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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
FAMILY LAW
AMENDMENT BILL 1999
REPLACEMENT
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf
of the
Government
(Circulated by
authority of the Attorney-General,
the Honourable Daryl
Williams AM QC MP)
ISBN: 0642 451192
TABLE OF CONTENTS
Page
Outline of
Amendments 1
Financial Impact
Statement 3
Regulation Impact
Statement 3
Notes on
Amendments 4
Amendments to Schedule 1 –
Sanctions for failure to comply with
orders
and other
obligations 4
Amendments to Schedule 2 –
Financial
agreements 13
Amendments to Schedule 3
–
Other amendments 16
AMENDMENTS OF THE FAMILY LAW AMENDMENT BILL
1999
OUTLINE OF AMENDMENTS
The
amendments to the Family Law Amendment Bill 1999 (‘the Bill’)
take account of the recommendations and suggestions made by the Senate Legal and
Constitutional Legislation Committee on its consideration of the
Bill.
The objectives of the Bill are set out in the
Explanatory Memorandum to the Bill introduced on 22 September 1999. These
amendments will:
• ensure that Stage 1 of the
new three tier compliance regime fulfils its preventative goal by making it a
more practical and effective stage of the regime. Stage 1 of the new three tier
regime aims to assist people by the provision of information and programs so
that they have a greater understanding of their changed parental
responsibilities. The amendments revise Stage 1 of the compliance regime to
require the inclusion of standard clauses in the order about the obligations the
order creates and the consequences of failing to observe its terms. The
amendments also require that parties be given information about the availability
of programs which will assist them in understanding their changed parental
responsibilities.
• ensure that Stage 2 of
the new compliance regime directs people to a post-separation parenting program
which aims to address the real reason for non-compliance. The amendments will
also make it clear that parties should not be referred to a post-separation
parenting program where the contravention is serious, or where the contravention
is a second or subsequent contravention unless further attendance at a post
separation parenting program is warranted. The amendments require that the
parties attend the provider of a program to make an assessment as to their
suitability for the program, thereby enabling the parties to be streamed into
the most appropriate program. If found suitable, the legislation requires the
person to attend the program;
• give the
court power to order that, in addition to the person who contravened the
parenting order, another party to the parenting order also attend a post
separation parenting program, in circumstances where both parents will benefit
by addressing the real reason for the breakdown in the
orders;
• provide, in Stage 3 of the
compliance regime, that where there has been a serious contravention of a
parenting order, the court should take action. The options available to the
court include the imposition of a community service order, a bond, a fine or, in
the most serious cases, a sentence of imprisonment. In addition, the court will
be able to take action, under Stage 3 of the parenting compliance regime, on
second and subsequent contraventions where it is not appropriate to take action
under Stage 2;
• restructure the provisions
to clarify the standards of proof to be met on the various elements of taking
action under Stage 2 and Stage 3 of the parenting compliance
regime;
• clarify that the capacity to
imprison a person for failing to comply with a maintenance order does not apply
to any failure to satisfy a liability for child support under the Child
Support (Assessment) Act 1989;
• empower
the Family Court and the Federal Magistrates Service to vary or discharge each
other’s community service
orders;
• remove the capacity for parties to
a financial agreement to vary such an agreement. Where changes to the agreement
are desired, parties will have to terminate the existing agreement and make a
new agreement. This will avoid difficulties that might be encountered if there
were to be an original agreement together with a series of amending
agreements;
• provide that, in order for a
financial agreement to be binding, the advice of a legal practitioner will be
mandatory in all cases;
• protect the
interests of third parties where a financial agreement has been terminated, by
giving the court jurisdiction to make orders with respect to that property no
longer covered by the financial agreement The court will be given the power
(along the lines of subsection 87(9) of the Act) to make orders adjusting the
rights of the parties to the agreement and any other interested persons;
• expand the grounds for the setting aside of binding financial agreements in two ways:
– the reference to ‘fraud’ is to be clarified so that the term expressly includes the ‘non-disclosure of property and financial resources’; and
– the phrase ‘...exceptional circumstances
relating to the care, welfare and development of a child of the
marriage...’ is to be replaced with ‘...a material change in
circumstances (being circumstances relating to the care, welfare and development
of a child of the marriage).’ This new approach is made on the basis that
agreements made prior to marriage may have been made when there were no
children. This will require the court to make a finding whether having
responsibility for children brings about a material change in circumstances
sufficient to warrant the court to set the agreement
aside.
• provide for the determination by the
court of issues of the validity, enforceability and effect of binding financial
agreements. Subsection 87(11) makes provision for proceedings on the validity,
enforceability and effect of an approved maintenance agreements to be determined
according to the principles of law and equity, and there is no reason why
similar provision should not be made in respect of the new financial agreements.
Common law and equitable doctrines of particular relevance to binding financial
agreements include mistake, rectification, fraudulent, negligent and innocent
misrepresentation, collateral contract, estoppel and damages for breach;
• amend references to ‘maintenance
orders under Part VIII of the Family Law Act 1975’ in a number of
other Acts to include financial agreements made under new Part
VIIIA;
• remove the restriction from the
associated proceedings provisions of both the Family Law Act 1975 and
Federal Magistrates Act 1999, where the proceeding currently on foot in the
other court is the dissolution of
marriage;
• ensure compatibility between the
appeals provisions of the Family Law Act 1975, the Child Support
(Assessment) Act 1989, the Child Support (Registration and Collection)
Act 1988 and the Federal Magistrates Act
1999;
• clarify that on applications for
the return of a child under the Hague Convention on the Civil Aspects of
International Child Abduction, the regulations can provide the court with a
discretion as to whether the return should be to the country from which the
child was removed, to another appropriate country or to a specific individual;
and
• effect various technical and drafting
changes.
FINANCIAL IMPACT
STATEMENT
The amendments do not have any
financial impact.
REGULATION IMPACT
STATEMENT
The Explanatory Memorandum for
the Bill stated that there would be low impact on business resulting from the
passage of Schedule 2 dealing with binding financial agreements. The amendment
being proposed to that Schedule to require mandatory legal advice in the process
of entering into such agreements will not change that level of impact.
NOTES ON
AMENDMENTS
AMENDMENTS TO SCHEDULE 1 –
CONSEQUENCES OF FAILURE TO COMPLY WITH ORDERS AND THEIR
OBLIGATIONS
AMENDMENT
1
1. This amendment inserts a reference to new
subclause 2(1A) as a consequence of Amendment
2.
AMENDMENT 2
2. This amendment inserts a new subclause 2(1A) to
provide that the complementary amendments in Items 31A and 117 being made by
Schedule 3 of the Bill operate from the date of Royal Assent rather than 28 days
after the Bill receives Royal Assent. Item 31A amends the Family Law Act
1975 and item 117 amends the Federal Magistrates Act 1999 to make it
clear that divorce proceedings and enforcement proceedings are not matters
associated with applications for ancillary relief such as parenting orders and
property orders. Because these amendments clarify the jurisdiction of the
Federal Magistrates Service, they should commence as soon as
possible.
AMENDMENT
3
3. This amendment to the heading of Schedule 1
removes the reference to ‘Sanctions for ...’ and substitutes the
words ‘Consequences of ...’. The changed wording more accurately
reflects the objectives and operation of the new parenting compliance regime, as
revised by these amendments.
AMENDMENT
4
4. This amendment substitutes the outline of the
new Division 13A inserted by Item 3 of Schedule 1 of the Bill. The new
outline reflects the revisions made by these amendments to Stages 2 and 3 of the
parenting compliance regime. In general, Stage 2 of the parenting compliance
regime will apply when a party has failed to observe a parenting order for the
first time. Stage 3 will apply where the contravention is a second or
subsequent contravention or where the contravention is a first contravention but
it is a serious contravention.
AMENDMENT
5
5. Section 63DA, being inserted by the Bill,
provides a means to ensure that where people are making a parenting plan, they
understand their obligations and the consequences that follow should they fail
to observe the plan. This is achieved by requiring the adviser (either the
family and child counsellor, or a family and child mediator, or a legal
practitioner) providing the assistance to inform the persons of the detail of
the obligation that the plan creates on each of the parties, the consequences
that may follow if a person contravenes the requirements of the plan and the
availability of programs to assist persons experiencing difficulties in
complying with the plan.
6. Amendment 5 revises
paragraph 63DA(c) to emphasise that the adviser is to identify programs that are
available to assist a person to comply with the plan.
AMENDMENT 6
7. This
amendment adds a new subsection 63DA(2) enabling the court to produce a document
which sets out the availability of programs to assist people experiencing
difficulties in complying with their parenting agreement. This amendment will
improve the practical operation of the parenting compliance
regime.
AMENDMENT
7
8. This is a technical amendment to subsection
63F(3) to correct a reference to the enforcement provisions with the enactment
in the Bill of the new enforcement provisions relating to children in Division
13A of Part VII.
AMENDMENTS 8 and
9
9. These amendments are technical amendments as a
consequence of the changes to Stage 3 of the parenting compliance regime
contained in section 70NJ (see Amendment
28).
AMENDMENT
10
10. This amendment substitutes a new section
65DA (the preventative stage of the parenting compliance
regime).
11. New subsection 65DA(1) provides that
the new section applies when the court makes a parenting order.
12. New subsection 65DA(2) will ensure that the
obligation to explain the effects of a parenting order (including an order by
consent) can be met by including standard clauses in the order. The amendment
requires the court to draft its parenting orders so that the parties are
informed of the obligations and consequences imposed by the order.
13. New subsection 65DA(3) provides that where a
party is not legally represented in proceedings, it is the duty of the court to
explain the availability of programs to assist people experiencing difficulties
in complying with the parenting order and the availability of remedial orders
for location and recovery of a child if the parenting order is contravened.
14. New subsection 65DA(4) provides that the court
may prepare a document outlining the availability of programs, both in the court
and in the community, to assist parties to understand their responsibilities
under the order. Such a document may also give information about the
availability and use of location and recovery orders, in addition to the use of
the compliance provisions, when a breach of the order occurs. This type of
document would be particularly useful where consent orders are made by the
court, as the parties may not be present when such orders are
made.
15. New subsection 65DA(5) allows the court
to request a legal practitioner representing a party in proceedings to assist in
the explanation of the obligations and consequences of the order. The court may
also request the practitioner to provide details of available programs to help
the person in understanding their obligations and the availability of remedial
orders for location and recovery of a child if the parenting order is
contravened.
16. New subsection 65DA(6) clarifies
that where the court makes a request to a legal practitioner, the legal
practitioner is required to comply with the
request.
17. New subsection 65DA(7) provides that
where the court, or a legal practitioner, fails to provide the assistance
required by section 65DA, that failure does not invalidate the parenting order
that was made.
18. New subsection 65DA(8) makes it
clear that there is an obligation on both the court and any legal practitioner,
when providing the information required, to do so in language likely to be
understood by the parties.
AMENDMENT
11
19. This amendment is a technical consequential
amendment and substitutes references to section 112AD in paragraphs 65Q(1)(c)
and (d) of the Family Law Act 1975 with references to the new Division
13A being inserted by the Bill.
AMENDMENT
12
20. This amendment is a technical consequential
amendment and substitutes references to section 112AD in paragraphs 65U(1)(c)
and (d) of the Family Law Act 1975 with references to the new Division
13A being inserted by the Bill.
AMENDMENT
13
21. This amendment is a technical consequential
amendment and substitutes references to section 112AD in paragraphs 65V(1)(c)
and (d) of the Family Law Act 1975 with references to the new Division
13A being inserted by the Bill.
AMENDMENT
14
22. This amendment removes the reference to
‘Sanctions for...’ and substitutes the reference ‘Consequences
of...’. The changed wording, also made at Amendment 3, more accurately
reflects the objectives and operation of the new parenting compliance regime, as
revised by these amendments.
AMENDMENT
15
23. This amendment removes the provision which
set out the objects of the Division on the basis that the revised stages of the
parenting compliance regime make this provision no longer necessary.
AMENDMENT 16
24. This
amendment omits from section 70NB the definition of applicable Rules of Court as
that term is defined in subsection 4(1) as a consequence of the enactment of the
Federal Magistrates (Consequential Amendments) Act
1999.
AMENDMENT
17
25. This amendment inserts in section 70NB a new
definition of appropriate post-separation parenting program or
appropriate program to clarify that the term relates to a program
available within a reasonable distance from a person's place of residence or
place of work.
AMENDMENT
18
26. This amendment substitutes the definition of
community service order. The new definition expands the types of orders that
can constitute a community service order as set out in subsection 70NK(2A), as
inserted by Amendment 34, to include a work order, an attendance centre order,
an attendance order or a community based
order.
AMENDMENT
19
27. This amendment removes the definition of
participate from section 70NB as that term is no longer used in the Bill.
The term is replaced with a requirement to ‘attend’ post separation
parenting programs on the basis that attendance is capable of a more objective
test. This amendment will make the parenting compliance regime more practical
and workable.
AMENDMENT
20
28. This amendment to the definition of
post-separation parenting program in section 70NB removes the limits on
the types of programs that a party might be ordered to attend. These programs
are designed to assist people to resolve disputes about their parenting
responsibilities with the aim of improving compliance with parenting orders.
AMENDMENT 21
29. This
amendment inserts a definition of the term primary order to make the
drafting of sections 70NF and 70NJ less
complex.
AMENDMENT
22
30. This amendment inserts a reference to a new
subsection 70NE(1A), consequential on Amendment
23.
AMENDMENT
23
31. This amendment inserts a new subsection
70NE(1A) that provides the meaning of ‘reasonable excuse for contravening
an order’. The new subsection clarifies that a person may have a
reasonable excuse for non-compliance if the person did not understand the
obligations imposed by the order and the court was satisfied that the
non-compliance should be excused. This may occur where a person has a limited
understanding of language because they come from a non-English speaking
background or because they have a limited education. This amendment duplicates
the reasonable excuse provision contained in existing subsection
112AC(2).
32. New subsection 70NE(1B),
consequential on new subsection 70NE(1A), requires the court when excusing the
contravention to again explain to the person the obligations created by the
parenting order and the consequences of further non-compliance with the
order.
AMENDMENT
24
33. This amendment inserts a new section 70NEA,
which clarifies that the standard for the determination of whether a reasonable
excuse existed for the contravention is proof on the balance of probabilities.
This amendment duplicates the reasonable excuse provision contained in existing
paragraph 112AD(1A)(b) of the Act.
AMENDMENT
25
34. This amendment revises Stage 2 of the
parenting compliance regime by omitting sections 70NF – 70NI and
substituting sections 70NF – section
70NIB.
New section
70NF
35. New subsection 70NF(1) provides that
Stage 2 of the parenting compliance regime applies
where:
• a court has not previously
determined that the person has contravened a parenting order without reasonable
excuse; or
• there is a second or subsequent
contravention and it is still desirable for the court to make an order that the
person attend a post-separation parenting
program.
36. New subsection 70NF(2) provides that
the court should not make an order to attend a post-separation parenting program
where the person has behaved in a way that showed a serious disregard for
obligations under a parenting order. What amounts to a serious disregard will
depend on the circumstances of the case but, by way of example, could include
the kidnapping of a child or harassment despite repeated warnings and the terms
of the parenting order. In such cases, the court will deal with the matter
under Stage 3 of the parenting compliance regime, which requires the court to
take actions ranging from community service orders to fines and
imprisonment.
New section
70NG
37. The amendments to section 70NG revise
the powers of the court. In circumstances where Stage 2 of the parenting
compliance regime applies, the court may order the contravening party and, if
appropriate, another party to the enforcement proceedings, to attend a
post-separation parenting program. This attendance is to enable the provider of
the program to assess whether the contravening party and any other party ordered
to attend are suitable to attend an identified program. If they are found
suitable to attend the program, they must attend without any further court
order. Also, the court may, either alone or in combination with an order to
attend a post-separation parenting program, make an order to compensate for any
contact lost as a result of the contravention.
38. New subsection 70NG(2) provides that the court
may order another person (usually the other parent) to attend a post-separation
parenting program only where:
• the other
person is a party to the proceedings;
and
• the court is satisfied that the other
person’s attendance at the program is appropriate because of a connection
between the contravention of the primary order and that person’s parental
responsibilities under the order.
39. New
subsection 70NG(3) provides for the notification by the court to the program
provider of the details of the court order.
New
section 70NH
40. Where the provider of a
program decides that a person is unsuitable to attend a post-separation
parenting program, the provider of the program must, under new subsection
70NH(1), notify the court of that
assessment.
41. Where a person fails to attend for
assessment to attend a post-separation parenting program or, having been found
suitable, fails to attend the program, new subsection 70NH(2) requires the
provider of the program to notify the court of the failure to comply with the
order. The court will have to consider what action to
take.
New section
70NI
42. New section 70NI provides that
evidence of anything said or admissions made in the suitability assessment
process for a person to attend a post-separation parenting program, or during
their attendance at such a program, is not admissible in any proceedings in any
court (whether exercising federal jurisdiction or not) or before any person
authorised to take evidence. This provision is consistent with section 19N and
subsection 62F(8) of the Family Law Act 1975 dealing with the
inadmissibility of statements or admissions made during primary dispute
resolution.
New section
70NIA
43. New section 70NIA provides that where
a program provider has informed the court, under paragraph 70NH(2)(a), that a
person who has been assessed as suitable to attend a post-separation parenting
program, or a part of such a program, has failed to attend the program, the
court can make a further order as to that person’s attendance at the
program.
New section
70NIB
44. New section 70NIB is a re-positioning
of the former subsection 70NG(4), consequential on the restructure of
Subdivision B, and is in exactly the same terms as it appeared in the Bill when
it was introduced.
AMENDMENTS 26 and
27
45. These are technical amendments to the
heading to Subdivision C (Stage 3 of the parenting compliance regime) and the
heading to section 70NJ, consequential on the changes made by these amendments
to Stage 3 of the parenting compliance regime.
AMENDMENT 28
46. This
amendment revises subsections 70NJ(1) and (2) in a number of ways to make it
clear that Stage 3 of the parenting compliance regime does not apply where the
circumstances warrant a person’s attendance at a further post separation
parenting program.
47. New subsection 70NJ(1) sets
out the circumstances under which the court must make an order under Stage 3 of
the parenting compliance regime. The circumstances are
that:
• there has been no previous court
order for a contravention of the parenting order but the court is satisfied that
the behaviour of the parent is such as to show a serious disregard for his or
her parenting obligations; or
• the court has
determined that a party has previously contravened an order without reasonable
excuse.
48. New subsection 70NJ(2) allows the court
to determine that, although a party has previously contravened an order without
reasonable excuse, it would be more appropriate to deal with the contravention
under Stage 2 of the parenting compliance
regime.
49. New subsection 70NJ(2A) provides that
where Stage 3 of the parenting compliance regime applies to a particular
contravention, the court must make the most appropriate of the orders set out in
subsection 70NJ(3).
50. New subsection 70NJ(2B)
clarifies that the court can make an order under Stage 3 of the parenting
compliance regime regardless of
whether:
• the parenting order to which the
contravention relates was made prior to the commencement of the new regime;
or
• the contravention occurred prior to the
commencement of the new regime.
AMENDMENT
29
51. This amendment deletes the words
‘sanctions that are available to be imposed’ and replaces them with
‘orders that are available to be made’, consequential on Amendment
28 above.
AMENDMENT
30
52. Subsection 70NJ(5) of the Bill provides that
the court must consider the best interests of the child as the paramount
consideration when varying a parenting order under paragraph 70NJ(3)(c).
Subparagraphs 70NJ(5)(a) and (c) are amended, consequential on the replacement
of ‘participate’ with ‘attend’ by Amendment
19.
53. The amendment to subparagraph 70NJ(5)(b) is
a technical amendment, consequential on the change to the definition of
appropriate post-separation parenting program or appropriate
program contained in Amendment 17.
AMENDMENT
31
54. In this amendment, the word
‘intentional’ in subsection 70NJ(6) has been substituted for
‘wilful’. Upon the enactment of the Criminal Code Act 1995
provisions with references to ‘wilful’ are either being deleted or
changed to ‘intentional’. To ensure that both the courts and the
parties are aware, from the wording of the Family Law Act 1975, that
imprisonment under paragraph 70NJ(3)(e) applies not only in cases where the
contravention arose from fraudulent activity, but also where the contravention
arose from intentional activity, the word ‘intentional’ has replaced
the word ‘wilful’. This change is not intended to have any effect
on the interpretation of the provision, and in particular is not intended to
expand the grounds on which a court might imprison someone for a contravention
of a child maintenance order.
55. This amendment
also inserts a new subsection 70NJ(6A), which clarifies that the operation of
the new compliance regime, and particularly orders of imprisonment, does not
extend to non-compliance with assessments, departure orders or lump sum
maintenance orders made under the Child Support (Assessment) Act
1989.
AMENDMENTS 32 and
33
56. These amendments are technical amendments
required, consequential on the substitution of subsections 70NJ(1) and (2) by
Amendment 28.
AMENDMENT
34
57. This amendment inserts new subsection
70NK(2A) that defines community service order for the purposes of the section.
The definition contains most of the alternative sentencing options presently
referred to in existing subsection 112AG(3) of the Act. Although the current
arrangements made between the Commonwealth and the States and Territories do not
extend beyond the making of a community service order, the capacity to make
arrangements for the other alternative sentences is desirable to ensure that
there are more options available to the court in dealing with failing to comply
with parenting orders.
58. The Commonwealth will be
moving swiftly to commence negotiations with the States and Territories for
these alternatives for dealing with contraventions of parenting orders and to
renegotiate the existing arrangements under section
112AN.
AMENDMENT 35
59. This amendment to section 70NL substitutes new
paragraphs (a) and (b) to replace old paragraphs (a) to (c). New paragraph
70NL(a) gives the Family Court and the Federal Magistrates Service the capacity
to vary or discharge each other’s community service orders. Paragraph
70NL(b) is in the same terms as paragraph 70NL(c) in the Bill as introduced.
This amendment will improve the practical operation of both the Family Court and
the Federal Magistrates Service by enabling community service orders made by one
court to be varied or discharged by the other
court.
AMENDMENTS 36 and
37
60. Item 9 of Schedule 1 inserts a rule making
power in relation to the general enforcement of orders under the Act. The
provision makes references to the Child Support (Registration and Collection)
Act 1988 in paragraph 109A(1)(c) and subparagraph 109A(2)(c)(iv). These
amendments insert into that paragraph and subparagraph references to the
enforcement of orders made under the Child Support (Assessment) Act 1989
to ensure that there is comprehensive coverage of the new enforcement
rules.
61. This amendment clarifies that provision
can be made in the Rules of Court to ensure compliance with orders for the
imprisonment of persons who have intentionally or fraudulently failed to comply
with court orders. More detailed explanation is provided under the notes to
Amendment 31.
AMENDMENT
38
62. This amendment is consequential on the
substitution of ‘intentional’ for ‘wilful’ in Amendment
31.
AMENDMENTS TO SCHEDULE 2 – FINANCIAL
AGREEMENTS
AMENDMENT
39
63. This amendment revises the definition of
‘financial agreement’ by removing the reference to ‘agreement
as varied’, to clarify that there cannot be any more than one agreement
between the parties at any one time. This will improve the practical operation
of this measure by avoiding the confusion of interpreting a primary document and
its variations.
AMENDMENT
40
64. This amendment inserts a new Item 6A of
Schedule 2, which adds new subsection 85A(3). New subsection 85A(3) clarifies
that where an ante-nuptial or post-nuptial settlement also satisfies the
requirements for a binding financial agreement, the court cannot make an order
under section 85A in respect of such settlements. This amendment means that
when a document could be characterised as either a nuptial settlement or a
financial agreement, the document is to be treated as a financial
agreement.
AMENDMENT
41
65. This amendment corrects a drafting error in
the definition of ‘dealt with’ in section 90A.
AMENDMENTS 42, 46 and
50
66. These amendments reinforce the fact that
variations of financial agreements are not permitted, by ensuring that only one
financial agreement can be in force at any particular
time.
AMENDMENTS 43, 47 and
51
67. These amendments clarify that financial
agreements can deal with property that was acquired by either, or both, of the
parties after the agreement was made and prior to the dissolution of the
marriage.
AMENDMENTS 44, 48 and
52
68. These amendments clarify that where a
financial agreement contains matters other than those specified in subsections
90B(2), 90C(2) and 90D(2), those additional matters must be incidental, or
ancillary to, the matters specified in these
subsections.
AMENDMENTS 45, 49 and
53
69. These amendments are consequential to
Amendments 42, 46 and 50, which provide that only one financial agreement can be
in force at any particular time.
AMENDMENT
54
70. Section 90F provides that an agreement that
purports to exclude or limit the court’s jurisdiction in relation to the
maintenance of a party to a marriage is of no effect where the party would have
been unable to support themselves without an income tested pension, allowance or
benefit. The assessment of whether or not the party would be able to support
themselves without an income tested pension, allowance or benefit needs to be
made at the time of the breakdown of the marriage. This amendment will permit
the court to exercise jurisdiction only where the agreement was entered into
after the breakdown or dissolution of a marriage. The jurisdiction of the court
is not required where the agreement is made before the breakdown of the
marriage.
AMENDMENT
55
71. This is an amendment consequential upon the
change made by Amendment 54.
AMENDMENT
56
72. Section 90G sets out the circumstances that
need to be satisfied before a financial agreement under new Part VIIIA will be
binding on the parties. This amendment substitutes a new paragraph 90G(1)(b)
making independent legal advice compulsory for such agreements and clarifying
the nature of the advice to be provided. This approach is along the lines of
paragraph 47(1)(d) of the Property (Relationships) Act 1984
(NSW).
AMENDMENT
57
73. Section 90J makes provision for the
termination of a financial agreement between the parties to a marriage. The
formalities for termination are broadly similar to those for the making of a
binding financial agreement. This amendment to paragraphs 90J(2)(b) and (c)
inserts termination formalities that mirror the approach taken by Amendment 56
in relation to the making of a financial agreement.
AMENDMENT 58
74. This
amendment inserts a new subsection 90J(3) to ensure the court has power, where
an agreement has been terminated, to protect the rights of both the parties to
the agreement and any third parties who may have had dealings in relation to
property that was the subject of the agreement. The amendment gives the court
power in these circumstances to make such orders, including an order for the
transfer of property, as it considers just and equitable. The amendment
reflects the approach taken by existing subsection 87(9) of Part VIII of the Act
in dealing with property covered by an approved maintenance agreement that has
subsequently been revoked.
AMENDMENT
59
75. This amendment expressly provides that, for
the purposes of setting aside a financial agreement, the ground of fraud extends
to the non-disclosure of a material
matter.
76. Paragraph 90K(1)(b) sets out the
proposed grounds for setting aside a financial agreement, which include that the
agreement is void, voidable or unenforceable. These grounds reflect the
principles of common law and equity, under which an agreement would fail because
of lack of certainty, lack of intention to enter legal relations, or because the
agreement is affected by duress, undue influence, unconscionability,
misrepresentation or operative mistake.
AMENDMENT
60
77. This amendment substitutes a new paragraph
90K(1)(d). This amendment replaces the test of ‘...exceptional
circumstances relating to the care welfare and development of a child of the
marriage...’ with a test of ‘...a material change in
circumstances...’. This new approach is made on the basis that agreements
made prior to marriage may have been made when there were no children. This
will require the court to make a finding as to whether having responsibility for
children brings about a material change in circumstances sufficient to warrant
the court’s intervention to set the agreement
aside.
AMENDMENT
61
78. This amendment inserts a new section 90KA.
Section 90KA will provide that the validity, enforceability and effect of a
maintenance agreement shall be determined by the court according to the
principles of law and equity. Common law and equitable doctrines of particular
relevance to maintenance agreements include mistake, rectification, fraudulent,
negligent and innocent misrepresentation, collateral contract, estoppel and
damages for breach. The new provision reflects a like provision in existing
subsection 87(11) of Part VIII of the
Act.
AMENDMENTS TO SCHEDULE 3 –
OTHER AMENDMENTS
A New Tax System (Family
Assistance) Act 1999
AMENDMENTS 62, 63, 64 and
65
79. Subsection 3(1) of the A New Tax System
(Family Assistance) Act 1999 defines ‘maintenance agreement’ as
including a reference to maintenance agreements under the Family Law Act
1975. These amendments of the A New Tax System (Family Assistance) Act
1999 include in that Act a reference to financial agreements in the
definition of maintenance agreement, consequential on the new financial
agreements provisions in Schedule 2 of the
Bill.
Bankruptcy Act
1966
AMENDMENT
66
80. Section 5 of the Bankruptcy Act 1966
defines ‘maintenance agreement’ as including a reference to
maintenance agreements under the Family Law Act 1975. This amendment to
the Bankruptcy Act 1966 includes a reference to financial agreements in
the definition of maintenance agreement, consequential on the enactment of the
new financial agreements provisions under Schedule 2 of the
Bill.
Child Support (Assessment) Act
1989
AMENDMENT
67
81. This amendment replaces Item 1 of Schedule 3
of the Bill to insert, in paragraph 84(7)(b) of the Child Support
(Assessment) Act 1989, a reference to financial agreements, consequential on
the financial agreements provisions under Schedule 2 of the
Bill.
AMENDMENT
68
82. This amendment replaces Item 4 of Schedule 3
of the Bill to substitute additional subsections in section 102 of the Child
Support (Assessment) Act 1989 so that the appeals provisions in the Child
Support (Assessment) Act 1989 reflect the appeals provisions contained in
the Act. It also reflects the appeals provisions inserted in the Act by the
Federal Magistrates (Consequential Amendments) Act 1999 relating to
appeals to the Family Court from decisions of the Federal Magistrates
Service.
AMENDMENT
69
83. This amendment includes references to
financial agreements in section 152 of the Child Support (Assessment) Act
1989, consequential on the financial agreements provisions under Schedule 2
of the Bill.
Child Support (Registration and
Collection) Act 1988
AMENDMENT
70
84. This amendment includes references to
financial agreements in section 4 of the Child Support (Registration and
Collection) Act 1988, consequential on the financial agreements provisions
under Schedule 2 of the Bill.
AMENDMENT
71
85. This amendment replaces Item 5 of Schedule 3
of the Bill to substitute additional subsections in section 107 of the Child
Support (Registration and Collection) Act 1988 so that the appeals
provisions under the Child Support (Registration and Collection) Act 1988
reflect the general appeals provisions contained in the Act. It also reflects
the appeals provisions inserted in the Family Law Act 1975 by the
Federal Magistrates (Consequential Amendments) Act 1999 relating to
appeals to the Family Court from decisions of the Federal Magistrates
Service.
Family Law Act 1975
AMENDMENT
72
86. Subsections 19D(5) and 19E(2) respectively
provide for any arbitral award made in court referred or private arbitration to
be registered and enforced, as if the award was a decree of the court, in a
court exercising jurisdiction under the Family Law Act 1975. The process
to be followed for registration is currently to be provided by the applicable
Rules of Court of the Family Court or the Federal Magistrates Service. This
amendment substitutes the making of Regulations in lieu of Rules of Court as the
method for establishing the registration process. This new approach is the same
as that adopted under the Act for establishing the registration process in
respect of the enforcement of overseas custody and maintenance
orders.
AMENDMENTS 73 and
74
87. These amendments to Item 22 of Schedule 3 of
the Bill reflect those made in Amendment 59 about the setting aside of financial
agreements. Amendments 72 and 73 provide for consistency between the setting
aside provisions for arbitral awards and those for financial
agreements.
AMENDMENT
75
88. Existing section 26B of the Act provides the
Family Court with the power, by making Rules of Court, to delegate to Judicial
Registrars all of its powers except the power to make ‘excluded child
orders’. Item 30 of Schedule 3 of the Bill excludes from the delegation
powers the capacity for Judicial Registrars to make orders setting aside a
registered arbitral award. It should be noted that paragraph 178 of the
Explanatory Memorandum to the Bill, dealing with that Item, incorrectly stated
that the Item provided the power to set aside such
awards.
89. Subsection 26B(1A) defines
‘excluded child orders’ for the purposes of that section to include
any final parenting order, such as a residence order, a contact order and a
specific issues order. Amendment 74 inserts new Item 30A in Schedule 3 of the
Bill to allow the delegation to Judicial Registrars of the power to make a
compensatory contact order, where such an order is appropriate under new
Division 13A of Part VII. It also restructures the provision for ease of
reading.
AMENDMENT
76
90. Existing section 33A, which was inserted
into the Act by the Federal Magistrates (Consequential Amendments) Act
1999, precludes proceedings being instituted in the Family Court where there
is an associated matter pending in the Federal Magistrates Service. However, by
virtue of existing subsection 33A(2) of the Act, the restriction does not apply
to proceedings relating to compliance with parenting orders or proceedings for
failure to comply with a court order.
91. This
amendment makes two changes to existing subsection 33A(2) of the Act. The first
change is to remove the restriction on instituting proceedings where the
existing proceedings in the other court is an application for dissolution of a
marriage. This is because in nearly all cases proceedings for dissolution are a
formality and should not have a restrictive procedural connection with ancillary
issues, such as property matters or parenting disputes.
92. The general enforcement provisions of the Act,
Part XIII, are not specified in subsection 33A(2) of the Act. The second part
of this amendment corrects that omission.
AMENDMENT
77
93. Existing section 44 of the Act sets out the
various times within which applications can be made to the court. Amendment 76
inserts new subsection 44(3B) that specifies the time restriction for the
institution of maintenance and property proceedings
where:
• a financial agreement has been set
aside under section 90K; or
• a financial
agreement has been found to be invalid under section
90KA.
94. The time limits specified are consistent
with those that currently apply where a section 87 maintenance agreement has
been revoked.
AMENDMENT
78
95. Existing subsection 45A(8) of the Act,
inserted by the Federal Magistrates (Consequential Amendments) Act 1999,
deals with the mandatory transfer of proceedings from the Federal
Magistrates Service to the Family Court. That subsection provides that the
section does not apply to proceedings under Part XIIIA.
96. This amendment adds, to subsection 45A(8), a
reference to Part XIII with the effect that transfer is not required in any
enforcement proceeding.
AMENDMENT
79
97. Existing subdivision F of Division 7 of Part
VII of the Act deals with the circumstances in which an order for child
maintenance ceases to be in force. Section 66W makes provision for the recovery
of any arrears of child maintenance that were due at the time the order ceased
to be in force. In Heethuis v Van Genderen (1999) 24 Fam LR 396 the
Family Court held that, if the court order stopped being in force, the court did
not have the power to vary the maintenance order under section 66S. However,
whilst the order continues for the purposes of recovery of arrears by virtue of
section 66W, there was no provision for the variation or discharge of those
arrears. The effect of this can be particularly harsh on liable
parents.
98. Amendment 78 inserts new Items 56A and
56B to overcome the concern expressed in that case. Item 56A replaces existing
section 66W. New subsection 66W(1) repeats the wording of the original section
with the addition of references to other provisions of the Act that provide for
the cessation of the operation of the maintenance order. New subsection 66W(2)
provides that, where arrears of maintenance have accrued at the date of the
cessation of the maintenance order, the court may order the discharge, or
variation, of the arrears.
99. Item 56B provides
that the court is able to make orders in respect of arrears outstanding at or
after the date of commencement of new section
66W.
AMENDMENT
80
100. This is a technical amendment to paragraph
67X(3)(a) of the Act, which replaces a monetary penalty with the corresponding
penalty units formula provided in subsection 4AA(1) of the Crimes Act
1914. It also adds a Note to direct people to that section to ascertain the
value of a penalty unit.
AMENDMENT
81
101. This amendment repeals existing section
69MA of the Act, which allows the Federal Magistrates Service to hear residence
matters only with the consent of the parties or where the parties are seeking
consent orders. This amendment gives the Federal Magistrates Service
unrestricted jurisdiction to make orders regarding the residence of children.
As a consequence, the residence jurisdiction of the Federal Magistrates Service
will be concurrent with that of the Family Court of
Australia.
AMENDMENT
82
102. Item 76 of Schedule 3 of the Bill inserts
new section 94AAA of the Act to provide for appeals to the Family Court from the
Federal Magistrates Service. Section 94AAA of the Act, which was drafted before
the passage of the Federal Magistrates Act 1999, is not consistent with
the approach taken in that Act to the differentiation between the rules of court
to be used in the Family Court and the Federal Magistrates
Service.
103. This amendment replaces section 94AAA
with new subsections 94(2A) to (2F), to update the appeals provisions following
the passage of the Federal Magistrates Act
1999.
AMENDMENT
83
104. This amendment corrects a drafting
error.
AMENDMENT
84
105. Order 23, rule 5(5) of the Family Court
Rules provides that a child shall not be called as a witness or remain in court
without leave. Order 23, rule 5(6) only allows a child (other than a child who
is, or is seeking to become, a party to the proceedings) to swear an affidavit
for the purposes of a proceeding with the leave of the court. These rules have
a sound policy basis.
106. In Renshaw and
Reschke (1997) 22 Fam LR 354, a husband applied to call his 16 year old
son as a witness. Counsel for the husband argued that Order 23, rule 5(5) was
beyond the rule-making power contained in section 123 of the Act. The Full
Court did not have to decide the issue but commented there was some force to the
argument.
107. This amendment inserts new section
100B to overcome the doubts expressed by the court in Renshaw and
Reschke, and to deal with the issue of the swearing of affidavits. It does
so using three new subsections. Subsection 100B(1) deals with the issue of a
child swearing an affidavit. It follows the approach of Order 23, rule 5(6).
However, rather than requiring the leave of the court, an order of the court
must be obtained. There is no practical difference, in terms of the procedure
that must be followed by a party to proceedings, between seeking the leave of
the court and obtaining an order of the court. To ensure consistency,
therefore, between the subsections of new section 100B, the requirement to
obtain a court order has been applied to
both.
108. New subsection 100B(2) provides for the
court, where it considers that course is appropriate, to make an order allowing
a child to be called as a witness, or to be present, during proceedings in the
court.
109. The issue of when it might be
appropriate for a child to give evidence or be present in family law proceedings
was considered in early cases. In the case of In the Marriage of Borzak
(1979) 5 Fam LR 571 at 575, Wood SJ said ‘the prohibition against
calling a child as a witness is designed to protect the child from giving
evidence for or against either of his parents’. Matters that might be
taken into account in exercising the discretion include: the nature and degree
of cogency of the evidence that the child might provide; the availability of
such evidence from alternative sources; the maturity and background of the
child; and the relationship of the child to persons affected by those
proceedings.
110. New subsection 100B(3) makes it
clear that the provision applies to all persons under the age of 18
years.
AMENDMENTS 85, 86, 87 and
88
111. The 1986 Hague Abduction Convention
Regulations giving effect to the Hague Abduction Convention provide for the
return of the child to the applicant. The Regulations were amended in 1995 to
provide that return was to be ‘... to the country in which he or she
habitually resided immediately before his or her removal or retention’.
However, the Full Court of the Family Court, in Laing v The Central
Authority (1999) FLC ¶92-849 held, by majority, that each case had to
be considered on its own facts and this could mean return to a Central Authority
or an individual.
112. Paragraph 110 of the
Explanatory Report to the Hague Abduction Convention, states
-
The Convention did not accept a proposal to the
effect that the return of the child should always be to the State of its
habitual residence before its removal. Admittedly, one of the underlying
reasons for requiring the return of the child was the desire to prevent the
‘natural’ jurisdiction of the courts of the State of the child's
residence being evaded with impunity, by force. However, including such a
provision in the Convention would have made its application so inflexible as to
be useless. In fact, we must not forget that it is the right of children not to
be removed from a particular environment, which sometimes is a basically family
one, which the fight against international child abduction seeks to protect.
Now, when the applicant no longer lives in what was the State of the child's
habitual residence prior to its removal, the return of the child to that State
might cause practical problems which would be difficult to resolve. The
Convention's silence on the matter must therefore be understood as allowing the
authorities of the State of refuge to return the child directly to the
applicant, regardless of the latter's present place of
residence.
113. These amendments bring the
provisions into line with the interpretation of the Convention expressed in the
Explanatory Report. This will enable the making of regulations to provide for
the return of the child under the
Convention.
AMENDMENT
89
114. This is a technical amendment to subsection
112AH(8) of the Act, which replaces a monetary penalty with the corresponding
penalty units formula provided in subsection 4AA(1) of the Crimes Act
1914. It also adds a Note to direct people to that section to ascertain the
value of a penalty unit.
AMENDMENT
90
115. This is a drafting amendment to make a
technical correction to the proposed subsection 117C(2A) of the
Act.
Federal Magistrates Act
1999
AMENDMENT
91
116. Existing subsection 19(1) of the Federal
Magistrates Act 1999 precludes proceedings being instituted in the Federal
Magistrates Service where there is an associated matter pending in the Family
Court. However, by subsection 19(2), the restriction does not apply to
enforcement proceedings or proceedings for failing to comply with a court
order.
117. This amendment mirrors the changes made
to subsection 33A(2) of the Act by Amendment
75.
118. The general enforcement provisions of the
Family Law Act, Part XIII, are not specified in subsection 19(2). The second
part of this amendment corrects that omission.
AMENDMENTS 92 and
93
119. These amendments make the same correction
to the Notes at the end of existing subsections 65(3) and 78(1) of the Act as
are being made by Amendment 77.
Veterans’
Entitlements Act 1986
AMENDMENT
94
120. Division 10 of Part IIIB of the
Veterans’ Entitlements Act 1986 makes provision for the spreading
of capitalised maintenance income received by the veteran so that it is taken
into account over the whole of the period in respect of which it is received.
Capitalised maintenance is defined by reference to a ‘maintenance
agreement’ under the Act. This amendment inserts new subparagraph
51(3)(a)(ia) to include provision for the financial agreements contained in
Schedule 2 of the Bill.