Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 29

29. Section 64 of the Principal Act is amended-

   (a)  by omitting from sub-section (1) ''or guardianship'' and substituting
        '', guardianship or welfare'';

   (b)  by omitting paragraph (1) (b) and substituting the following
        paragraphs:

''(b) the court shall consider any wishes expressed by the child in
relation to the custody or guardianship of, or access to, the child, or in
relation to any other matter relevant to the proceedings, and shall give those
wishes such weight as the court considers appropriate in the circumstances of
the case;

   (ba) subject to paragraphs (a) and (b), the court shall, unless in the
        opinion of the court it is not practicable, make the order that, in
        the opinion of the court, is least likely to lead to the institution
        of further proceedings with respect to the custody or guardianship of
        the child;

   (bb) the court shall take the following matters into account:

        (i)    the nature of the relationship of the child with each of the
               parents of the child and with other persons;

        (ii)   the effect on the child of any separation from-

                (A)  either parent of the child; or

                (B)  any child, or other person, with whom the child has been
                     living;

        (iii)  the desirability of, and the effect of, any change in the
               existing arrangements for the care of the child;

        (iv)   the attitude to the child, and to the responsibilities and
               duties of parenthood, demonstrated by each parent of the child;

        (v)    the capacity of each parent, or of any other person, to provide
               adequately for the needs of the child, including the emotional
               and intellectual needs of the child;

        (vi)   any other fact or circumstance (including the education and
               upbringing of the child) that, in the opinion of the court, the
               welfare of the child requires to be taken into account; and'';

   (c)  by omitting from paragraph (1) (c) ''and (b)'' and substituting '',
        (b), (ba) and (bb)'';

   (d)  by inserting after sub-section (1) the following sub-sections:

''(1A) For the purpose of complying with the requirements of paragraph (1) (b)
the court may-

   (a)  have regard to anything contained in a report furnished to the court
        in accordance with a direction under sub-section 62A (1); and

   (b)  subject to the regulations, inform itself as to the wishes of the
        child by such other means as it considers appropriate,

but nothing in this section permits the court or any person to require a child
to express his wishes (if any) in relation to his custody or guardianship,
in relation to access to him or in relation to any other matter relevant to
the proceedings.

''(1B) A court shall not make an order (other than an order until further
order or an order made with the consent of all the parties to the proceedings)
in proceedings with respect to the custody, guardianship or welfare of, or
access to, a child of a marriage unless-

   (a)  the parties to the proceedings have attended a conference in
        relation to the matter to which the proceedings relate with a court
        counsellor or welfare officer;

   (b)  the court is satisfied that, having regard to the need to make an
        order urgently, or to any other special circumstance, it is
        appropriate to make the order notwithstanding that the parties to the
        proceedings have not attended a conference as mentioned in paragraph
        (a); or

   (c)  the court is satisfied that, having regard to the counselling and
        welfare facilities of the court, it is not practicable to require the
        parties to the proceedings to attend a conference as mentioned in
        paragraph (a).'';

   (e)  by omitting sub-sections (2), (3) and (4) and substituting the
        following sub-section:

''(2) Without limiting the generality of sub-section (1), in proceedings with
respect to the custody, guardianship or welfare of, or access to, a child of
a marriage, the court may, if it is satisfied that it is desirable to do so,
make one or more of the following orders:

   (a)  an order placing the child in the custody of any person or of any 2 or
        more persons jointly (whether or not that person or any of those
        persons is a party to the marriage);

   (b)  an order placing the child in the guardianship of any person or of any
        2 or more persons jointly (whether or not that person or any of those
        persons is a party to the marriage);

   (c)  an order granting to any person (whether or not that person is a party
        to the marriage) rights of access to the child'';

   (f)  by omitting sub-section (5) and substituting the following
        sub-section:

''(5) Where a court makes an order under this Part with respect to a child,
the court may also, if it thinks the welfare of the child so requires, make
one or both of the following orders:

   (a)  an order that compliance with the first-mentioned order shall, as far
        as practicable, be supervised by a court counsellor or welfare
        officer;

   (b)  an order that a court counsellor or welfare officer give to any party
        to the first-mentioned order such assistance as is reasonably
        requested by that party in relation to compliance with, and the
        carrying out of, the first-mentioned order.'';

   (g)  by omitting sub-section (8); and

   (h)  by inserting after sub-section (11) the following sub-sections:

''(11A) Where-

   (a)  a warrant has been issued under sub-section (9) or (10) in relation to
        a child; and

   (b)  the court that issued the warrant, or another court exercising
        jurisdiction under this Act, is satisfied that a person (in this
        sub-section referred to as the 'relevant person') is likely to have
        information in relation to the child or in relation to a person who
        the court has reasonable cause to believe has possession of the child,

the court may order the relevant person to furnish, to an officer of the court
specified in the order, such information (if any) as the relevant person has
in relation to the address at which the child, or the person who the court has
reasonable cause to believe has possession of the child, may be found.

''(11B) Where-

   (a)  a warrant has been issued under sub-section (9) or (10) in relation to
        a child; and

   (b)  the court that issued the warrant, or another court exercising
        jurisdiction under this Act, is satisfied that the records of a
        Department of State of the Commonwealth or a Commonwealth
        instrumentality are likely to contain information in relation to the
        child or in relation to a person who the court has reasonable cause to
        believe has possession of the child,

the court may order the Permanent Head of the Department or the person who
holds an office or position specified in the order in, or in relation to, the
Commonwealth instrumentality, as the case may be, to furnish, to an officer of
the court specified in the order, such information (if any) as is contained in
the records of the Department or the Commonwealth instrumentality, as the case
may be, in relation to the address at which the child, or the person who the
court has reasonable cause to believe has possession of the child, may be
found and, where such an order is made, the Permanent Head of the Department
or the person who holds that office or position, as the case may be, shall
comply with that order notwithstanding anything contained in any other Act.''.