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FAMILY LAW LEGISLATION AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2011 Explanatory Memorandum

FAMILY LAW LEGISLATION AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2011







                                  2010-2011






               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA






                          HOUSE OF REPRESENTATIVES







                      Family Law Legislation Amendment
               (Family Violence and Other Measures) Bill 2011






                           EXPLANATORY MEMORANDUM









            (Circulated by the authority of the Attorney-General,
                        the Hon Robert McClelland MP)
Family Law Legislation Amendment (Family Violence and Other Measures) Bill
2011


Outline


The Family Law Legislation Amendment (Family Violence and Other Measures)
Bill 2011 (the 'Family Violence Bill') will amend the Family Law Act 1975
(Cth) to provide better protection for children and families at risk of
violence and abuse.  The Bill also makes several technical amendments which
correct drafting and minor policy oversights and provide other efficiencies
for the courts and litigants.

The Family Violence Bill responds to reports received by the Government
into the 2006 family law reforms and how the family law system deals with
family violence.  The reports indicate that the Act fails to adequately
protect children and other family members from family violence and child
abuse.  These reports are the Evaluation of the 2006 family law reforms by
the Australian Institute of Family Studies (AIFS); Family Courts Violence
Review by the Honourable Professor Richard Chisholm AM; and Improving
responses to family violence in the family law system: An advice on the
intersection of family violence and family law issues by the Family Law
Council.

Other research reports on family violence, shared care and infant
development further provide a strong evidence base for reform.  These
reports are: Family Violence and Family Law in Australia: the Experiences
and Views of Children and Adults from Families who Separated Post-1995 and
Post-2006 collaboratively produced by Monash University, the University of
South Australia and James Cook University; Shared Care Parenting
Arrangements since the 2006 Family Law Reforms by the Social Policy
Research Centre of the University of New South Wales; and Post-separation
parenting arrangements and developmental outcomes for infants and children
by Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wills and
Caroline Long.

The safety of children is of critical importance and the Government takes
the issue of addressing and responding to family violence and child abuse
very seriously.  The family law system must prioritise the safety of
children to ensure the best interests of children are met.  The Family
Violence Bill sends a clear message that family violence and child abuse
are unacceptable.

These amendments address issues of significant community concern by
strengthening the role of family courts, advisers and parents in preventing
harm to children while continuing to support the concepts of shared
parental responsibility and shared care, where this is safe for children.

The key amendments made by the Family Violence Bill will:

    . prioritise the safety of children in parenting matters;

    . change the definitions of 'abuse' and 'family violence' to better
      capture harmful behaviour;

    . strengthen advisers obligations by requiring family consultants,
      family counsellors, family dispute resolution practitioners and legal
      practitioners to prioritise the safety of children;

    . ensure the courts have better access to evidence of abuse and family
      violence by improving reporting requirements; and

    . make it easier for state and territory child protection authorities to
      participate in family law proceedings where appropriate.
The Family Violence Bill retains the substance of the shared parenting laws
introduced in the Family Law Amendment (Shared Responsibility) Act 2006
(Cth) and continues to promote a child's right to a meaningful relationship
with both parents where this is safe for the child.

Schedule 2 of the Family Violence Bill contains several other amendments to
the Act.  These will clarify the Family Court's power to dismiss appeals
and to delegate procedural applications in appeals to Registrars; align the
Family Court's and the Federal Magistrate Court's provisions on
administering oaths and affirmations and swearing affidavits; clarify that
parentage testing orders and parentage declarations are not parenting
orders; provide the Family Court Judges with a rule-making power relating
to bankruptcy proceedings transferred to the Family Court under section 35A
of the Bankruptcy Act 1966 (Cth), and correct drafting and minor policy
oversights and provide other efficiencies for the courts and litigants.

Schedule 2 to the Family Violence Bill also makes consequential amendments
to the Bankruptcy Act to reflect the proposed power to be given to Family
Court Judges to make rules relating to bankruptcy proceedings transferred
to the Family Court under section 35A of that Act.

Financial Impact


The amendments in this Bill have negligible financial implications.


NOTES ON CLAUSES


Clause 1: Short title


   1. This clause provides that the Bill, once enacted, will be cited as the
      Family Law Legislation Amendment (Family Violence and Other Measures)
      Act 2011.

Clause 2: Commencement


   2. This clause provides for the commencement of the Act.  Sections 1 to 3
      of the Act will commence on the day the Act receives the Royal Assent.
       Schedule 1 of the Act will commence on a single day to be fixed by
      Proclamation, but not more than 6 months after receiving the Royal
      Assent.  Items 1, 2 and 30 of Schedule 2 will commence on the 28th day
      after the Act receives the Royal Assent.  Items 3 to 29 of Schedule 2
      will commence on the day the Act receives the Royal Assent.  Part 2 of
      Schedule 2 will commence on the day the Act receives the Royal Assent.

Clause 3: Schedules


   3. This clause provides that each Act specified in a Schedule to the Bill
      will be amended or repealed as set out in the Schedules.

Schedule 1 - Amendments relating to family violence

Part 1 - Amendments

Family Law Act 1975

Item 1:  Subsection 4(1) (definition of abuse)


   4. Item 1 repeals the definition of 'abuse' in relation to a child in
      subsection 4(1) of the Act and replaces it with a new definition of
      'abuse'.  The definition will include assault; sexual abuse and
      exploitation; causing a child to suffer serious psychological harm
      including where the child is exposed to family violence; and serious
      neglect of the child.

   5. As with the existing definition of 'abuse', proposed paragraph (a)
      provides that an assault, including a sexual assault, amounts to
      abuse.  However, the new definition will remove the requirement for
      the assault to be an offence under an enforceable law in a State or
      Territory.  This means that those working with the Act, including
      courts, legal practitioners and family members will not be required to
      have regard to the terms of State and Territory laws when considering
      whether abuse has occurred.  The new definition will remove
      uncertainty about knowing the elements of an offence and whether an
      offence has been committed.

   6. Paragraph (b) of the definition, which deals with sexual exploitation,
      is based on the existing definition but contains minor drafting
      changes that reflect current drafting practice.

   7. New paragraph (c) of the definition provides that abuse involves
      causing the child to suffer serious psychological harm including by
      the child being exposed to family violence.  This reflects current
      social science and approaches to child protection, which indicate that
      exposure to violence threatens a child's physical, emotional,
      psychological, social, education and behavioural wellbeing.

   8. New paragraph (d) of the definition extends the definition to serious
      neglect of the child.  The meaning of neglect is not defined and
      therefore takes its ordinary meaning.  Neglect encompasses a range of
      acts of omission including failure to provide adequate food, shelter,
      clothing, supervision, hygiene or medical attention.

Item 2:  Subsection 4(1)

   9. Item 2 amends subsection 4(1) to include a reference to the definition
      of 'exposed' in new section 4AB (definition of family violence etc)
      proposed by item 8.   This amendment follows existing drafting of the
      Act which places more extensive definitions at the end of the
      interpretation section.

Item 3:  Subsection 4(1) (definition of family violence)

  10. Item 3 amends subsection 4(1) to include a signpost to the new
      definition of 'family violence' in new section 4AB (definition of
      family violence etc) proposed by item 8.  This amendment follows
      existing drafting of the Act which places more extensive definitions
      at the end of the interpretation section.

Item 4:  Subsection 4(1) (definition of member of the family)

  11. Item 4 repeals the existing definition of 'member of the family' in
      subsection 4(1) and inserts a new definition which refers the reader
      to revised subsection 4(1AB).  This amendment moves the description of
      the purposes for which the definition applies to the substantive
      definition.  This follows existing drafting of the Act which places
      more extensive definitions at the end of the interpretation section.

Item 5:  Subsection 4(1) (paragraph (a) of the definition of Registry
Manager)

  12. Item 5 amends the general definition of 'Registry Manager' to carve
      out proposed section 67ZBA from its meaning.  In addition to
      amendments made by item 34, this change helps to ensure that the
      specialised definition of 'Registry Manager' in subsection 67Z(4) of
      the Act continues to apply to section 67Z (dealing with allegations of
      child abuse) and is extended to proposed section 67ZBA (dealing with
      allegations of family violence).  The same meaning is applied to both
      provisions to ensure consistent reporting obligations in relation to
      child abuse and family violence and to avoid duplication.

Item 6:  Paragraph 4(1AB)(a)

  13. Item 6 amends paragraph 4(1AB)(a) to ensure that the definition of
      'member of the family' is incorporated into the new definition of
      'family violence' in proposed section 4AB.  This amendment is
      consequential to items 3 and 8, which moves the definition of 'family
      violence' from subsection 4(1) to proposed subsection 4AB.

Item 7:  Paragraph 4(1AB)(c)

  14. Item 7 amends paragraph 4(1AB)(c) to ensure that the definition of
      'member of the family' is applied to obligations in new section 60CH
      (to inform the court of care arrangements under child welfare laws)
      and new section 60CI (to inform the court of notifications to, and
      investigations by, prescribed State or Territory agencies).  This
      amendment is consequential to item 21, which creates proposed
      sections 60CH and 60CI.

Item 8: After section 4AA

  15. Item 8 inserts new section 4AB which will define 'family violence' and
      when a child is 'exposed' to family violence.

  16. New subsection 4AB(1) defines 'family violence' as violent,
      threatening or any other type of behaviour that coerces or controls a
      family member or which causes the family member to be fearful.
      Behaviour that fits within the general characterisation set out in the
      definition will be captured.  The definition is intended to cover a
      wide range of behaviour including assault, sexual assault or other
      sexually abusive behaviour, stalking, emotional and psychological
      abuse, and economic abuse.  The definition encompasses patterns of
      family violence and single violent events.

  17. New subsection 4AB(2) provides a non-exhaustive list of examples that
      fit within the definition of 'family violence'.  The examples
      recognise the wider range of behaviour experienced by victims of
      family violence.  The inclusion of examples will not exclude any
      behaviour that is within the general characterisation set out in
      subsection 4AB(1).  For example, threats of suicide and self-harm are
      not mentioned in the definition or examples of 'family violence', but
      will be captured by the definition where the threat is intended to
      coerce, control or cause a family member to be fearful.

  18. New subsection 4AB(3) defines the term 'exposed'.  This new term
      provides that a child is 'exposed' to family violence if the child
      sees or hears or otherwise experiences the effects of family violence.
       Proposed subsection 4AB(4) will provide a non-exhaustive list of
      example situations where a child may be exposed to family violence.
      The examples clarify that there does not have to be intent for a child
      to hear, witness or otherwise be exposed to family violence.

Item 9:  Subsection 12E(3) (note)

  19. Item 9 repeals the note under existing subsection 12E(3), which deals
      with the obligations on legal practitioners to give their clients
      documents containing information prescribed under section 12D of the
      Act.  The substitute note refers the reader to new general obligations
      for advisers introduced by new section 60D proposed by item 22 and to
      information giving obligations under section 63DA of the Act.

Item 10:  Subsection 12G(1)(note)

  20. Item 10 repeals the note under subsection 12G(1), which deals with
      obligations on family counsellors, family dispute resolution
      practitioners to give a married person who is considering instituting
      certain proceedings (and, in appropriate cases, that person's spouse)
      documents containing information prescribed under section 12C of the
      Act.  The substitute note includes a reference to new general
      obligations for advisers to be introduced by new section 60D proposed
      by item 22 as well as referring the reader to additional information-
      giving obligations for these professionals under section 63DA of the
      Act.

Item 11:  Paragraph 43(1)(ca)

  21. Item 11 amends paragraph 43(1)(ca), which provides the principles to
      be applied by courts, by replacing the word 'safety' with
      'protection'.  This promotes consistency of terminology in the Act.

Item 12:  After paragraph 60A(a)

  22. Item 12 amends section 60A, which outlines what is done in Division 1
      of Part VII of the Act.  The revised outline will include references
      to Subdivisions BA and BB of Division 1 (covering introductory issues
      relating to children's matters).  The descriptions are drawn from the
      titles of the Subdivisions in Division 1.  Under this amendment,
      section 60A refers to retitled Subdivision BA and new Subdivision BB
      introduced into the Act by items 16 and 22 respectively.

Item 13:  At the end of section 60B

  23. Item 13 inserts a new subsection into section 60B of the Act to
      provide that a further object of Part VII of the Act is to give effect
      to the United Nations Convention on the Rights of the Child (the
      Convention).  The purpose of this object is to confirm, in cases of
      ambiguity, the obligation on decision makers to interpret Part VII of
      the Act, to the extent its language permits, consistently with
      Australia's obligations under the Convention.  The Convention may be
      considered as an interpretive aid to Part VII of the Act.  To the
      extent that the Act departs from the Convention, the Act would
      prevail.  This provision is not equivalent to incorporating the
      Convention into domestic law.

  24. Australia ratified the Convention in 1990 and, in doing so, committed
      to protecting and ensuring children's rights.  The Convention contains
      the full range of human rights - civil, cultural, economic, political
      and social rights.  These rights can be broadly grouped as protection
      rights, participation rights and survival and development rights.  One
      of the main principles on which the Convention is based is the
      obligation to have regard to the best interests of the child as a
      primary consideration in decision-making.  Part VII of the Act is
      based on this same principle; although the best interests of the child
      are elevated to 'paramount' status in several provisions.  The
      reference to the Convention in section 60B does not adversely affect
      these provisions in Part VII or dilute the meaning of 'paramount
      consideration'.  Nothing in the Convention prevents Australia enacting
      stronger protections for the rights of the child than the Convention
      itself prescribes.

  25. The note provides the reader with a reference for accessing the
      Convention in accordance with current drafting practice.

Item 14: Section 60C (cell at table item 1, column headed "Divisions and
coverage")

  26. Item 14 updates the table in section 60C of the Act which provides an
      outline of issues dealt with by Part VII of the Act (dealing with
      children's matters).  New issues are included for Division 1 as a
      result of items 16 and 22.

Item 15:  Section 60C (cell at table item 8, column headed "Divisions and
coverage")

  27. Item 15 updates the table in section 60C of the Act which provides an
      outline of issues dealt with by Part VII of the Act (dealing with
      children's matters).  New issues are included for Division 8 as a
      result of item 29.

Item 16:  Subdivision BA of Division 1 of Part VII (heading)

  28. Item 16 changes the heading of Subdivision BA of Division 1 of
      Part VII of the Act to indicate that the issues dealt with in that
      subdivision relate to court proceedings.  This is necessary to
      distinguish between existing Subdivision BA, which deals with matters
      a court must consider when dealing with a children's matter, and new
      Subdivision BB which deals with adviser's obligations in relation to
      children's matters.  Subdivision BB is introduced by item 22.

Item 17: After subsection 60CC(2)

  29. Item 17 inserts new subsection 60CC(2A) which requires the court, when
      determining what is in a child's best interests, to give greater
      weight to the primary consideration that protects the child from harm
      in cases if there is inconsistency in applying the considerations.
      Section 60CC(2) of the Act provides that the two 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.
      Where child safety is a concern, this new provision will provide the
      courts with clear legislative guidance that protecting the child from
      harm is the priority consideration.

Item 18: Paragraph 60CC(3)(c)

  30. Item 18 repeals paragraph 60CC(3)(c) of the Act and replaces it with
      new paragraphs 60CC(3)(c) and (ca).

  31. Current paragraph 60CC(3)(c) is commonly referred to as the 'friendly
      parent provision'.  This provision required the family courts to
      consider the willingness of one parent towards the other in
      facilitating a child's relationship with other parent.  The AIFS
      Evaluation of the 2006 Family Law Reforms and the Family Law Council
      report to the Attorney-General, Improving responses to family violence
      in the family law system, noted the impact this provision had in
      discouraging disclosures of family violence and child abuse.  These
      reports indicate that parties were not disclosing concerns of family
      violence and child abuse for fear of being found to be an 'unfriendly
      parent'.

  32. The repeal of paragraph 60CC(3)(c) is intended to remove this
      disincentive and enable all relevant information to be put before the
      courts for consideration in making parenting orders.  Removal of the
      'friendly parent' provision will not prevent the court from
      considering a range of matters relevant to the care, welfare and
      development of the child such as a parent's attitude to the
      responsibilities of parenthood.

  33. New paragraphs 60CC(3)(c) and (ca) will substantially re-enact the
      content of current paragraphs 60CC(4)(1)(a) and (c) which are to be
      repealed by item 20.  The purpose of these provisions was to ensure
      that, when determining the best interests of the child, the court
      takes into account whether a person has failed to fulfil their
      parental responsibility obligations in the past.

  34. Proposed paragraph 60CC(3)(c) will require the court to consider the
      extent to which each of the child's parents has fulfilled, or failed
      to fulfil, his or her responsibilities as a parent.  This will include
      the extent to which each parent has taken, or failed to take, the
      opportunity to spend time with the child, communicate with the child,
      and participate in decision-making about major long-term issues in
      relation to the child.

  35. Proposed paragraph 60CC(3)(ca) will require the court to consider the
      extent to which each parent has facilitated, or failed to facilitate,
      the other parent doing these things and the extent to which each
      parent has fulfilled, or failed to fulfil, his or her obligation to
      maintain the child.

Item 19: Paragraph 60CC(3)(k)

  36. Item 19 deletes paragraph 60CC(3)(k) and replaces it with a similar
      provision which removes the requirement that a family violence orders
      must be final or contested.  The effect of this new paragraph is the
      courts must have regard to any family violence order made--including
      interim, non-contested and police issued order--and give appropriate
      weight to these orders.  The definition of 'family violence order' in
      subsection 4(1) of the Act remains unchanged.  This is definition
      draws on orders made under prescribed State and Territory legislation.

Item 20: Subsections 60CC(4) and (4A)

  37. Item 20 will repeal subsections 60CC(4) and (4A) of the Act.  As
      explained in item 18, paragraphs 60CC(4)(1)(a) and (c) will be
      substantially re-enacted in paragraph 60CC(3)(c). Subsection 60CC(4A)
      is to be repealed on the basis that it currently qualifies
      subsection 60CC(4) and will therefore become redundant with the repeal
      of that subsection.  The repeal of subsections 60CC(4) and (4A) will
      not inhibit the courts' ability to consider events and circumstances
      since parental separation which may be considered under
      paragraph 60CC(3)(m).

Item 21: At the end of Subdivision BA of Division 1 of Part VII

  38. Item 21 inserts new obligations on parties to provide the court with
      information regarding risks to the child, or another child who is a
      member of the child's family.  Information about whether a child is or
      has been the subject of a care order, notification or investigation
      under a child welfare law is crucial in assisting the family courts to
      make decisions about children.  This information is an indicator of
      the risks of harm to the child and may alert the court to other
      evidence relevant to the child's welfare and best interests.  In
      addition, the information will assist the court in determining whether
      jurisdictional matters under section 69ZK arise and whether to request
      the involvement of relevant child welfare authorities.  For example,
      the court may order the authorities to provide information relating to
      the notifications and investigations.

Section 60CH - Informing court of care arrangements under child welfare
laws

  39. Proposed section 60CH requires parties to parenting proceedings to
      notify the court if the child or another child who is a member of the
      child's family is under the care of a person under a child welfare
      laws.  This proposed section further provides that a person who is not
      party to proceedings may advise the court if the child or another
      child who is a member of the child's family is under the care of a
      person under a child welfare law.  Under proposed subsection 60CH(3),
      the validity of any orders made by the court will not be affected by a
      failure to inform the court about such care arrangements.  Despite
      this, the limitation in section 69ZK of the Act, which restricts the
      circumstances in which the courts can make orders in relation to a
      child who is under the care of a person under a child welfare order,
      will prevail over section 60CH.

Section 60CI - Informing court of notification to, and investigations by,
prescribed State or Territory agencies

  40. Proposed section 60CI requires parties to parenting proceedings to
      disclose to the court whether the child has been the subject of a
      notification or report to, or investigation, inquiry or assessment by,
      a prescribed child welfare authority.  This proposed section will
      further provide that a person who is not a party to the proceedings
      may advise the court about whether the child has been the subject of a
      notification or report to, or investigation, inquiry or assessment by,
      a prescribed child welfare authority.  A failure to inform the court
      will not affect the validity of any orders made by the court.

Item 22: After Subdivision BA of Division 1 of Part VII

  41. Item 22 inserts new Subdivision BB in Division 1 of Part VII which
      outlines the obligations on advisers when working with parents to
      reach parenting arrangements for their children.  As with current
      section 63DA of the Act, an adviser is defined as a legal
      practitioner, family counsellor, family dispute resolution
      practitioner or a family consultant.

  42. New subdivision BB directs advisers to focus on the best interests of
      a child when providing advice about parenting arrangements and other
      matters relating to that child under Part VII of the Act.

  43. Where there is inconsistency in applying the primary considerations of
      a child's right to a meaningful relationship with each parent and the
      child's right to be protected from harm, advisers are required to
      encourage parents to prioritise a child's safety.  This approach is
      consistent with the amendments made by item 17 which concerns the best
      interests of a child in court proceedings.  The new adviser
      obligations help parents to consider the protection of their children
      from harm as a priority at an early stage of discussions with the
      assistance of their advisers.

Item 23: Section 60K

  44. Item 23 repeals section 60K, which requires the court to take prompt
      action in relation to allegations of child abuse or family violence.
      Section 60K will be substantially re-enacted in proposed section 67ZBB
      (Court to take prompt action in relation to allegations of child abuse
      or family violence) to be inserted by item 34.  Proposed section 67ZBB
      is located more appropriately near sections 67Z and 67ZBA which,
      respectively, impose obligations to report child abuse and family
      violence to the courts.

Item 24: Before subsection 63DA(1)

  45. Item 24 provides that new adviser obligations set out in new
      Subdivision BB are in addition to obligations on advisers under
      section 63DA of the Act to give certain advice in connection with the
      making of parenting plans in relation to a child.  This item should be
      read in conjunction with item 22 of this Schedule, which requires
      advisers to encourage parents to take account of the child's best
      interests and prioritising the child's safety.

Item 25: Paragraph 63DA(2)(c)

  46. Item 25 repeals paragraph 63DA(2)(c), which requires advisers to
      inform their clients that decisions made in developing parenting plans
      should be made in the best interests of the child.  This obligation is
      expanded upon in new Subdivision BB to be inserted by item 22, which
      applies to all advice by advisers about matters under Part VII of the
      Act (dealing with children's matters), not just advice given in
      connection with the making of a parenting plan.  The new obligations
      in Subdivision BB are additional to those set out in section 63DA,
      which concerns the obligations of advisers in relation to parenting
      plans.

Item 26: Subsection 65DAA(5) (note 1)

  47. Item 26 repeals 'Note 1' under existing subsection 65DAA(5) of the
      Act.  This note outlines the relevant behaviour the court should take
      into account with respect to paragraph 65DAA(5)(c) in determining what
      parenting order the court should make in the best interests of the
      child.  The note identifies the additional considerations in
      subsection 60CC(3), particularly paragraphs 60CC(3)(c) and (i), as
      relevant behaviour the court should take into account.  This note is
      no longer necessary due to the repeal of paragraph 60CC(3)(c) by
      item 18.

Item 27: Subsection 65DAA(5) (note 2)

  48. Item 27 relabels 'Note 2' as 'Note' as a consequence of 'Note 1' being
      repealed by item 26.

Item 28: Paragraph 67A(c)

  49. Item 28 amends paragraph 67A(c) of the Act which provides an outline
      of the matters addressed in Division 8 of Part VII of the Act.  The
      amendment will be updated to inform the reader that Subdivision D of
      Division 8 of Part VII contains provisions relating to allegations of
      family violence as well as child abuse.  This is consequential to
      amendments made by item 34.

Item 29: Subdivision D of Division 8 of Part VII (heading)

  50. Item 29 updates the heading of Subdivision D of Division 8 of Part VII
      to inform the reader that Subdivision D contains provisions relating
      to allegations of family violence as well as child abuse.  The heading
      is amended as a consequence of item 34 which inserts new
      sections 67ZBA and 67ZBB into the Act.  Respectively, these provisions
      concern allegations of family violence and obligations on the courts
      to act promptly in relation to allegations of child abuse or family
      violence.

Item 30: Subsection 67Z(1)

  51. Item 30 amends section 67Z of the Act to apply it to an 'interested
      person' in proceedings under the Act, which is broader than its
      current application, namely, to a party to proceedings under the Act.
      Item 32 will insert a new definition of 'interested person' to ensure
      that section 67Z applies to parties to proceedings under the Act, an
      independent children's lawyer who represents the interests of a child
      in the case and other persons prescribed by the regulations.  The
      heading of section 67Z is altered to reflect the broadening of the
      persons covered by that provision.

Item 31: Subsection 67Z(2)

  52. Item 31 amends subsection 67Z(2) to refer to 'interested person'
      instead of 'party'.  This reflects the amendments to items 30 and 32,
      which extend section 67Z to interested persons and define these in
      broad terms.  Under this item, an 'interested person' will be required
      to file a notice in the court and serve a true copy of the notice upon
      the person who is alleged to have abused the child or from whom the
      child is alleged to be at risk of abuse.

  53. The Family Court currently prescribes a Notice of Child Abuse or
      Family Violence (Form 4) for the purposes of existing
      subsection 67Z(2) under the current Family Law Rules 2004.

Item 32: Subsection 67Z(4)

  54. Item 32 amends subsection 67Z(4) to include a definition of
      'interested person'.  The purpose of this change is to ensure certain
      people, such as the parties to proceedings and any independent
      children's lawyer representing a child in the case, are required to
      file a notice (currently a Notice of Child Abuse or Family Violence
      (Form 4)) in the court.   Respectively, paragraphs (a) and (b) of the
      definition of 'interested person' mean a party to the proceedings or
      an independent children's lawyer who represents the interests of a
      child in the proceedings.  Paragraph (c) of the definition enables
      regulations to prescribe persons in addition to those persons set out
      in paragraphs (a) and (b).  This item is to be read in conjunction
      with items 30 and 31.

Item 33: At the end of subsection 67ZA(3)

  55. Item 33 inserts a note at the end of existing subsection 67ZA(3),
      which authorises certain persons (such as lawyers, family dispute
      resolution practitioners, family consultants, family counsellors and
      certain Registrars) to notify a prescribed child welfare authority of
      reasonable suspicions that a child has been ill treated, is at risk of
      being ill-treated, or is at risk of, or has been exposed or subjected
      to, behaviour which psychologically harms the child. The note
      clarifies that a person who is authorised to report their suspicions
      under subsection 67ZA(3) not excused from mandatory reporting
      obligations arising under subsection 67ZA(2) where that person has
      reasonable grounds for suspecting that a child has been abused or is
      at risk of abuse.

Item 34: At the end of Subdivision D of Division 8 of Part VII

Section 67ZBA - Where interested person makes allegation of family violence

  56. Item 34 inserts new section 67ZBA, which creates obligations upon an
      'interested person' in proceedings for an order under Part VII of the
      Act who makes an allegation of family violence.  This provision is
      based on section 67Z of the Act which creates similar obligations in
      relation to allegations of child abuse.  It is intended to ensure that
      family courts receive the best possible evidence of family violence.

  57. Subsection 67ZBA(1) applies if family violence has been alleged by an
      interested party, as a consideration that is relevant to whether the
      court should make or refuse to make an order sought under Part VII of
      the Act.

  58. Subsection 67ZBA(2) provides that where an interested person makes an
      allegation of family violence, that person must file a notice in the
      prescribed form in the court, and serve a true copy of the notice on
      the party to proceedings to whom the allegation referred to in
      paragraph 67ZBA(1)(a) or (b) relates.  It would be open to the courts
      to prescribe the same notice for the purposes of subsection 67ZBA(2)
      as is prescribed for the purposes of subsection 67Z(2).  Currently,
      the notice prescribed by the Family Court is a Notice of Child Abuse
      or Family Violence (Form 4).

  59. Subsection 67ZBA(3) sets out the obligations where the alleged family
      violence (or risk of family violence) is also abuse of a child (or
      risk of abuse of a child).  This subsection clarifies that, in such
      cases, only one notice is required to be filed and served, either
      under subsection 67Z(2) or subsection 67ZBA(2).  If the notice is
      filed under subsection 67ZBA(2) the Registry Manager must deal with
      the notice as if it has been filed under subsection 67Z(2).

  60. Subsection 67ZBA(3) contains a note to clarify that the notice must be
      filed and served under the requirements in subsection 67Z(2) if the
      allegation of abuse of a child (or a risk of abuse of a child) relates
      to a person who is not a party to the proceedings.

  61. Subsection 67ZBA(4) defines the terms 'interested person', 'prescribed
      form' and 'Registry Manager' for the purposes of section 67ZBA.

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

  62. Item 34 inserts new section 67ZBB.  Section 67ZBB substantially re-
      enacts existing section 60K.  The proposed provision will be located
      in Subdivision D of Division 8 of Part VII of the Act, which is a more
      appropriate position as that subdivision deals with allegations of
      child abuse and family violence.

  63. As with section 60K, proposed section 67ZBB will place an obligation
      on the court to take prompt action in relation to allegations of child
      abuse or family violence.  The new provision operates in broadly in
      the same way as section 60K, although the allegation need not be
      confined to an allegation in a document.

  64. New subsection 67ZBB(1) sets out the application of section 67ZBB.  It
      applies where a notice is filed under subsection 67Z(2) or 67ZBA(2) in
      proceedings for an order under Part VII in relation to a child and the
      notice alleges, as a consideration relevant to whether the court
      should make or refuse to make the order, that: there has been abuse of
      the child or would be a risk of such abuse if the proceedings were
      delayed; or there has been family violence by one of the parties to
      proceedings or is a risk of such family violence.

  65. Importantly, new paragraph 67ZBB(2)(c) requires the court to deal with
      the issues raised by the allegation of child abuse or family violence
      (or risk thereof) as expeditiously as possible.

  66. In addition, the combined effect of new subsections 67ZBB(2) and (3)
      is that the court must, as soon as practicable and if appropriate
      within eight weeks after the notice is filed, consider what interim or
      procedural orders (if any) should be made to enable appropriate
      evidence about the allegations to be obtained expeditiously as
      possible and to protect the child or any of the parties to
      proceedings.  The kinds of orders encompassed by
      paragraphs 67ZBB(2)(a) and (b) include orders for the preparation of a
      family report, orders requiring the appointment of an independent
      children's lawyer; and orders to obtain documents or information from
      a prescribed State or Territory agency under section 69ZW.
      Paragraph 67ZBB(2)(b) states that the court must make such orders
      where appropriate.

  67. New subsection 67ZBB(4) requires the court, which has to consider what
      orders (if any) it should make under sub-paragraph 67ZBB(2)(a)(i) to
      enable appropriate evidence about the allegation to be obtained as
      expeditiously as possible, to specifically consider whether it should
      make orders under section 69ZW to obtain documents or information
      relating to the allegation from a prescribed State or Territory
      agency.  This new subsection will not limit the powers of the court
      under sub-paragraph 67ZBB(2)(a)(i).

  68. New subsection 67ZBB(5) requires the court, which has to consider what
      orders (if any) it should  make under sub-paragraph 67ZBB(2)(a)(ii) to
      protect the child or any of the parties to proceedings, to
      specifically consider whether it should make orders or grant an
      injunction under section 68B. This new subsection will not limit the
      powers of the court under sub-paragraph 67ZBB(2)(a)(ii).

  69. New subsection 67ZBB(6) provides that the validity of an order will
      not be affected by a failure to comply with proposed section 67BB.

Item 35: Section 68N (note)

  70. Item 35 repeals the note at the end of section 68N, which references
      other provisions dealing with family violence.  This note is
      unnecessary and risks becoming unwieldy with the addition of new
      family violence provisions.  The outline of Part VII at section 60C
      already provides guidance to the reader about provisions relating to
      family violence.

Item 36: Subsection 69ZH(2)

  71. Item 36 amends subsection 69ZH(2) to include a reference to proposed
      Subdivision BB.  The effect of this amendment is that new Subdivision
      BB, inserted by item 22 of Schedule 1, will be read down to only apply
      to a child of a marriage, or the child's parents as parties to the
      marriage, in those States that have not referred constitutional power
      with respect to ex-nuptial children.  Subdivision BB will also be read
      down according to subsection 69ZH(3) of the Act relating to parental
      responsibility.

Item 37: Paragraph 69ZN(5)(a)

  72. Item 37 amends paragraph 69ZN, which outlines the principles for
      conducting child-related proceedings.  Paragraph 69ZN(5)(a) will be
      repealed and replaced with a new sub-principle based on terminology
      consistent with other provisions in Part VII of the Act.  The proposed
      sub-principle is to safeguard 'the child concerned from being
      subjected to, or exposed to, abuse, neglect or family violence'.  This
      amendment does not change the substance of paragraph 69ZN(5)(a).

Item 38: Before paragraph 69ZQ(1)(a)

  73. Item 38 imposes a new duty on the court to actively ask each party to
      child-related proceedings about the existence, or risk, of child abuse
      or family violence.  The imposition of this duty implements the family
      courts' obligation under subsection 68ZN(5) to conduct proceedings in
      a way that will safeguard the child and the parties to the proceedings
      from harm.  The duty does not currently extend to requiring the court
      to proactively inquire about other information which might be useful
      evidence from people or agencies other than parties to the
      proceedings.

Item 39: At the end subsection 91B(2)

  74. Item 39 inserts a new note at the end of existing section 91B, which
      allows a court to request a child welfare officer to intervene in
      proceedings that affect or may affect the welfare of a child.  The
      purpose of this note is to alert the reader to the immunity for costs
      provision in proposed subsection 117(4A) to be inserted by item 42.
      Under proposed subsection 117(4A), the court must not make a order for
      costs or security for costs against an officer of a child welfare
      authority or a Commonwealth, State or Territory entity which has
      engaged or employed such an officer where the officer has intervened
      in proceedings at the request of the court and acted in good faith in
      relation to the proceedings.

Item 40: Subsection 117(1)

  75. Item 40 removes the reference to section 117AB in subsection 117(1),
      as a consequence of the repeal of section 117AB by item 43.

Item 41: Subsection 117(2)

  76. Item 41 is a consequential amendment to insert a reference to new
      subsection 117(4A), introduced by item 42, which introduces a new
      immunity for certain officers from orders involving costs or security
      for costs.

Item 42: After subsection 117(4)

  77. Item 42 introduces an immunity from orders for costs or security for
      costs for officers of a State or Territory or of the Commonwealth who:
      are responsible for child welfare laws of the State or Territory;
      intervene in family law proceedings following a request by the court;
      and act in good faith in relation to the proceedings.  Intervention by
      child welfare authorities can help the family courts to obtain
      information about suspected family violence and abuse affecting the
      child.  It can also provide the family courts additional options to
      protect the child from harm when determining parenting orders.

Item 43: Section 117AB

  78. Item 43 repeals existing section 117AB of the Act.  Section 117AB
      requires the court to make a mandatory cost order against a party to
      the proceedings, for some or all of the costs of another party, where
      the court is satisfied that the first party knowingly made a false
      allegation or statement in the proceedings.

  79. The AIFS Evaluation of the 2006 Family Law Reforms and the Family Law
      Council report to the Attorney-General, Improving responses to family
      violence in the family law system, indicate that section 117AB has
      operated as a disincentive to disclosing family violence.  Vulnerable
      parents may choose to not raise legitimate safety concerns for
      themselves and their children due to fear they will be subject to a
      costs order if they cannot substantiate the claims.  Section 117 of
      the Act will allow family courts to make cost orders in response to
      false statements in appropriate cases.

Part 2 - Application and transitional provisions

Item 44: Definitions

  80. Item 44 provides definitions that are to be applied in the
      interpretation of the application and transitional provisions related
      to Schedule 1.  Definitions are provided for the terms 'commencement'
      and 'old Act'.  These terms are defined to improve the readability of
      provisions in this Part and to help the reader to determine whether
      particular provisions commence before or after Schedule 1 commences.

Item 45: Application of certain amendments

  81. Item 45 provides that certain new provisions in Schedule 1 apply to
      all proceedings that are instituted before, on or after commencement.
      This application rule prioritises the safety of children in Part VII
      proceedings including those that are before the courts at
      commencement.  It is subject to sub-item 47(1), which provides the
      amendments made by Schedule 1 do not affect an order made under, or a
      certificate given under subsection 60I(8) of, the Act as in force
      immediately before commencement.

  82. Proposed provisions that will be subject to this application rule are:
      definitions related to 'abuse', 'family violence', 'exposed' and
      'family member' (items 1 to 3); principles to be applied by courts
      exercising jurisdiction under the Act (item 11); the introduction of a
      new object underlying Part VII of the Act (item 13); the
      prioritisation of safety within primary considerations, and changes to
      additional considerations, in section 60CC of the Act
      (items 17 to 20); requirements to inform the courts of certain matters
      relating to child welfare (item 21); requirements to file notices
      relating to allegations of child abuse or family violence or risk of
      child abuse or family violence and for the court to take prompt action
      in relation to allegations of child abuse of family violence (items 30
      to 34); principles for, and general duties on the court when,
      conducting child-related court proceedings (items 37 and 38); and the
      removal of the mandatory cost order provision (item 40 to 43).

  83. This application rule prioritises the safety of children over the cost
      and convenience to the courts, witnesses and the parties who may have
      matters part or fully heard.  To assist the transition process,
      clause 3 of the Family Violence Bill provides that the measures in
      Schedule 1 will commence upon a single date to be fixed by
      Proclamation but no later than 6 months after the day the Act receives
      the Royal Assent.  This would allow for a delayed commencement and, in
      turn, help the courts to anticipate new requirements in proceedings
      during the lead up to commencement.

Item 46: Documents filed under section 60K

  84. Item 46 ensures that the courts will continue to be obligated to act
      promptly in relation to certain allegations of child abuse or family
      violence or a risk of child abuse or family violence notwithstanding
      the repeal of section 60K of the Act.  The obligations upon the court
      under section 60K to act promptly will continue to apply in relation
      to any document filed in the court in accordance with section 60K
      prior to the commencement of Schedule 1.

Item 47: Amendments do not affect existing orders etc. or constitute
changed circumstances

  85. Item 47 will ensure that existing orders and certain certificates
      relating to the requirement to participate in family dispute
      resolution are preserved following commencement of Schedule 1.

  86. Sub-item 47(1) ensures that any orders made before commencement are
      not affected by the amendments in Schedule 1.  This sub-item would
      preserve prior orders made under the Act, including cost orders made
      pursuant to section 117AB (which is to be repealed under item 43 of
      Part 1 of Schedule 1).

  87. Sub-item 47(1) also ensures that any certificate issued by a Family
      Dispute Resolution Practitioner (FDRP) for the purposes of
      subsection 60I(8) of the Act is not affected by the amendments in
      Schedule 1.  Any certificate issued under subsection 60I(8), and filed
      in a court under subsection 60I(7), of the Act must be considered by
      that court when it determines whether it may hear an application for a
      Part VII order in relation to a child.

  88. This amendment does not prevent a person who was unable to obtain a
      certificate under subsection 60I(8) prior to commencement of Schedule
      1 from seeking a certificate, after commencement, taking account of
      the new definitions of 'family violence' and 'abuse', etc.

  89. Sub-item 47(2) puts beyond doubt that changes to the Act made by
      Schedule 1 do not constitute such a significant change in
      circumstances or new factor so as to meet the test of Rice and Asplund
      (1979) FLC 90-725.  That case limits the court's capacity to rehear
      matters to two kinds of cases: those where there is a change in the
      circumstances of the parties where some new factor has arisen which
      would justify a serious step; and those where there is some factor
      which was not disclosed at a previous hearing that would have been
      material.

  90. It is not generally in the best interests of the child to have
      repeated applications concerning them before the courts.  Sub-
      item 47(2) would not, however, prevent a person from seeking a
      rehearing of a children's matter where he or she failed to disclose
      child abuse or family violence that is a material concern relevant to
      the best interests of the child.  The courts will reconsider parenting
      arrangements when material circumstances were not disclosed when the
      original orders were made.

  91. The note following sub-item 47(2) directs the reader to the principle
      in Rice and Asplund.  This note is to assist readers, particularly
      self-represented litigants, to understand how sub-item 47(2) links to
      the common law.

Item 48: Transitional, application and savings - regulations

  92. Item 48 enables regulations to be made about matters of a
      transitional, application or saving nature relating to amendments made
      by the Schedule 1.  If such regulations were made, those regulations
      would prevail over any transitional, application or savings provisions
      set out in Part 2 of Schedule 1, to the extent of any inconsistency.
      The purpose of this amendment is to allow the rules in items 44 to 47
      to be adjusted to take account of any unexpected transitional,
      application and savings matters or to take other action such as to
      carve out proceedings that are part heard or where judgment is
      reserved if that is considered appropriate.

Schedule 2 - Other Amendments

Part 1 - Amendments

Bankruptcy Act 1966

Item 1: Paragraph 35A(3)(f)

  93. Item 1 amends section 35A of the Bankruptcy Act 1966 (Cth) which
      enables the Federal Court of Australia to transfer proceedings under
      that Act to the Family Court of Australia.  Presently, paragraph
      35A(3)(f) provides that, subject to earlier paragraphs of
      subsection 35A(3), Rules of Court made under the Federal Court of
      Australia Act 1976 apply, with specific modifications, in and in
      relation to the proceedings transferred to the Family Court.

  94. This item, which omits the words 'the Rules of Court made under that
      Act' from paragraph 35A(3)(f) of the Bankruptcy Act, is to be read in
      conjunction with item 30 of Schedule 2.  That amendment will empower
      the Family Court to make its own rules relating to bankruptcy
      proceedings transferred to it under section 35A of the Bankruptcy Act.



  95. This item is also to be read in conjunction with item 2 of Schedule 2.



Item 2: At the end of subsection 35A(3)

  96. Item 2 inserts a note at the end of subsection 35A(3) of the
      Bankruptcy Act to signal to the reader that any proceedings
      transferred from the Federal Court of Australia to the Family Court of
      Australia under section 35A will be dealt with by Rules of Court made
      by the Family Court for such purposes.  This amendment is
      consequential to the amendment made by items 1 and 30 of Schedule 2.

Family Law Act 1975

Item 3: Subsection 11F(1)

  97. Item 3 amends subsection 11F(1) of the Act to expressly empower courts
      exercising jurisdiction under the Act to order the parties to
      proceedings to arrange for children who are the subject of proceedings
      to attend an appointment or a series of appointments with a family
      consultant.  This amendment will remove doubt about the courts'
      ability to order these appointments which is currently taking place
      and being enforced in accordance with paragraph 11G(1)(b) and
      subsection 11G(2) of the Act.

  98. This amendment is to be read in conjunction with items 4, 15 and 16 of
      Schedule 2.

Item 4: Subsection 11G(2)

  99. Item 4 substitutes subsection 11G(2) with two new subsections:
      subsections 11G(1A) and 11G(2).

 100. Subsection 11G(1A) requires family consultants to report to the court
      where a person has failed to comply with an order under
      subsection 11F(1) to arrange for a child to attend an appointment with
      a family consultant, or where the child fails to attend an appointment
      arranged in compliance with such an order.

 101. Subsection 11G(2) extends the power of the court to make further
      orders where the family consultant reports failures to comply with
      orders to attend family consultant appointments to reports received
      under subsections 11F(1) and (1A).

 102. This amendment is to be read in conjunction with items 3, 15 and 16 of
      Schedule 2.

Item 5: Subsection 13C(1) (note 2)

 103. Item 5 amends Note 2 following subsection 13C(1) of the Act to reflect
      amendments made by item 3 of Schedule 2.  This consequential change to
      the Note provides a signpost to the reader indicating that the court
      can also order parties to arrange for a child to attend appointments
      with a family consultant.

Item 6: Subsection 24(1)

 104. Item 6 amends subsection 24(1) of the Act relating to the performance
      of certain duties and exercise of certain powers when the Chief Judge
      of the Family Court is ill or absent from Australia.  Subsection 24(1)
      currently provides that whenever this situation occurs, the Deputy
      Chief Judge or, if the Deputy Chief Judge is unavailable, the senior
      Judge Administrator who is in Australia and is available and willing
      to do so will fulfil such obligations.  There are presently no Judge
      Administrators in the Family Court, and no further appointments are
      envisaged.

 105. Accordingly, item 6 omits the words 'the senior Judge Administrator'
      and substitutes these with the words 'the next senior Judge'.  The
      seniority of Judges assigned to the Appeal Division of the Family
      Court is determined under subsection 23(4) of the Act.  Under that
      provision, each Appeal Division Judge has seniority according to the
      day on which her or his assignment to the Appeal Division took effect.

Item 7: At the end of subsection 37A(1)

 106. Item 7 inserts a new note after subsection 37A(1), which allows the
      Judges of the Family Court or a majority of them to make Rules of
      Court delegating powers to Registrars.  The proposed note will provide
      a signpost to the reader to consider new section 37AA in relation to
      how subsection 37A(1) will apply to powers under existing
      subsections 94(2D) and 94AAA(10) of the Act to hear and determine
      applications of a procedural nature in appeals to the Family Court.

Item 8: After section 37A

 107. Item 8 inserts section 37AA to expressly provide that the Family Court
      may make Rules of Court delegating powers to hear and determine
      applications of a procedural nature in appeals to Registrars of the
      Family Court.

 108. When making Rules of Court under subsection 37A(1) delegating these
      powers to Registrars, the Judges of the Family Court may, under
      subsection 37AA(2), specify modifications of section 37A that are to
      have effect in relation to the exercise by Registrars of the powers.
      Several provisions in section 37A require modification to apply to
      powers that might be delegated to Registrars to hear and determine
      applications of a procedural nature in Family Court appeals.

 109. For example, subsection 37A(3) provides that exercise by a Registrar
      of powers delegated by Rules of Court made under subsection 37A(1)
      'shall, for all purposes, be deemed to have been exercised by the
      Court or a Judge, as the case requires'.  Applications of a procedural
      nature in appeals from a single Judge decision of the Family Court of
      Australia or the Family Court of Western Australia are usually heard
      and determined, under subsection 94(2D) of the Act, by either a Judge
      of the Appeal Division of the Family Court or a Full Court of the
      Family Court.

Item 9: Subsection 55(5) (definition of appeal)

 110. Item 9 repeals the definition of 'appeal' in subsection 55(5) of the
      Act, and replaces it with a new definition.  Section 55 sets out when
      a divorce order takes effect generally and where an appeal is
      instituted.

 111. The term 'appeal' is currently defined in subsection 55(5) in a
      limited way as it does not extend to applications to review a divorce
      order made by a Judicial Registrar or a Registrar of the Family Court
      of Australia, a Registrar of the Federal Magistrates Court or the
      Principal Registrar or a Registrar or Deputy Registrar of the Family
      Court of Western Australia.

 112. The term 'appeal', as currently defined, also does not extend to
      applications to review a declaration under section 55A of the Act made
      by one of these court officers in divorce proceedings about the
      arrangements that the spouses have made for their children, or to
      rescind a divorce order under section 57 or 58 of the Act.

 113. The new definition of 'appeal' expressly covers applications for
      review of divorce orders, declarations under section 55A of the Act
      and orders determining applications under sections 57 or 58 of the Act
      for the rescission of a divorce order.

Item 10: At the end of section 60A

 114. Item 10 updates section 60A of the Act which provides an outline of
      what is contained in Part VII of the Act.  An additional paragraph is
      included to identify provisions inserted into the Act in 2006 about
      the use of family dispute resolution before applying for an order
      under Part VII relating to children.

Item 11: Section 60C (cell at table item 1, column headed "Divisions and
coverage")

 115. Item 11 updates section 60C of the Act which sets out, in tabular
      form, an outline of Part VII of the Act and the coverage if Divisions
      within the Part.  Table item 1 is amended to include a reference to
      'family dispute resolution' overlooked in a previous amendment.

Item 12: Section 60C (cell at table item 7, column headed "Divisions and
coverage")

 116. Item 12 updates section 60C which sets out, in tabular form, an
      outline of Part VII of the Act and the coverage if Divisions within
      the Part.  Table item 7 is amended to include a reference to 'varying
      the maintenance of certain children' overlooked in a previous
      amendment.

Item 13: Section 60C (cell at table item 7, column headed "Divisions and
coverage")

 117. Item 13 updates section 60C which sets out, in tabular form, an
      outline of Part VII of the Act and the coverage if Divisions within
      the Part.  Table Item 7 is amended to include a reference to 'recovery
      of amounts paid under maintenance orders' overlooked in a previous
      amendment.

Item 14: Section 60C (cell at table item 12A, column headed "Divisions and
coverage")

 118. Item 14 updates section 60C which sets out, in tabular form, an
      outline of Part VII of the Act and the coverage if Divisions within
      the Part.  Table Item 12A is amended to include a reference to
      'matters relating to evidence' overlooked in a previous amendment.

Items 15 and 16: Subsection 62G(5), subsection 62G(6)

 119. Items 15 and 16, for consistency with the amendments made by items 3
      and 4 of Schedule 2, make consequential amendments to section 62G of
      the Act, which enables a court, in proceedings where the care, welfare
      and development of a child who is under 18 is relevant, to direct a
      family consultant to give the court a report on relevant matters.

 120. Item 15 amends subsection 62G(5), which enables the court to make
      appropriate orders and directions for the purpose of the preparation
      of a report it has asked a family consultant to give.  One example of
      such an order or direction currently set out in subsection 62G(5) is
      an order or direction that 'a party to proceedings, or the child,
      attend an appointment or a series of appointments with a family
      consultant'.  Item 15 expands the example to refer to an order or
      direction that 'one or more parties to the proceedings attend, or
      arrange for the child to attend, an appointment or a series of
      appointments with a family consultant'.

 121. Reflecting the recasting of the example in subsection 62G(5), item
      16 amends subsection 62G(6) to include new paragraph 62G(6)(b) which
      provides that the family consultant must report any failure of a child
      to attend an appointment arranged in compliance with an order or
      direction under subsection 62G(5).

Item 17: At the end of subsection 64B(1)

 122. Item 17 amends subsection 64B(1) to clarify that a declaration or
      order under Subdivision E, Division 1 of  Part VII is not a 'parenting
      order'.  This amendment relates to parentage testing orders under
      section 69W, parentage declarations under section 69VA and other
      orders in Subdivision E associated with parentage testing orders, for
      example, orders to make the parentage testing procedure more effective
      and reliable, and orders requiring people who have prepared reports
      about information obtained from parentage testing to give evidence in
      relation to those reports.

Item 18: At the end of section 66A

 123. Item 18 updates section 66A which provides an outline of what Division
      7 of Part VII deals with and contains.  An additional paragraph is
      included to indicate that Division 7 'deals with the recovery of
      amounts paid under maintenance orders (Subdivision G)' which was
      overlooked in a previous amendment.

Item 19: At the end of paragraph 68LA(6)(a)

 124. Item 19 involves the correction of a drafting error.  It inserts the
      word 'and' at the end of a paragraph to clarify that the provision,
      which concerns the non-disclosure obligations of independent
      children's lawyers, should be read cumulatively.

Item 20: Subsection 69N(4)

 125. Item 20 involves the correction of a drafting oversight in subsection
      69N(4), which deals with the powers of the court when transfer of
      proceedings from courts of summary jurisdiction in certain cases.
      That provision empowers the court to make such orders as it considers
      necessary pending the disposal of proceedings by the court to which
      they are transferred.  Subsection 69N(4)  contains an outdated
      reference to making orders under subsection 62F(2) repealed in 2006.
      The reference to repealed subsection 62F(2) is substituted with a
      reference to existing section 13C(1) which, since 2006, has
      established an equivalent power to order parties to do certain things
      at any stage in proceedings.

Item 21: Section 69ZS (note 2)

 126. Item 21 amends Note 2 following existing section 69ZS to provide a
      signpost to the reader indicating that the court may order parties to
      proceedings to attend appointments with a family consultant.

Item 22: Section 69ZU

 127. Item 22 repeals section 69ZU of the Act.  Section 69ZU currently
      restricts the use of an opinion given by a family consultant unless it
      is given as sworn evidence.  Section 69ZU reflects past Family Court
      practice under which family consultants were sworn in on the first day
      of a less adversarial trial ensuring that any future testimony given
      in the matter had the character of sworn evidence.  This practice is
      no longer followed.  This means that family consultant reports ordered
      under section 62G of the Act and other documents prepared by family
      consultants must be verified by affidavit if they contain statements
      of opinion.  Section 69ZU treats statements of opinion by family
      consultants less favourably than statements made by other persons that
      are routinely admitted into evidence in parenting proceedings through
      documents produced on subpoena.

 128. For the above reasons, section 69ZU is repealed to enable a court to
      be able to take into account any opinion expressed by a family
      consultant in child related proceedings under the Act  without the
      family consultant having given the opinion as sworn evidence.

Items 23 to 25: Before paragraph 70NAF(3)(a); After paragraph 70NEB(1)(d);
After section 70NEC

 129. Items 23 to 25 amend provisions in Division 13A of Part VII of the
      Act, which provide for the consequences of failure to comply with
      orders under the Act affecting children.  The amendments take account
      of observations made by the Full Family Court in Elspeth & Peter; Mark
      & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 about
      provisions that enable the courts to require persons in breach of
      orders to enter into a bond.

 130. In Elspeth & Peter the Full Family Court drew attention to two
      oversights in the amendments made by the Family Law Amendment (Shared
      Parental Responsibility) Act 2006 relating to less serious
      contraventions of an order affecting a child.  A contravention of such
      an order is 'less serious' where the person has not behaved in a way
      that showed a serious disregard for his or her obligations under the
      order, and has not earlier had a sanction imposed for contravening the
      order.

 131. The first oversight concerns the obligation on the court, before
      requiring the person to enter into the bond, to explain to the person,
      in language likely to be readily understood, the consequences of
      failing to enter into the bond.  The Full Family Court observed that,
      unlike the case for serious contraventions, there were no provisions
      that set out or explained what the consequences might be.   To address
      this, item 24 amends subsection 70NEB(1) of the Act to insert new
      paragraph 70NEB(1)(da).  This proposed paragraph would enable a court,
      if a person fails without reasonable excuse to enter into a bond as
      required by a court for a less serious contravention of an order
      affecting a child, to impose on the person a fine not exceeding
      10 penalty units.

 132. The second oversight is that there is no mirror provision to section
      70NFF of the Act, which sets out the consequences of failing to comply
      with a bond entered into in relation to a more serious contravention.
      To address this oversight, item 25 inserts new section 70NECA which
      sets out, in similar terms to section 70NFF, the consequences of
      failing to comply with a bond entered into for a less serious
      contravention of an order affecting a child.  The consequences enable
      a court, where satisfied that the person has failed, without
      reasonable excuse, to comply with the bond, to impose a fine not
      exceeding 10 penalty units or to revoke the bond and deal with the
      person for his or her original contravention in any manner in which he
      or she could have been dealt with for that contravention if the bond
      had not been entered into.

 133. Section 4AA of the Crimes Act 1914 (Cth) currently provides that a
      penalty unit is an amount of $110.00.

 134. Recognising the power to impose fine under paragraphs 70NEB(1)(da)
      and 70NECA(3)(a) is punitive, item 23 amends subsection 70NAF(3) to
      require the standard of proof to be reached before a court may make an
      order under paragraph 70NEB(1)(da) or paragraph 70NECA(3)(a) is for
      the court to be satisfied beyond reasonable doubt that the grounds for
      making the order exist.

Item 26: Subsection 70NFF(2)

 135. Item 26 corrects a drafting oversight in subsection 70NFF(2), which
      sets the consequences that arise when the court is satisfied that the
      person has, without reasonable excuse, failed to comply with a
      community service order or a bond.  Subsection 70NFF(2) operates on
      the condition 'if the court (whether or not constituted by the judge
      or magistrate...) is satisfied'.  Given the Federal Magistrates
      Court's central role in enforcing parenting orders, it is useful to
      include a reference to 'Federal Magistrate' in subsection 70NFF(2).

Item 27: Section 96AA

 136. Item 27 enhances the Family Court's power to dismiss appeals.  The
      item repeals existing section 96AA and replaces it with a new
      provision that gives the Family Court power to dismiss an appeal
      (generally or in relation to a particular ground) where, having regard
      to the grounds of appeal disclosed in the relevant notice of appeal,
      the appeal has no reasonable prospect of success (either generally or
      in relation to a particular ground).  The proposed amendment is more
      in line, but not identical to, similar provisions in other
      Commonwealth Acts dealing with other federal courts.

 137. The amendment will mean that the Court's power to dismiss appeal
      proceedings is available at times other than, as well as during, the
      hearing of the appeal.  The item also changes the basis on which the
      Family Court may dismiss an appeal.  Currently, the Family Court may
      only dismiss an appeal where there are no proper grounds of appeal.
      Under this item, the Family Court will be able to dismiss an appeal if
      it appears to the court, having regard to the grounds of appeal as
      disclosed in the notice of appeal, that the notice of appeal has no
      reasonable prospect of success.  That is, the focus of item 27 on the
      'prospects of success' would allow the Family Court to dismiss an
      appeal that is founded on a proper ground of appeal, but which has no
      reasonable prospect of success.

 138. Item 27 will not limit any other powers of the Family Court.  For
      example, the Court's power to order a stay of appeal proceedings would
      remain even though the express reference to this power will be
      removed.

Item 28: After section 98

 139. Item 28 inserts sections 98AA and 98AB into the Act.  Respectively,
      these new provisions will authorise the categories of people before
      whom an oath or affirmation may be administered, and an affidavit may
      be sworn or affirmed, for Family Court purposes.  The proposed
      provisions would be closely aligned to similar provisions in the
      Federal Magistrates Act 1999 (see sections 58 and 59 of that Act).
      However, references to Commissioners of the High Court and the State
      and Territory Supreme Courts will not be included in proposed
      section 98AB on the basis that these either have no practical effect
      or have limited operation.  An authorisation given under
      subsection 98AA(2) or (3) would not be of a legislative character and,
      as such, would not be a legislative instrument for the purposes of the
      Legislative Instruments Act 2003 (Cth).

Item 29: Subsection 112AH(2)

 140. Item 29 corrects a drafting oversight in subsection 112AH(2), which
      sets the consequences that arise when the court is satisfied that a
      person has, without reasonable excuse, failed to comply with a
      sentence or community service order.  Subsection 112AH (2) operates on
      the condition 'if the court (whether or not constituted by the judge
      or magistrate...) is satisfied'.  Given the Federal Magistrates
      Court's central role in enforcing parenting orders, it is useful to
      include in subsection 112AH(2) a reference to 'Federal Magistrate'.

Item 30: After paragraph 123(1)(ba)

 141. Item 30 inserts a new rule making power in to subsection 123(1) of the
      Act.  This item will allow the Family Court to make Rules of Court
      providing for and in relation to proceedings transferred to the Family
      Court under section 35A of the Bankruptcy Act.

 142. This item is to be read in conjunction with items 1 and 2 of
      Schedule 2.

Part 2 - Application and transitional provisions

Item 31: Application of amendments made by items 1, 2 and 30

 143. Item 31 sets out the application of items 1, 2 and 30 of Schedule 2
      which, collectively, will amend the Family Law Act and the Bankruptcy
      Act 1966 to allow the Family Court to make Rules of Court providing
      for and in relation to proceedings transferred under section 35A of
      the Bankruptcy Act from the Federal Court of Australia to the Family
      Court of Australia.  Item 31 provides that these amendments will apply
      to all proceedings transferred to the Family Court whether before, on
      or after the commencement of items 1, 2 and 30 of Schedule 2.

 144. After commencement, all new matters and active matters being heard on
      the basis that the Federal Court (Bankruptcy) Rules 2005 apply will be
      dealt with according to new Family Court Rules of Court to be made
      under revised subsection 123(1) of the Act.

Item 32: Saving of orders and directions under subsections 11F(1) and
62G(5)

 145. Item 32 saves any order or direction made under subsections 11F(1) or
      62G(5) relating to appointments with family consultants (including any
      application for such an order or direction), in force immediately
      before the commencement of items 2 and 15 of Schedule 2, as if it were
      an order or direction (or an application for an order or application)
      under subsection 11F(1) or 62G(5) after that commencement.

Item 33: Application of amendment made by item 9

 146. Item 33 ensures that the amendments made by item 9 of Schedule 2 apply
      to all appeals, applications, interventions or reviews referred to in
      that item whether instituted before, or after the commencement of item
      9.  This means that a divorce will generally take effect at the
      expiration of 1 month after any appeal, application, intervention or
      review is determined or discontinued.

 147. Sub-item 33(2) provides that amendments made item 9 of Schedule 2 do
      not affect any divorce orders that have taken effect before the
      commencement of that item.

Item 34: Application of amendment made by item 17

 148. Item 34 provides that the amendments made by item 17 of Schedule 2,
      which provide that certain declarations or orders made under
      Subdivision E of Division 12 of Part VII of the Act (such as parentage
      testing orders, parentage declarations) are not 'parenting orders',
      will apply in relation to declarations and orders whether made before,
      on or after the commencement of item 17.  This means that any
      proceedings involving such orders cannot be reversed solely on any
      earlier characterisation of these orders in accordance with section
      64B of the Act in its terms before the commencement of item 17.

Item 35: Application of amendment made by item 22

 149. Item 35 provides that the amendment made by item 22 of Schedule 2,
      which concerns the court's ability to consider opinions expressed by a
      family consultant, apply regardless of whether that opinion was
      expressed before, on or after the commencement of item 22.  This means
      that, after the commencement of item 22, a court may take into account
      any opinion expressed by a family consultant in child-related
      proceedings under the Act without the family consultant having given
      the opinion as sworn evidence.

Item 36: Application of amendments made by items 24, 25 and 26

 150. Item 36 sets out the application of items 24, 25 and 26, which relate
      to new measures relating to the enforcement of bonds.

 151. Sub-item 36(1) provides that item 24, which enables the court to
      impose a fine on a person who has not complied with a requirement to
      enter a bond in relation to a less serious contraventions, will apply
      to all orders requiring persons to enter bonds regardless of whether
      those orders were made before, on or after the commencement of
      item 24.

 152. Sub-item 36(2) provides that item 25, which sets out a procedure for
      the court to enforce a bond imposed in relation to a less serious
      contraventions, will apply to all bonds entered into regardless of
      whether those bonds were entered into before, on or after the
      commencement of item 25.

 153. Sub-item 36(3) provides that item 26, which inserts the words 'Federal
      Magistrate' into subsection 112AH(2), will apply in relation to
      community service orders or orders requiring persons to enter bonds
      made before, on or after the commencement of that amendment.

Item 37: Application of amendment made by item 27

 154. Sub-item 37(1) provides that the amendment made by item 27 of Schedule
      2, relating to the Family Court's power under section 96AA of the Act
      to dismiss appeal proceedings, will apply in relation to appeals
      instituted before, on or after the commencement of that item.  Sub-
      item 37(2) provides that any dismissal or stay of proceedings on an
      appeal prior to the commencement of item 27 is not affected by the
      proposed repeal and replacement of section 96AA of the Act.

Item 38: Application of amendment made by item 29

 155. Item 38 provides that the amendment made by item 29, which inserts the
      words 'Federal Magistrate' into subsection 112AH(2), will apply in
      relation to sentences imposed, or orders made before, on or after the
      commencement of that amendment.