

alleged offender) has contravened section 65M, 65N or

65NA in relation to the order; and

65 Subsection 65X(1)

Repeal the subsection, substitute:

(1) In this Subdivision:

parenting order to which this Subdivision applies means a

parenting order to the extent to which it provides, or would

provide, that:

(a) a child is to live with a person; or

(b) a child is to spend time with a person; or

(d) a person is to have parental responsibility for a child.

66 Subsection 65Y(1)

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

156 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Omit "If a residence order, a contact order or a care order (the Part VII

order)", substitute "If a parenting order to which this Subdivision

applies".

Note:

The heading to section 65Y is altered by omitting "residence order, contact order or

care order has" and substituting "certain parenting orders have".

67 Paragraph 65Y(2)(a)

Omit "Part VII order", substitute "order referred to in subsection (1)".

68 Paragraph 65Y(2)(b)

Omit "Part VII order", substitute "order referred to in subsection (1)".

69 Subsection 65Z(1)

Omit "a residence order, a contact order or a care order", substitute "a

parenting order to which this Subdivision applies".

Note:

The heading to section 65Z is altered by omitting "residence order, contact order or

care order" and substituting "certain parenting orders".

70 Paragraph 65ZA(1)(a)

Repeal the paragraph, substitute:

(a) a parenting order to which this Subdivision applies is in

force; and

Note:

The heading to section 65ZA is altered by omitting "residence order, contact order or

care order" and substituting "certain parenting orders".

71 Paragraph 65ZA(1)(b)

Omit "Part VII".

72 Subsections 65ZA(3) and (4)

Omit "Part VII".

73 Paragraph 65ZB(1)(a)

Omit "a residence order, a contact order or a care order", substitute "a

parenting order to which this Subdivision applies".

Note:

The heading to section 65ZB is altered by omitting "residence order, contact order or

care order" and substituting "certain parenting orders".

74 Paragraphs 67K(1)(a) to (c)

Repeal the paragraphs, substitute:

Removal of references to residence and contact Schedule 8

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 157

(a) a person with whom the child is to live under a parenting

order; or

(b) a person with whom the child is to spend time under a

parenting order; or

(caa) a person who has parental responsibility for the child under a

parenting order; or

75 Subparagraphs 67Q(a)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) a person with whom the child is to live under a

parenting order; or

(iii) a person with whom the child is to spend time under a

parenting order; or

(iv) a person with whom the child is to communicate under a

parenting order; or

(v) a person who has parental responsibility for the child;

76 Subparagraphs 67Q(d)(ii) to (iv)

Repeal the subparagraphs, substitute:

(ii) a person described in subparagraph (a)(ii), (iii), (iv) or

(v); or

(iii) some other person on behalf of a person described in

subparagraph (i) or (ii);

77 Paragraphs 67T(a) to (c)

Repeal the paragraphs, substitute:

(a) a person with whom the child is to live under a parenting

order; or

(b) a person with whom the child is to spend time under a

parenting order; or

(caa) a person who has parental responsibility for the child under a

parenting order; or

78 Subparagraphs 68B(1)(b)(ii) and (iii)

Repeal the subparagraphs, substitute:

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

158 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(ii) a person with whom the child is to live under a

parenting order; or

(iii) a person with whom the child is to spend time under a

parenting order; or

(iv) a person with whom the child is to communicate under a

parenting order; or

(v) a person who has parental responsibility for the child; or

79 Paragraph 69Z(2)(c)

Repeal the paragraph, substitute:

the child's long-term or day-to-day care, welfare and

development.

80 Paragraph 69ZA(1)(c)

Repeal the paragraph, substitute:

the child's long-term or day-to-day care, welfare and

development.

81 Subparagraph 69ZH(3)(a)(ii)

Repeal the subparagraph, substitute:

(ii) whom the child lives with, whom the child spends time

with and other aspects of the care, welfare and

development of the child; and

82 Subsection 70J(1)

Omit "a residence order, a contact order or a care order", substitute "a

Subdivision C parenting order".

83 Paragraph 70J(1)(a)

Repeal the paragraph, substitute:

(a)

each

person:

(i) with whom the child is supposed to live; or

(ii) who is to spend time with the child; or

(iii) who is to have contact with the child; or

(iv) who has rights of custody or access in relation to the

child;

Removal of references to residence and contact Schedule 8

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 159

under the overseas order consents to the exercise of

jurisdiction by the court in the proceedings; or

84 Subsection 70J(2)

Omit "a residence order, a contact order or a care order" (wherever

occurring), substitute "a Subdivision C parenting order".

85 Paragraph 70J(2)(b)

Omit "the residence order, contact order or care order", substitute "the

Subdivision C parenting order".

86 Paragraph 70K(b)

Omit "a residence order, a contact order or a care order", substitute "a

Subdivision C parenting order".

Note:

The heading to section 70K is altered by omitting "residence order, contact order or

care order" and substituting "Subdivision C parenting order".

87 Subsection 70L(1) (paragraph (a) of the definition of

Australian child order)

Repeal the paragraph, substitute:

(a) a Subdivision C parenting order; or

88 Subsection 70L(1) (paragraph (a) of the definition of

responsible person)

Repeal the paragraph, substitute:

(a) with whom the child is supposed to live under the order; or

(aa) whom the child is supposed to spend time with under the

order; or

(ab) whom the child is supposed to have contact with under the

order; or

89 Paragraph 70M(1)(a)

Repeal the paragraph, substitute:

(a) a court in Australia makes, in relation to a child who is under

18:

(i) a parenting order, other than a child maintenance order;

(ii) a State child order; and

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

160 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

90 Paragraph 70M(3)(a)

Repeal the paragraph, substitute:

(a) a person with whom the child is supposed to live under the

order; or

(aa) a person with whom the child is supposed to spend time

under the order; or

(ab) a person with whom the child is supposed to have contact

under the order; or

91 Subsection 70N(1)

Repeal the subsection, substitute:

(1) The regulations may make provision for and in relation to the

sending to a prescribed overseas jurisdiction of copies of, and

documents relating to:

(a) a parenting order, other than a child maintenance order; or

(b) a State child order;

that relates to a child to whom an overseas child order relates.

92 Paragraphs 79A(1AA)(b) and (c)

Repeal the paragraphs, substitute:

(b) a parenting order provides that:

(i) the child is to live with the person; or

(ii) the person has parental responsibility for the child.

93 Paragraphs 90K(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) a parenting order provides that:

(i) the child is to live with the person; or

(ii) the person has parental responsibility for the child.

94 Subparagraph 91(1)(b)(i)

Repeal the subparagraph, substitute:

(i) a parenting order, other than a child maintenance order;

95 Paragraphs 92A(2)(ba) and (bb)

Repeal the paragraphs, substitute:

Removal of references to residence and contact Schedule 8

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 161

(ba) a person with whom the child is to live under a parenting

order;

(bb) a person who has parental responsibility for the child under a

parenting order;

96 Paragraph 111B(1A)(c)

Repeal the paragraph, substitute:

regulations applying on behalf of another person for a

parenting order that deals with the person or persons with

whom a child is to spend time or communicate if the

outcome of the proceedings is that the child is not to be

returned under the Convention.

97 Paragraph 111B(4)(b)

Repeal the paragraph, substitute:

(b) subject to any order of a court for the time being in force, a

person:

(i) with whom a child is to live under a parenting order; or

(ii) who has parental responsibility for a child under a

parenting order;

should be regarded as having rights of custody in respect of

the child; and

98 Paragraph 111B(4)(d)

Repeal the paragraph, substitute:

(d) subject to any order of a court for the time being in force, a

person:

(i) with whom a child is to spend time under a parenting

order; or

(ii) with whom a child is to communicate under a parenting

order;

should be regarded as having a right of access to the child.

99 Subsection 111B(4) (note)

Repeal the note, substitute:

Note:

The references in paragraphs (b) and (d) to parenting orders also cover

provisions of parenting agreements registered under section 63E (see

section 63F, in particular subsection (3)).

Schedule 8 Removal of references to residence and contact

Part 1 Amendments

162 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

100 Section 111CW

Repeal the section, substitute:

111CW Court proceedings dealing with whom a child spends time

with

(1) A court hearing proceedings under Part VII (Children) or

regulations made for the purposes of section 111B dealing with:

(a) whom a child is to spend time with; or

(b) whom a child is to communicate with;

must admit into evidence and consider the findings (if any) of a

competent authority of a Convention country on the suitability of a

parent as a person for the child to spend time with or communicate

with.

(2) The court may adjourn the proceedings pending the outcome of a

request by a parent of the child to a competent authority of a

Convention country for a finding on the suitability of the parent as

a person for the child to spend time with or communicate with.

(3) On the application of a parent who is an Australian resident

seeking to have, or to continue to have, a child spend time with or

communicate with the parent, a court may:

(a) admit evidence; and

(b) make a finding on the suitability of that parent as a person for

the child to spend time with or communicate with; and

communicate with the person.

101 Paragraph 117A(1)(a)

Repeal the paragraph, substitute:

(a) a court has found, for the purposes of Division 13A of

Part VII, that a person has, by taking a child away from

another person or by refusing or failing to deliver a child to

another person, contravened a parenting order to the extent to

which the order provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person;

Removal of references to residence and contact Schedule 8

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 163

Migration Act 1958

102 Subsection 192(8)

Repeal the subsection, substitute:

(8)

paragraph

(7)(b),

guardian includes a person who is

responsible, under a parenting order (within the meaning of the

Family Law Act 1975), for the detainee's long-term care, welfare

and development.

Schedule 8 Removal of references to residence and contact

Part 2 Savings

164 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Part 2--Savings

103 Definitions

In this Part:

commencement means the commencement of this item.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

104 Saving of regulations

Despite the repeal of a provision of the old Act specified in the

following table, regulations that:

(a) were made for the purposes of that provision of the old Act;

and

(b) were in force immediately before commencement;

continue to have effect on and after commencement as if those

regulations had been made for the purposes of the corresponding

provision of the new Act that is specified in the table in relation to that

provision of the old Act:

Saving regulations made under provisions of old Act

Item

Provision of old Act

Corresponding provision of new

Act

1 definition

overseas child

order in section 70F

definition of overseas child order in

subsection 4(1)

subsection 70N(1)

paragraph 111B(1A)(c)

Relocation of defined terms used in Part VII Schedule 9

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 165

Schedule 9--Relocation of defined terms used

in Part VII

Part 1--Amendments

A New Tax System (Family Assistance) Act 1999

1 Subsection 3(1) (paragraph (b) of the definition of family

law order)

Omit "section 60D", subsection "section 4".

Australian Passports Act 2005

2 Subsection 6(2)

Omit "of section 70F".

Child Support (Assessment) Act 1989

3 Subsection 8A(7) (paragraph (b) of the definition of court

order)

Omit "section 60D", subsection "section 4".

Child Support (Registration and Collection) Act 1988

4 Subsection 4(1) (definition of child of a marriage)

Omit "Part VII of".

5 Subsection 4(1) (definition of step-parent)

Omit "Part VII of".

Family Law Act 1975

6 Subsection 4(1)

Insert:

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Part 1 Amendments

166 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

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.

7 Subsection 4(1)

Insert:

alleged contravention, in Subdivision D of Division 6 of Part VII,

means the alleged contravention because of which the alleged

offender is arrested.

8 Subsection 4(1)

Insert:

alleged offender, in Subdivision D of Division 6 of Part VII,

means the person who is arrested.

9 Subsection 4(1)

Insert:

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.

10 Subsection 4(1)

Insert:

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.

11 Subsection 4(1)

Relocation of defined terms used in Part VII Schedule 9

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 167

Insert:

arresting person means the person who arrests the alleged

offender.

12 Subsection 4(1)

Insert:

artificial conception procedure includes:

(a) artificial insemination; and

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

13 Subsection 4(1)

Insert:

birth includes stillbirth.

14 Subsection 4(1)

Insert:

captain, in relation to an aircraft or vessel, means the person in

charge or command of the aircraft or vessel.

15 Subsection 4(1)

Insert:

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).

16 Subsection 4(1)

Insert:

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

Schedule 9 Relocation of defined terms used in Part VII

Part 1 Amendments

168 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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.

17 Subsection 4(1)

Insert:

child maintenance order has the meaning given by subsection

64B(5).

18 Subsection 4(1)

Insert:

child maintenance provisions, in relation to a parenting plan, has

the meaning given by subsection 63C(5).

19 Subsection 4(1)

Insert:

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.

20 Subsection 4(1)

Insert:

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.

21 Subsection 4(1)

Insert:

Relocation of defined terms used in Part VII Schedule 9

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 169

child welfare provisions, in relation to a parenting plan, has the

meaning given by subsection 63C(4).

22 Subsection 4(1)

Insert:

Commonwealth information order has the meaning given by

subsection 67J(2).

23 Subsection 4(1)

Insert:

community service order has the meaning given by subsection

70NFC(3).

24 Subsection 4(1)

Insert:

contravened an order, in Division 13A of Part VII, has the

meaning given by section 70NAC.

25 Subsection 4(1)

Insert:

de facto relationship means the relationship between a man and a

woman who live with each other as spouses on a genuine domestic

basis although not legally married to each other.

26 Subsection 4(1)

Insert:

Department, in Subdivision C of Division 8 of Part VII, means a

Department of State of the Commonwealth.

27 Subsection 4(1)

Insert:

education includes apprenticeship or vocational training.

28 Subsection 4(1)

Insert:

Schedule 9 Relocation of defined terms used in Part VII

Part 1 Amendments

170 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

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.

29 Subsection 4(1)

Insert:

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.

30 Subsection 4(1)

Insert:

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.

31 Subsection 4(1)

Insert:

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.

32 Subsection 4(1)

Insert:

interests, when used in Part VII in relation to a child, includes

matters related to the care, welfare or development of the child.

33 Subsection 4(1)

Relocation of defined terms used in Part VII Schedule 9

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 171

Insert:

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

34 Subsection 4(1)

Insert:

medical expenses includes medical, surgical, dental, diagnostic,

hospital, nursing, pharmaceutical and physiotherapy expenses.

35 Subsection 4(1)

Insert:

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.

36 Subsection 4(1)

Insert:

member of the family, in relation to a person, has, for the purposes

of the definition of step-parent, paragraphs 60CC(2)(i) and (j) and

section 60CF, the meaning given by subsection (1AB) of this

section.

37 Subsection 4(1)

Insert:

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

(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:

Schedule 9 Relocation of defined terms used in Part VII

Part 1 Amendments

172 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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.

38 Subsection 4(1)

Insert:

parent, when used in Part VII in relation to a child who has been

adopted, means an adoptive parent of the child.

39 Subsection 4(1)

Insert:

parentage testing order has the meaning given by subsection

69W(1).

40 Subsection 4(1)

Insert:

parentage testing procedure means a medical procedure

prescribed, or included in a class of medical procedures prescribed,

for the purposes of this definition.

41 Subsection 4(1)

Insert:

Relocation of defined terms used in Part VII Schedule 9

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 173

parental responsibility, in Part VII, has the meaning given by

section 61B.

42 Subsection 4(1)

Insert:

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

43 Subsection 4(1)

Insert:

pending, in Subdivision E of Division 6 of Part VII, has a meaning

affected by section 65X.

44 Subsection 4(1)

Insert:

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

in a de facto relationship with the parent.

45 Subsection 4(1)

Insert:

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.

46 Subsection 4(1)

Schedule 9 Relocation of defined terms used in Part VII

Part 1 Amendments

174 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Insert:

primary order means an order under this Act affecting children and

includes such order as varied.

47 Subsection 4(1)

Insert:

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.

48 Subsection 4(1)

Insert:

professional ethics includes:

(a) rules of professional conduct; and

(b) rules of professional etiquette; and

(d) standards of professional conduct.

49 Subsection 4(1)

Insert:

reasonable excuse for contravening an order includes the

meanings given by section 70NAE.

50 Subsection 4(1)

Insert:

recovery order has the meaning given by section 67Q.

51 Subsection 4(1) (definition of Registry Manager)

Repeal the definition, substitute:

Registry Manager:

Relocation of defined terms used in Part VII Schedule 9

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 175

(a) except in Subdivision C of Division 8 of Part VII and

section 67Z, means:

(i) in relation to the Family Court--the Registry Manager

of a Registry of the Court; and

(ii) in relation to a court other than the Family Court--the

principal officer of the court or any other appropriate

officer of the court; and

(b) in Subdivision C of Division 8 of Part VII, means:

(i) in relation to the Family Court--the Registry Manager

of the Registry of the Court; and

(ii) in relation to the Family Court of Western Australia--

the Principal Registrar, a Registrar or a Deputy

Registrar, of the court; and

(iii) in relation to any other court--the principal officer of

the court.

52 Subsection 4(1)

Insert:

State, in Subdivision B of Division 13 of Part VII, includes a

Territory.

53 Subsection 4(1)

Insert:

step-parent, in relation to a child, means a person who:

(a) is not a parent of the child; and

(b) is or has been married to a parent of the child; and

a member of the family formed with the parent.

54 After subsection 4(1)

Insert:

(1AB) For the purposes of:

(a) the definitions of family violence and step-parent in

subsection (1); and

(b) paragraphs 60CC(2)(i) and (j); and

(c)

section

60CF;

Schedule 9 Relocation of defined terms used in Part VII

Part 1 Amendments

176 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

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

step-sister of the person; or

(d) an uncle or aunt of the person; or

(e) a nephew or niece of the person; or

Relocation of defined terms used in Part VII Schedule 9

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 177

(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.

55 Section 60D

Repeal the section.

56 Subsection 65R(1)

Omit "(1)".

57 Subsection 65R(2)

Repeal the subsection.

58 Section 67H

Repeal the section.

59 Section 70B

Repeal the section.

60 Section 70F

Repeal the section.

61 Subsection 70L(1) (paragraph (b) of the definition of

Australian child order)

Omit "as defined in section 70B".

62 Subsection 92(1A)

Omit "(within the meaning of Part VII)".

63 Paragraph 109A(1)(a)

Omit "(within the meaning of Division 13A of Part VII)".

64 Subsection 112AP(9) (definition of order under this Act)

Schedule 9 Relocation of defined terms used in Part VII

Part 1 Amendments

178 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Omit "within the meaning of Division 13A of Part VII".

Relocation of defined terms used in Part VII Schedule 9

Savings Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 179

Part 2--Savings

65 Definitions

In this Part:

commencement means the commencement of this Schedule.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

66 Saving of regulations

Despite the repeal of a provision of the old Act specified in the

following table, regulations that:

(a) were made for the purposes of that provision of the old Act;

and

(b) were in force immediately before commencement;

continue to have effect on and after commencement as if those

regulations had been made for the purposes of the corresponding

provision of the new Act that is specified in the table in relation to that

provision of the old Act:

Saving regulations made under provisions of old Act

Item

Provision of old Act

Corresponding provision of new

Act

1 definition

child welfare

law in subsection 60D(1)

definition of child welfare law in

subsection 4(1)

2 definition

child welfare

officer in subsection

60D(1)

definition of child welfare officer in

subsection 4(1)

3 definition

family

violence order in

subsection 60D(1)

definition of family violence order

in subsection 4(1)

4 definition

parentage

testing procedure in

subsection 60D(1)

definition of parentage testing

procedure in subsection 4(1)

Schedule 9 Relocation of defined terms used in Part VII

Part 2 Savings

180 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Saving regulations made under provisions of old Act

Item

Provision of old Act

Corresponding provision of new

Act

paragraph (a) or (b) of the

definition of prescribed

child welfare authority in

subsection 60D(1)

paragraph (a) or (b) of the definition

of prescribed child welfare

authority in subsection 4(1)

6 definition

principal

officer in section 67H

definition of principal officer in

subsection 4(1)

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FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005