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FAMILY LAW REFORM ACT 1995 No. 167 of 1995 - SECT 31
Repeal of Part VII and substitution of new Part
31. Part VII of the Principal Act is repealed and the following Part is
substituted:
"PART VII - CHILDREN
"Division 1 - Introductory
"Subdivision A - What this Division does
What this Division does
"60A. This Division contains:
(a) a statement of the object of this Part and the principles underlying
it, and an outline of this Part (Subdivision B); and
(b) provisions relevant to the interpretation and application of this Part
(Subdivision C); and
(c) provisions relevant to how this Act applies to certain children
(Subdivision D). Note: The extension and application of this Part is
also dealt with in Subdivision F of Division 12.
"Subdivision B - Object, principles and outline Object of Part and principles
underlying it
"60B.(1) The object of this Part is to ensure that children receive adequate
and proper parenting to help them achieve their full potential, and to ensure
that parents fulfil their duties, and meet their responsibilities, concerning
the care, welfare and development of their children.
"(2) The principles underlying these objects are that, except when it is or
would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both their
parents, regardless of whether their parents are married, separated,
have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their
parents and with other people significant to their care, welfare and
development; and
(c) parents share duties and responsibilities concerning the care, welfare
and development of their children; and
(d) parents should agree about the future parenting of their children.
Outline of Part
"60C. An outline of this Part is set out below.
OUTLINE OF PART
Item Divisions and coverage
1 Division 1 - Introductory
. object of Part and principles underlying it, and outline
of Part
. interpretation and application of this Part
. how this Act applies to certain children Note: The extension and application
of this Part is also dealt with in Subdivision F of Division 12.
2 Division 2 - Parental responsibility
. the concept of parental responsibility
3 Division 3 - Counselling etc.
. counselling of people in relation to matters affecting
children
. preparation of reports for use in proceedings relating to
children under 18
. provision of documents about counselling and welfare
4 Division 4 - Parenting plans
. what parenting plans are and their registration in courts
5 Division 5 - Parenting orders - what they are
. what parenting orders are
6 Division 6 - Parenting orders other than child maintenance
orders
. applying for and making parenting orders, other than child
maintenance orders
. general obligations created by residence orders, contact
orders and specific issues orders
. dealing with people who have been arrested
. obligations under parenting orders, other than child
maintenance orders, relating to taking or sending children
from Australia
7 Division 7 - Child maintenance orders
. objects and principles relevant to the making of child
maintenance orders
. the relationship between Division 7 and the Child Support
(Assessment) Act 1989
. applying for and making child maintenance orders
. other aspects of courts' powers in relation to child
maintenance orders
. when child maintenance orders stop being in force
8 Division 8 - Other matters relating to children
. liability of a father to contribute towards child bearing
expenses if he is not married to the child's mother
. orders for the location and recovery of children
. reporting of allegations of child abuse
. other orders about children
9 Division 9 - Injunctions
. proceedings for injunctions in relation to children
10 Division 10 - The best interests of children and Division 10
- the representation of children
. determining what is in a child's best interests (including
in situations of family violence)
. separate representation of children
11 Division 11 - Family violence
. the relationship between certain contact orders etc. and
family violence orders
12 Division 12 - Proceedings and jurisdiction
. institution of proceedings and procedure
. jurisdiction of courts
. presumptions of parentage
. parentage evidence
. places and people to which this Part extends and applies
13 Division 13 - State, Territory and overseas orders
. registration of State and Territory orders dealing with
children
. registration of overseas orders dealing with children
. transmission of Australian orders to overseas jurisdictions
14 Division 14 - Miscellaneous
. miscellaneous matters relating to children
"Subdivision C - Interpretation and application of Part Defined expressions
"60D.(1) In this Part:
'abuse', in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an
offence under a law, written or unwritten, in force in the State or
Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or
another person in which the child is used, directly or indirectly, as
a sexual object by the first-mentioned person or the other person, and
where there is unequal power in the relationship between the child and
the first-mentioned person;
'adopted', in relation to a child, means adopted under the law of any place
(whether in or out of Australia) relating to the adoption of children;
'artificial conception procedure' includes:
(a) artificial insemination; and
(b) the implantation of an embryo in the body of a woman;
'birth' includes stillbirth;
'child' includes an adopted child and a stillborn child;
'childbirth maintenance period', in relation to the birth of a child, means
the period:
(a) commencing:
(i) in a case where the mother:
(A) works in paid employment; and
(B) is advised by a medical practitioner to stop working for
medical reasons related to her pregnancy; and
(C) stops working after being so advised and more than 2
months before the child is due to be born; on the day on
which she stops working; or
(ii) in any other case - 2 months before the child is due to be
born; and
(b) ending 3 months after the child's birth;
'child maintenance order' has the meaning given by subsection 64B(5);
'child maintenance provisions', in relation to a parenting plan, has the
meaning given by subsection 63C(5);
'child welfare law' means a law of a State or Territory prescribed, or
included in a class of laws of a State or Territory prescribed, for the
purposes of this definition;
'child welfare officer', in relation to a State or Territory, means:
(a) a person who, because he or she holds, or performs the duties of, a
prescribed office of the State or Territory, has responsibilities in
relation to a child welfare law of the State or Territory; or
(b) a person authorised in writing by such a person for the purposes of
this Part;
'child welfare provisions', in relation to a parenting plan, has the meaning
given by subsection 63C(4);
'contact order' has the meaning given by subsection 64B(4);
'de facto relationship' means the relationship between a man and a woman who
live with each other as spouses on a genuine domestic basis although not
legally married to each other;
'education' includes apprenticeship or vocational training;
'family violence' means conduct, whether actual or threatened, by a person
towards, or towards the property of, a member of the person's family that
causes that or any other member of the person's family to fear for, or to be
apprehensive about, his or her personal well being or safety;
'family violence order' means an order (including an interim order) made under
a prescribed law of a State or Territory to protect a person from family
violence;
'guardian', in relation to a child, includes a person who has been granted
(whether alone or jointly with another person or other persons) guardianship
of the child under the law of the Commonwealth or of a State or Territory;
'has', in relation to a residence order, a contact order or a specific issues
order, has the meaning given by subsection 64B(8);
'interests', in relation to a child, includes matters related to the care,
welfare or development of the child;
'made in favour', in relation to a residence order, a contact order or a
specific issues order, has the meaning given by subsection 64B(7);
'medical expenses' includes medical, surgical, dental, diagnostic, hospital,
nursing, pharmaceutical and physiotherapy expenses;
'medical practitioner' means a person registered or licensed as a medical
practitioner under a law of a State or Territory that provides for the
registration or licensing of medical practitioners;
'member of the Court personnel' means:
(a) a court counsellor; or
(b) a court mediator; or
(c) an approved arbitrator; or
(d) a welfare officer; or
(e) the Registrar or a Deputy Registrar of a Registry of the Family Court
of Australia; or
(f) the Registrar or a Deputy Registrar of the Family Court of Western
Australia;
'member of the family', in relation to a person, has, for the purposes of this
section, paragraphs 68F(2)(i) and (j) and section 68J, the meaning given by
subsection (2);
'parent', in relation to a child who has been adopted, means an adoptive
parent of the child;
'parentage testing order' has the meaning given by subsection 69W(1);
'parentage testing procedure' means a medical procedure prescribed, or
included in a class of medical procedures prescribed, for the purposes of this
definition;
'parental responsibility' has the meaning given by section 61B;
'parenting order' has the meaning given by subsection 64B(1);
'parenting plan' has the meaning given by subsection 63C(1);
'prescribed adopting parent', in relation to a child, means:
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent
of the child; or
(c) a parent of the child and either his or her spouse or a person in a de
facto relationship with the parent;
'prescribed child welfare authority', in relation to abuse of a child, means:
(a) if the child is the subject of proceedings under this Part in a State
or Territory - an officer of the State or Territory who is responsible
for the administration of the child welfare laws of the State or
Territory, or some other prescribed person; or
(b) if the child is not the subject of proceedings under this Part - an
officer of the State or Territory in which the child is located or is
believed to be located who is responsible for the administration of
the child welfare laws of the State or Territory, or some other
prescribed person;
'professional ethics' includes:
(a) rules of professional conduct; and
(b) rules of professional etiquette; and
(c) a code of ethics; and
(d) standards of professional conduct;
'residence order' has the meaning given by subsection 64B(3);
'specific issues order' has the meaning given by subsection 64B(6);
'step-parent', in relation to a child, means a person who:
(a) is not a parent of the child; and
(b) is or has been married to a parent of the child; and
(c) treats, or at any time during the marriage treated, the child as a
member of the family formed with the parent.
"(2) For the purposes of this section, paragraphs 68F(2)(i) and (j) and
section 68J, a person (the 'first person') is a member of the family of
another person (the 'second person') if:
(a) the first person is or has been married to, or in a de facto
relationship with, the second person; or
(b) the first person is or has been a relative of the second person (as
defined in subsection (3)); or
(c) an order under this Act described in subparagraph (i) or (ii) is or
was (at any time) in force:
(i) a residence order, contact order or specific issues order that
relates to a child who is either the first person or the second
person and that is in favour of the other of those persons;
(ii) an order providing for the first person or the second person to
have custody or guardianship of, or a right of access to, the
other of those persons; or
(d) an order under a law of a State or Territory described in subparagraph
(i) or (ii) is or was (at any time) in force:
(i) an order determining that the first person or the second person
is or was to live with the other of those persons, or is or was
to have custody or guardianship of the other of those persons;
(ii) an order providing for contact between the first person and the
second person, or for the first person or the second person to
have a right of access to the other of those persons; or
(e) the first person ordinarily or regularly resides or resided with the
second person, or with another member of the family of the second
person; or
(f) the first person is or has been a member of the family of a child of
the second person.
"(3) For the purposes of this section, a relative of a person is:
(a) a father, mother, grandfather, grandmother, step-father or step-mother
of the person; or
(b) a son, daughter, grandson, grand-daughter, step-son or step-daughter
of the person; or
(c) a brother, sister, half-brother, half-sister, step-brother or
step-sister of the person; or
(d) an uncle or aunt of the person; or
(e) a nephew or niece of the person; or
(f) a cousin of the person; or
(g) if the person is or was married - in addition to paragraphs (a) to
(f), a person who is or was a relative, of the kind described in any
of those paragraphs, of the person's spouse; or
(h) if the person is or was in a de facto relationship with another person
- in addition to paragraphs (a) to (f), a person who would be a
relative of a kind described in any of those paragraphs if the persons
in that de facto relationship were or had been married to each other.
Application of Part to void marriages
"60E. This Part applies in relation to a purported marriage that is void as
if:
(a) the purported marriage were a marriage; and
(b) the parties to the purported marriage were husband and wife.
"Subdivision D - Interpretation - how this Act applies
to certain children Certain children are children of marriage etc.
"60F.(1) A reference in this Act to a child of a marriage includes, subject to
subsection (3), a reference to each of the following children:
(a) a child adopted since the marriage by the husband and wife or by
either of them with the consent of the other;
(b) a child of the husband and wife born before the marriage;
(c) a child who is, under subsection 60H(1), the child of the husband and
wife.
"(2) A reference in this Act to a child of a marriage includes a reference to
a child of:
(a) a marriage that has been dissolved or annulled, in Australia or
elsewhere; or
(b) a marriage that has been terminated by the death of one party to the
marriage.
"(3) A child of a marriage who is adopted by a person who, before the
adoption, is not a prescribed adopting parent ceases to be a child of that
marriage for the purposes of this Act.
"(4) The following provisions apply in relation to a child of a marriage who
is adopted by a prescribed adopting parent:
(a) if a court granted leave under section 60G for the adoption
proceedings to be commenced - the child ceases to be a child of the
marriage for the purposes of this Act;
(b) in any other case - the child continues to be a child of the marriage
for the purposes of this Act. Family Court may grant leave for
adoption proceedings by prescribed adopting parent
"60G.(1) Subject to subsection (2), the Family Court, the Supreme Court of the
Northern Territory or the Family Court of a State may grant leave for
proceedings to be commenced for the adoption of a child by a prescribed
adopting parent.
"(2) In proceedings for leave under subsection (1), the court must consider
whether granting leave would be in the child's best interests, having regard
to the effect of paragraph 60F(4)(a) and of sections 61E and 65J. Note:
Division 10 deals with how a court determines a child's best interests.
Children born as a result of artificial conception procedures
"60H.(1) If:
(a) a child is born to a woman as a result of the carrying out of an
artificial conception procedure while the woman was married to a man;
and
(b) either of the following paragraphs apply:
(i) the procedure was carried out with their consent;
(ii) under a prescribed law of the Commonwealth or of a State or
Territory, the child is a child of the woman and of the man;
then, whether or not the child is biologically a child of the
woman and of the man, the child is their child for the purposes
of this Act.
"(2) If:
(a) a child is born to a woman as a result of the carrying out of an
artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory,
the child is a child of the woman; then, whether or not the child is
biologically a child of the woman, the child is her child for the
purposes of this Act.
"(3) If:
(a) a child is born to a woman as a result of the carrying out of an
artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory,
the child is a child of a man; then, whether or not the child is
biologically a child of the man, the child is his child for the
purposes of this Act.
"(4) If a person lives with another person as the husband or wife of the
first-mentioned person on a genuine domestic basis although not legally
married to that person, subsection (1) applies in relation to them as if:
(a) they were married to each other; and
(b) neither person were married to any other person.
"(5) For the purposes of subsection (1), a person is to be presumed to have
consented to an artificial conception procedure being carried out unless it is
proved, on the balance of probabilities, that the person did not consent.
"Division 2 - Parental responsibility
What this Division does
"61A. This Division deals with the concept of parental responsibility
including, in particular:
(a) what parental responsibility is; and
(b) who has parental responsibility.
Meaning of "parental responsibility"
"61B. In this Part, 'parental responsibility', in relation to a child, means
all the duties, powers, responsibilities and authority which, by law, parents
have in relation to children. Each parent has parental responsibility (subject
to court orders)
"61C.(1) Each of the parents of a child who is not 18 has parental
responsibility for the child.
"(2) Subsection (1) has effect despite any changes in the nature of the
relationships of the child's parents. It is not affected, for example, by the
parents becoming separated or by either or both of them marrying or
re-marrying.
"(3) Subsection (1) has effect subject to any order of a court for the time
being in force (whether or not made under this Act and whether made before or
after the commencement of this section). Parenting orders and
parental responsibility
"61D.(1) A parenting order confers parental responsibility for a child on a
person, but only to the extent to which the order confers on the person
duties, powers, responsibilities or authority in relation to the child.
"(2) A parenting order in relation to a child does not take away or diminish
any aspect of the parental responsibility of any person for the child except
to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order. Effect of adoption on
parental responsibility
"61E.(1) This section applies if:
(a) a child is adopted; and
(b) immediately before the adoption, a person had parental responsibility
for the child, whether in full or to a limited extent and whether
because of section 61C or because of a parenting order.
"(2) The person's parental responsibility for the child ends on the adoption
of the child, unless the adoption is by a prescribed adopting parent and leave
was not granted under section 60G for the adoption proceedings to be
commenced.
"Division 3 - Counselling etc. What this Division does
"62A. This Division deals with:
(a) the counselling of people in relation to matters affecting children;
and
(b) the preparation of reports for use in proceedings relating to children
who are under 18; and
(c) the provision of documents about counselling and welfare. Obligations
to consider advising people about counselling for Part VII orders
"62B.(1) In this section, counselling for Part VII orders is counselling to
assist children and parties to proceedings under this Part to adjust to the
consequences of orders under this Part.
"(2) A court exercising jurisdiction in proceedings under this Part must
consider whether or not to advise parties to the proceedings about counselling
for Part VII orders available through courts exercising jurisdiction under
this Part and through approved counselling organisations.
"(3) A legal practitioner acting in proceedings under this Part, or consulted
by a person considering commencing such proceedings, must consider whether or
not to advise the parties to the proceedings, or the person considering
commencing proceedings, about counselling for Part VII orders available
through courts exercising jurisdiction under this Part and through approved
counselling organisations. Request for counselling - request made through
court
"62C.(1) A party to proceedings under this Part, or a person representing a
child under an order made under section 68L, may file in the Family Court or a
Family Court of a State a notice stating that he or she wishes to have the
assistance of the counselling facilities of that Court.
"(2) On the filing of the notice, the Principal Director of Court Counselling
of the Family Court or an appropriate officer of the Family Court of the
State, as the case may be, must arrange for parties to the proceedings (with
or without the child) to be interviewed by a family and child counsellor or
welfare officer to assess whether counselling is appropriate in all the
circumstances, and if it is:
(a) to discuss the care, welfare and development of the child; and
(b) if there are differences between the parties in relation to matters
affecting the care, welfare and development of the child, to try to
resolve those differences. Request for counselling - where made direct
to a family and child counsellor
"62D. A person may at any time request a family and child counsellor to
provide counselling about a matter relating to a child. Court counselling
facilities to be made available
"62E.(1) A parent of a child, a child or a party to proceedings under this
Part may seek the assistance of the counselling facilities of the Family Court
or a Family Court of a State.
"(2) The Principal Director of Court Counselling of the Family Court or an
appropriate officer of the Family Court of the State, as the case may be,
must, as far as practicable, make those facilities available. Conferences with
family and child counsellors or welfare officers
"62F.(1) This section applies if, in proceedings under this Act, the care,
welfare and development of a child who is under 18 is relevant.
"(2) The court may, at any stage of the proceedings, make an order directing
the parties to the proceedings to attend a conference with a family and child
counsellor or welfare officer:
(a) to discuss the care, welfare and development of the child; and
(b) if there are differences between the parties in relation to matters
affecting the care, welfare and development of the child - to try to
resolve those differences.
"(3) The court may make an order under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a person representing the child under an order made under
section 68L.
"(4) The court may, in an order under subsection (2):
(a) fix a place and time for the conference to take place; or
(b) direct that the conference is to take place at a place and time to be
fixed by a family and child counsellor or welfare officer.
"(5) If a person fails to attend a conference in respect of which the court
has made an order under subsection (2), the counsellor or welfare officer must
report the failure to the court.
"(6) On receiving a report under subsection (5), the court may give such
further directions in relation to the conference as it considers appropriate.
"(7) The court may make further directions under subsection (6):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a person representing the child under an order made under
section 68L.
"(8) Evidence of anything said, or of any admission made, at a conference that
takes place pursuant to an order under subsection (2) is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the
Commonwealth or of a State or Territory, or by consent of the parties,
to hear evidence. Reports by family and child counsellors and welfare
officers
"62G.(1) This section applies if, in proceedings under this Act, the care,
welfare and development of a child who is under 18 is relevant.
"(2) The court may direct a family and child counsellor or welfare officer to
give the court a report on such matters relevant to the proceedings as the
court thinks desirable.
"(3) If the court makes a direction under subsection (2), it may, if it thinks
it necessary, adjourn the proceedings until the report has been given to the
court.
"(4) A counsellor or welfare officer may include in a report prepared pursuant
to a direction under subsection (2), in addition to the matters required to be
included in it, any other matters that relate to the care, welfare or
development of the child.
"(5) For the purpose of the preparation of a report pursuant to a direction
under subsection (2), the court may make such orders, or give such further
directions, as it considers appropriate, including orders or directions for
the attendance on the counsellor or welfare officer of a party to the
proceedings or of the child.
"(6) If a person fails to comply with an order or direction under subsection
(5), the counsellor or welfare officer must report the failure to the court.
"(7) On receiving a report under subsection (6), the court may give such
further directions in relation to the preparation of the report as it
considers appropriate.
"(8) A report given to the court pursuant to a direction under subsection (2)
may be received in evidence in any proceedings under this Act. Provision of
certain documents
"62H. The Rules of Court must provide for people proposing to institute
proceedings under this Part in relation to children, and in appropriate cases
to other persons who may be interested in the care, welfare and development of
children, to be given documents setting out:
(a) the legal and possible social effects of the proposed proceedings; and
(b) the counselling and welfare facilities available within the Family
Court and elsewhere.
"Division 4 - Parenting plans
What this Division does
"63A. This Division explains what parenting plans are and provides for their
registration in courts. Parents encouraged to reach agreement
"63B. The parents of a child are encouraged:
(a) to agree about matters concerning the child rather than seeking an
order from a court; and
(b) in reaching their agreement, to regard the best interests of the child
as the paramount consideration.
Meaning of "parenting plan" and related terms
"63C.(1) A parenting plan is an agreement that:
(a) is in writing; and
(b) is or was made between the parents of a child; and
(c) deals with a matter or matters mentioned in subsection (2).
"(2) A parenting plan may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) contact between a child and another person or other persons;
(c) maintenance of a child;
(d) any other aspect of parental responsibility for a child.
"(3) An agreement may be a parenting plan:
(a) whether made before or after the commencement of this section; and
(b) whether made inside or outside Australia; and
(c) whether other persons as well as a child's parents are also parties;
and
(d) whether it deals with other matters as well as matters mentioned in
subsection (2).
"(4) Provisions of a parenting plan that deal with any of the matters
mentioned in paragraphs (2)(a), (b) and (d) are child welfare provisions.
"(5) Provisions of a parenting plan that deal with the matter mentioned in
paragraph (2)(c) are child maintenance provisions. Parenting plan may not be
varied, but may be revoked, by further agreement
"63D.(1) An agreement, in whatever form and however expressed, is not
effective to vary a parenting plan for the purposes of this Act. An agreement
purporting to vary a parenting plan cannot be registered under section 63E.
"(2) Subject to subsection (3), a parenting plan may be revoked by agreement
in writing between the parties to the plan.
"(3) An agreement revoking a registered parenting plan:
(a) may, subject to the Rules of Court, be registered under section 63E as
if it were a parenting plan; and
(b) does not have effect to revoke the plan until it is so registered.
Registration in a court
"63E.(1) Subject to this section, a parenting plan may be registered in a
court having jurisdiction under this Part.
"(2) To apply for registration of a parenting plan:
(a) an application for registration of the plan must be lodged in
accordance with the Rules of Court; and
(b) the application must be accompanied by a copy of the plan, the
information required by the Rules of Court, and:
(i) a statement, in relation to each party, that is to the effect
that the party has been provided with independent legal advice
as to the meaning and effect of the plan and that is signed by
the practitioner who provided that advice; or
(ii) a statement to the effect that the plan was developed after
consultation with a family and child counsellor (as defined in
section 4) and that is signed by the counsellor.
"(3) The court may register the plan if it considers it appropriate to do so
having regard to the best interests of the child to which the plan relates. In
determining whether it is appropriate to register the plan, the court:
(a) must have regard to the information accompanying the application for
registration; and
(b) may, but is not required to, have regard to all or any of the matters
set out in subsection 68F(2).
"(4) The Rules of Court:
(a) must prescribe what information is to accompany an application for
registration of a parenting plan; and
(b) may prescribe other matters relating to the procedures for
registration. Child welfare provisions of registered parenting plans
"63F.(1) This section applies if a parenting plan that contains child welfare
provisions is registered in a court under section 63E.
"(2) The court may, by order, vary the child welfare provisions in the plan if
it considers the variation is required in the best interests of a child.
"(3) The child welfare provisions have effect, subject to subsections (5) and
(6), as if they were:
(a) to the extent they deal with the person or persons with whom the child
is to live - a residence order made by the court; and
(b) to the extent they deal with contact between the child and another
person or other persons - a contact order made by the court; and
(c) to the extent they deal with any other aspect of parental
responsibility for the child - a specific issues order made by the
court. Note: Provisions of this Act relevant to the child welfare
provisions having effect as provided in this subsection include:
(a) Subdivisions C, D and E of Division 6 of this Part (dealing with
obligations created by residence orders, contact orders and specific
issues orders); and
(b) Parts XIII and XIIIA (dealing generally with enforcement of orders and
sanctions for contravening orders); and
(c) subsection 65D(2) (providing for discharge, variation, suspension and
revival of parenting orders other than child maintenance orders); and
(d) other provisions of this Act (including subsections 64B(7) and (8))
that refer to parenting orders, or to residence orders, contact orders
or specific issues orders.
"(4) If provisions of the plan have effect under subsection (3) as a court
order, a person who is a party to the plan is taken (for example, for the
purposes of section 65Y) to be a party to the proceedings in which the order
was made.
"(5) Subsection (3) does not apply to the plan (whenever registered) to the
extent (if at all) that the plan purports to determine that the child
concerned is to live with a person who is not a parent of the child.
"(6) Even though the plan is registered, the court, or another court having
jurisdiction under this Part, must not enforce the child welfare provisions if
it considers that to do so would be contrary to the best interests of a child.
Note: Division 10 deals with how a court determines a child's best interests.
Child maintenance provisions of registered parenting plans - where not
enforceable as maintenance agreements
"63G.(1) This section applies if:
(a) a parenting plan that contains child maintenance provisions is
registered in a court under section 63E; and
(b) the plan is not a maintenance agreement, or, if it is a maintenance
agreement, the child concerned is not a child of the relevant
marriage.
"(2) The child maintenance provisions have effect, subject to subsections (3),
(4) and (5), as if they were a child maintenance order made by the court.
Note: Provisions of this Act relevant to the child maintenance provisions
having effect as a child maintenance order include:
(a) Parts XIII and XIIIA (dealing generally with enforcement of orders and
sanctions for contravening orders); and
(b) section 66S (providing for discharge, variation, suspension and
revival of child maintenance orders); and
(c) other provisions of this Act that refer to parenting orders, or to
child maintenance orders.
"(3) Unless the plan provides otherwise, the child maintenance provisions
(other than provisions for the periodic payment of maintenance) continue to
operate in spite of the death of a party to the plan and operate in favour of,
and are binding on, the legal personal representative of that party.
"(4) If the child maintenance provisions include provisions (the 'periodic
provisions') for the periodic payment of maintenance:
(a) the periodic provisions continue to operate, if the plan so provides,
in spite of the death of a party to the plan who is liable to make the
periodic payments, and are binding on the legal personal
representative of that party; but
(b) the periodic provisions do not continue to operate, in spite of
anything in the plan, after the death of the person entitled to
receive the periodic payments.
"(5) The child maintenance provisions have no effect, and are not enforceable
in any way, at any time when an application could properly be made under the
Child Support (Assessment) Act 1989 by one of the parties to the plan for
administrative assessment of child support (within the meaning of that Act)
for the child concerned seeking payment of child support by the other party to
the plan.
"(6) Subsection (5) has effect whether or not an application for
administrative assessment of child support for the child has in fact been made
by a party to the plan. Court's powers to set aside, discharge, vary, suspend
or revive registered parenting plans
"63H.(1) The court in which a parenting plan is registered under section 63E
may set aside the plan, and its registration, if the court is satisfied:
(a) that the concurrence of a party was obtained by fraud, duress or undue
influence; or
(b) that the parties want the plan set aside; or
(c) that it is in the best interests of a child to set aside the plan.
"(2) In proceedings under subsection (1), to the extent that they are
proceedings on the ground mentioned in paragraph (1)(c), the best interests of
the child concerned are the paramount consideration. Note: Division 10 deals
with how a court determines a child's best interests.
"(3) Other provisions of this Act under which provisions of the parenting plan
may be set aside or otherwise affected are:
(a) subsection 63F(2) - under that subsection a court may vary child
welfare provisions in the plan; and
(b) subsection 65D(2) - under that subsection a court may make a parenting
order that discharges, varies, suspends or revives provisions of the
plan that have effect as if they were a parenting order (other than a
child maintenance order); and
(c) section 66S - under that section a court may discharge, vary, suspend
or revive provisions of the plan that have effect as if they were a
child maintenance order.
"(4) Except as permitted by subsection (1) or by a provision mentioned in
subsection (3), a court must not set aside, discharge, vary, suspend or revive
the whole or a part of the parenting plan.
"Division 5 - Parenting orders - what they are What this Division does
"64A. This Division explains what parenting orders are.
Meaning of "parenting order" and related terms
"64B.(1) A parenting order is:
(a) an order under this Part (including an order until further order)
dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving
an order, or part of an order, described in paragraph (a).
"(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) contact between a child and another person or other persons;
(c) maintenance of a child;
(d) any other aspect of parental responsibility for a child.
"(3) To the extent (if at all) that a parenting order deals with the matter
mentioned in paragraph (2)(a), the order is a residence order.
"(4) To the extent (if at all) that a parenting order deals with the matter
mentioned in paragraph (2)(b), the order is a contact order.
"(5) To the extent (if at all) that a parenting order deals with the matter
mentioned in paragraph (2)(c), the order is a child maintenance order.
"(6) To the extent (if at all) that a parenting order deals with any other
aspect of parental responsibility for a child, the order is a specific issues
order. A specific issues order may, for example, confer on a person (whether
alone or jointly with another person) responsibility for the long-term care,
welfare and development of the child or for the day-to-day care, welfare and
development of the child.
"(7) For the purposes of this Act:
(a) a residence order is made in favour of a person, or the person, with
whom the child concerned is supposed to live under the order; and
(b) a contact order is made in favour of a person, or the person, with
whom the child concerned is supposed to have contact under the order;
and
(c) a specific issues order is made in favour of a person, or the person,
on whom the order confers duties, powers, responsibilities or
authority in relation to the child concerned.
"(8) For the purposes of this Act:
(a) a person has a residence order in relation to a child if a residence
order made in favour of the person is in force in relation to the
child; and
(b) a person has a contact order in relation to a child if a contact order
made in favour of the person is in force in relation to the child; and
(c) a person has a specific issues order in relation to a child if a
specific issues order made in favour of the person is in force in
relation to the child. Parenting orders may be made in favour of
parents or other persons
"64C. A parenting order in relation to a child may be made in favour of a
parent of the child or some other person.
"Division 6 - Parenting orders other than child maintenance orders
"Subdivision A - Introductory
What this Division does
"65A. This Division deals with:
(a) applying for and making parenting orders, other than child maintenance
orders (Subdivision B); and
(b) the general obligations created by residence orders, contact orders
and specific issues orders (Subdivision C); and
(c) dealing with people who have been arrested (Subdivision D); and
(d) the obligations under parenting orders, other than child maintenance
orders, relating to taking or sending children from Australia
(Subdivision E). Division does not apply to child maintenance orders
"65B. This Division does not apply to parenting orders to the extent that they
consist of child maintenance orders. Child maintenance orders are dealt with
in Division 7.
"Subdivision B - Applying for and making parenting orders Who may apply for a
parenting order
"65C. A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(c) any other person concerned with the care, welfare or development of
the child. Court's power to make parenting order
"65D.(1) In proceedings for a parenting order, the court may, subject to this
Division, make such parenting order as it thinks proper.
"(2) Without limiting the generality of subsection (1) and subject to this
Division, a court may make a parenting order that discharges, varies, suspends
or revives some or all of an earlier parenting order. Child's best interests
paramount consideration in making a parenting order
"65E. In deciding whether to make a particular parenting order in relation to
a child, a court must regard the best interests of the child as the paramount
consideration. Note: Division 10 deals with how a court determines a child's
best interests. General requirements for counselling before parenting order
made
"65F.(1) In proceedings for a parenting order in relation to a child, the
court may order the parties to the proceedings to attend a conference with a
family and child counsellor or a welfare officer to discuss the matter to
which the proceedings relate.
"(2) Subject to subsection (3), a court must not make a parenting order in
relation to a child unless:
(a) the parties to the proceedings have attended a conference with a
family and child counsellor or a welfare officer to discuss the matter
to which the proceedings relate; or
(b) the court is satisfied that there is an urgent need for the parenting
order, or there is some other special circumstance (such as family
violence), that makes it appropriate to make the order even though the
parties to the proceedings have not attended a conference as mentioned
in paragraph (a); or
(c) the court is satisfied that it is not practicable to require the
parties to the proceedings to attend a conference as mentioned in
paragraph (a).
"(3) Subsection (2) does not apply to the making of a parenting order if:
(a) it is made with the consent of all the parties to the proceedings; or
(b) it is an order until further order. Special conditions for making
residence order or specific issues order by consent in favour of
non-parent
"65G.(1) This section applies if:
(a) a court proposes to make:
(i) a residence order; or
(ii) a specific issues order under which a person will be
responsible for a child's long-term or day-to-day care, welfare
and development; and
(b) the court proposes to make that order:
(i) otherwise than in favour of a parent, or of persons who include
a parent, of the child concerned; and
(ii) with the consent of all the parties to the proceedings.
"(2) The court must not make the proposed order unless:
(a) these conditions are satisfied:
(i) the parties to the proceedings have attended a conference with
a family and child counsellor or a welfare officer to discuss
the matter to be determined by the proposed order; and
(ii) the court has considered a report prepared by the counsellor or
officer about that matter; or
(b) the court is satisfied that there are circumstances that make it
appropriate to make the proposed order even though the conditions in
paragraph (a) are not satisfied. Children who are 18 or over or who
have married or entered de facto relationships
"65H.(1) A parenting order must not be made in relation to a child who:
(a) is 18 or over; or
(b) is or has been married; or
(c) is in a de facto relationship.
"(2) A parenting order in relation to a child stops being in force if the
child turns 18, marries or enters into a de facto relationship.
"(3) A court having jurisdiction under this Part may make a declaration to the
effect that the child is in, or has entered into, a de facto relationship.
"(4) A declaration under subsection (3) has effect for the purposes of this
Act but does not have effect for any other purpose (including, for example,
other laws of the Commonwealth or laws of the States and Territories). Effect
of adoption on parenting order
"65J.(1) This section applies if:
(a) a child is adopted; and
(b) immediately before the adoption, a parenting order was in force in
relation to the child.
"(2) The parenting order stops being in force on the adoption of the child,
unless the adoption is by a prescribed adopting parent and leave was not
granted under section 60G for the adoption proceedings to be commenced. What
happens when parenting order that is or includes residence order does not make
provision in relation to death of parent with whom child lives
"65K.(1) This section applies if:
(a) a parenting order that is or includes a residence order is in force
determining that a child is to live with one of the child's parents;
and
(b) that parent dies; and
(c) the parenting order does not provide for what is to happen on that
parent's death.
"(2) The surviving parent cannot require the child to live with him or her.
"(3) The surviving parent, or another person (subject to section 65C), may
apply for the making of a residence order in relation to the child.
"(4) In an application under subsection (3) by a person who does not, at the
time of the application, have any parental responsibility for the child, any
person who, at that time, has any parental responsibility for the child is
entitled to be a party to the proceedings.
Counsellors may be required to supervise or assist compliance with parenting
orders
"65L.(1) If a court makes a parenting order in relation to a child, the court
may also, subject to subsection (2), make either or both of the following
orders:
(a) an order requiring compliance with the parenting order, as far as
practicable, to be supervised by a family and child counsellor or a
welfare officer;
(b) an order requiring a family and child counsellor or a welfare officer
to give any party to the parenting order such assistance as is
reasonably requested by that party in relation to compliance with, and
the carrying out of, the parenting order.
"(2) In deciding whether to make a particular order under subsection (1) in
relation to a child, a court must regard the best interests of the child as
the paramount consideration. Note: Division 10 deals with how a court
determines a child's best interests.
"Subdivision C - General obligations created by residence
orders, contact orders and specific issues orders General obligations created
by residence order
"65M.(1) This section applies if a residence order is in force in relation to
a child.
"(2) A person must not, contrary to the order:
(a) remove the child from the care of a person; or
(b) refuse or fail to deliver or return the child to a person; or
(c) interfere with the exercise or performance of any of the powers,
duties or responsibilities that a person has under the order. General
obligations created by contact order
"65N.(1) This section applies if a contact order is in force in relation to a
child.
"(2) A person must not:
(a) hinder or prevent a person and the child from having contact in
accordance with the order; or
(b) interfere with the contact that a person and the child are supposed to
have with each other under the order. General obligations created by
specific issues orders that confer responsibility for a child's care,
welfare and development
"65P.(1) This section applies if a specific issues order:
(a) is in force in relation to a child; and
(b) confers responsibility on a person (the 'carer') for the child's
long-term or day-to-day care, welfare and development.
"(2) A person must not hinder the carer in, or prevent the carer from,
discharging that responsibility. Court may issue warrant for arrest of alleged
offender
"65Q.(1) This section applies if:
(a) a residence order or a contact order is in force in relation to a
child; and
(b) a court having jurisdiction under this Part is satisfied, on
application by a person in whose favour the order was made, that there
are reasonable grounds for believing that a person (the 'alleged
offender') has contravened section 65M or 65N in relation to the
order; and
(c) there is an application before the court for the alleged offender to
be dealt with under section 112AD for the alleged contravention; and
(d) the court is satisfied that the issue of a warrant is necessary to
ensure that the alleged offender will attend before a court to be
dealt with under section 112AD for the alleged contravention.
"(2) The court may issue a warrant authorising a person to whom it is
addressed to arrest the alleged offender.
"(3) A warrant stops being in force:
(a) if a date not later than 6 months after the issue of the warrant is
specified in the warrant as the date when it stops being in force - on
that date; or
(b) otherwise - 6 months after the issue of the warrant.
"Subdivision D - Dealing with people who have been arrested Situation to which
Subdivision applies
"65R.(1) This Subdivision applies if a person:
(a) is arrested under a warrant issued under subsection 65Q(2); or
(b) is arrested without warrant under a recovery order.
"(2) In this Subdivision:
'alleged contravention' means the alleged contravention because of which the
alleged offender is arrested;
'alleged offender' means the person who is arrested;
'arresting person' means the person who arrests the alleged offender. Arrested
person to be brought before a court
"65S.(1) The arresting person must:
(a) ensure that the alleged offender is brought before a court having
jurisdiction under this Part before the end of the holding period
applicable under subsection (4); and
(b) take all reasonable steps to ensure that, before the alleged offender
is brought before a court, the person who applied for the warrant or
recovery order is aware:
(i) that the alleged offender has been arrested; and
(ii) of the court before which the alleged offender is to be
brought.
"(2) The alleged offender must not be released before the end of the holding
period except under an order of a court having jurisdiction under this Part.
"(3) This section does not authorise the holding in custody of the alleged
offender after the end of the holding period.
"(4) The holding period is:
(a) if a Saturday, Sunday or public holiday starts within 24 hours after
the arrest of the alleged offender - the longer of the following
periods:
(i) the period starting with the arrest and ending 48 hours later;
(ii) the period starting with the arrest and ending at the end of
the next day after the day of the arrest that is not a
Saturday, Sunday or public holiday; or
(b) in any other case - the period starting with the arrest and ending 24
hours later. Obligation of court - where application before it to deal
with contravention
"65T.(1) This section applies if:
(a) the alleged offender is brought before a court under section 65S; and
(b) there is an application before the court for the alleged offender to
be dealt with under section 112AD for the alleged contravention.
"(2) The court must, without delay, proceed to hear and determine the
application. Obligation of court - where no application before it, but
application before another court, to deal with contravention
"65U.(1) This section applies if:
(a) the alleged offender is brought before a court under section 65S; and
(b) there is no application, or no longer any application, before the
court for the alleged offender to be dealt with under section 112AD
for the alleged contravention; and
(c) the court is aware that there is an application before another court
for the alleged offender to be dealt with under section 112AD for the
alleged contravention.
"(2) The court must, without delay:
(a) order that the alleged offender is to be released from custody on his
or her entering into a recognizance (with or without surety or
security) that he or she will attend before the other court on a date,
at a time and at a place specified by the court; or
(b) order the arresting person to arrange for the alleged offender to be
brought before the other court on such date and at such time as the
court specifies, being a date and time such that the alleged offender
is to be brought before the other court as soon as practicable, and in
any event not more than 72 hours, after the order is made.
"(3) If a court makes an order under paragraph (2)(b) for the alleged offender
to be brought before another court:
(a) subject to paragraph (c), the alleged offender may be kept in custody
until he or she is brought before the other court; and
(b) if the alleged offender is brought before the other court as required
by the order, the other court must, without delay, proceed to hear and
determine the application mentioned in paragraph (1)(c); and
(c) if the alleged offender is not brought before the other court as
required by the order, he or she must be released without delay.
Obligation of court - where no application before any court to deal
with contravention
"65V.(1) This section applies if:
(a) the alleged offender is brought before a court under section 65S; and
(b) there is no application, or no longer any application, before the
court for the alleged offender to be dealt with under section 112AD
for the alleged contravention; and
(c) so far as the court is aware, there is no application, or no longer
any application, before any other court for the alleged offender to be
dealt with under section 112AD for the alleged contravention.
"(2) The court must, without delay, order the release of the alleged offender.
Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b)
"65W.(1) If a court hearing an application as required by subsection 65T(2) or
paragraph 65U(3)(b) adjourns the hearing, the court must:
(a) order the alleged offender to be kept in such custody as the court
considers appropriate during the adjournment; or
(b) order that the alleged offender is to be released from custody, either
on his or her entering into a recognizance (with or without surety or
security) that he or she will attend before the court on the
resumption of the hearing or otherwise.
"(2) This section does not authorise the holding in custody of the alleged
offender during an adjournment of proceedings that:
(a) is expressed to be for a period of more than 24 hours; or
(b) continues for more than 24 hours.
"Subdivision E - Obligations under parenting orders relating
to taking or sending children from Australia Interpretation
"65X.(1) In this Subdivision:
'captain', in relation to an aircraft or vessel, means the person in charge or
command of the aircraft or vessel;
'care order' means a specific issues order under which a person is responsible
for a child's long-term or day-to-day care, welfare and development;
'child' means a person who is under 18;
'pending' has a meaning affected by subsection (2).
"(2) For the purposes of this Subdivision, if an appeal against a decision of
a court in proceedings has been instituted and is pending, the proceedings are
taken to be pending and sections 65Z and 65ZB (rather than sections 65Y and
65ZA) apply. Obligations if residence order, contact order or care order has
been made
"65Y.(1) If a residence order, a contact order or a care order (the 'Part VII
order') is in force, a person who was a party to the proceedings in which the
order was made, or a person who is acting on behalf of, or at the request of,
a party, must not, intentionally or recklessly, take or send, or attempt to
take or send, the child concerned from Australia to a place outside Australia
except as permitted by subsection (2). Penalty: Imprisonment for 3 years.
"(2) Subsection (1) does not prohibit taking or sending, or attempting to take
or send, the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed)
of each person in whose favour the Part VII order was made; or
(b) it is done in accordance with an order of a court made, under this
Part or under a law of a State or Territory, at the time of, or after,
the making of the Part VII order. Obligations if proceedings for the
making of residence order, contact order or care order are pending
"65Z.(1) If proceedings (the 'Part VII proceedings') for the making of a
residence order, a contact order or a care order are pending, a person who is
a party to the proceedings, or who is acting on behalf of, or at the request
of, a party, must not, intentionally or recklessly, take or send, or attempt
to take or send, the child concerned from Australia to a place outside
Australia except as mentioned in subsection (2). Penalty: Imprisonment for 3
years.
"(2) Subsection (1) does not prohibit taking or sending, or attempting to take
or send, the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed)
of each other party to the Part VII proceedings; or
(b) it is done in accordance with an order of a court made, under this
Part or under a law of a State or Territory, after the institution of
the Part VII proceedings. Obligations of owners etc. of aircraft and
vessels if residence order, contact order or care order made
"65ZA.(1) This section applies if:
(a) a residence order, a contact order or a care order (the 'Part VII
order') is in force; and
(b) a person in whose favour the Part VII order was made has served on the
captain, owner or charterer of an aircraft or vessel a statutory
declaration made by the person not earlier than 7 days before the date
of service that:
(i) relates to the order; and
(ii) complies with subsection (4).
"(2) The person on whom the declaration is served must not, intentionally or
recklessly and without reasonable excuse, permit the child identified in the
declaration to leave a port or place in Australia in the aircraft or vessel
for a destination outside Australia except as permitted by subsection (3).
Penalty: 60 penalty units.
"(3) Subsection (2) does not prohibit permitting the child to leave Australia
in the aircraft or vessel if:
(a) the child leaves in the company, or with the consent in writing
(authenticated as prescribed), of the person who made the statutory
declaration; or
(b) the child leaves in accordance with an order of a court made, under
this Part or under a law of a State or Territory, at the time of, or
after, the making of the Part VII order.
"(4) The statutory declaration must contain:
(a) full particulars of the Part VII order, including:
(i) the full name and the date of birth of the child to whom the
order relates; and
(ii) the full names of the parties to the proceedings in which the
order was made; and
(iii) the terms of the order; and
(b) such other matters (if any) as are prescribed. Obligations of owners
etc. of aircraft and vessels if proceedings for the making of
residence order, contact order or care order are pending
"65ZB.(1) This section applies if:
(a) proceedings (the 'Part VII proceedings') for the making of a residence
order, a contact order or a care order are pending; and
(b) a party to the proceedings has served on the captain, owner or
charterer of a vessel a statutory declaration made by the party not
earlier than 7 days before the date of service that:
(i) relates to the proceedings; and
(ii) complies with subsection (4).
"(2) The person on whom the declaration is served must not, intentionally or
recklessly and without reasonable excuse, permit the child identified in the
declaration to leave a port or place in Australia in the aircraft or vessel
for a destination outside Australia except as permitted by subsection (3).
Penalty: 60 penalty units.
"(3) Subsection (2) does not prohibit permitting the child to leave Australia
in the aircraft or vessel if:
(a) the child leaves in the company, or with the consent in writing
(authenticated as prescribed), of the party who made the statutory
declaration; or
(b) in accordance with an order of a court made, under this Part or under
a law of a State or Territory, after the institution of the Part VII
proceedings.
"(4) The statutory declaration must contain:
(a) full particulars of the Part VII proceedings, including:
(i) the full name and the date of birth of the child to whom the
proceedings relate; and
(ii) the full names of the parties to the proceedings; and
(iii) the name of the court, the nature of the proceedings and the
date of institution of the proceedings; and
(iv) if an appeal has been instituted in the proceedings - the name
of the court in which the appeal was instituted and the date on
which it was instituted; and
(b) a statement that the Part VII proceedings are pending at the date of
the declaration; and
(c) such other matters (if any) as are prescribed. General provisions
applicable to sections 65ZA and 65ZB
"65ZC.(1) A declaration under section 65ZA or 65ZB may be served on the owner
or charterer of an aircraft or vessel, or on the agent of the owner of an
aircraft or vessel, by sending the declaration by registered post addressed to
the owner, charterer or agent at the principal place of business of the owner,
charterer or agent.
"(2) The captain, owner or charterer of an aircraft or vessel, or the agent of
the owner of an aircraft or vessel, is not liable in any civil or criminal
proceedings in respect of anything done in good faith for the purpose of
complying with section 65ZA or 65ZB.
"(3) If an act or omission by a person that constitutes an offence against
subsection 65ZA(2) or 65ZB(2) is also an offence against any other law, the
person may be prosecuted and convicted under that other law, but nothing in
this subsection makes a person liable to be punished twice in respect of the
same act or omission. State or Territory laws stopping children leaving
Australia not affected
"65ZD. Nothing in this Subdivision prevents or restricts the operation of any
law of a State or Territory under which:
(a) action may be taken to prevent a child from leaving Australia or being
taken or sent outside Australia; or
(b) a person may be punished in respect of the taking or sending of a
child outside Australia.
"Division 7 - Child maintenance orders
" Subdivision A - What this Division does What this Division does
"66A. This Division:
(a) contains statements of objects and principles relevant to the making
of child maintenance orders (Subdivision B); and
(b) deals with the relationship between this Division and the Child
Support (Assessment) Act 1989 (Subdivision C); and
(c) deals with applying for and making child maintenance orders
(Subdivision D); and
(d) deals with other aspects of courts' powers in relation to child
maintenance orders (Subdivision E); and
(e) deals with when child maintenance orders stop being in force
(Subdivision F).
"Subdivision B - Objects and principles
Objects
"66B.(1) The principal object of this Division is to ensure that children
receive a proper level of financial support from their parents.
"(2) Particular objects of this Division include ensuring:
(a) that children have their proper needs met from reasonable and adequate
shares in the income, earning capacity, property and financial
resources of both of their parents; and
(b) that parents share equitably in the support of their children.
Principles - parents have primary duty to maintain
"66C.(1) The parents of a child have, subject to this Division, the primary
duty to maintain the child.
"(2) Without limiting the generality of subsection (1), the duty of a parent
to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any
other child or another person; and
(b) has priority over all commitments of the parent other than commitments
necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the parent has a duty to
maintain; and
(c) is not affected by:
(i) the duty of any other person to maintain the child; or
(ii) any entitlement of the child or another person to an income
tested pension, allowance or benefit. Principles - when
step-parents have a duty to maintain
"66D.(1) The step-parent of a child has, subject to this Division, the duty of
maintaining a child if, and only if, a court, by order under section 66M,
determines that it is proper for the step-parent to have that duty.
"(2) Any duty of a step-parent to maintain a step-child:
(a) is a secondary duty subject to the primary duty of the parents of the
child to maintain the child; and
(b) does not derogate from the primary duty of the parents to maintain the
child.
"Subdivision C - Relationship with Child Support (Assessment) Act Child
maintenance order not to be made etc. if application for administrative
assessment of child support could be made
"66E.(1) A court having jurisdiction under this Part must not, at any time,
make, revive or vary a child maintenance order in relation to a child on the
application of a person (the 'applicant') against, or in favour of, a person
(the 'respondent') if an application could properly be made, at that time,
under the Child Support (Assessment) Act 1989 for administrative assessment of
child support (within the meaning of that Act):
(a) by the applicant seeking payment of child support for the child from
the respondent; or
(b) by the respondent seeking payment of child support for the child from
the applicant.
"(2) Subsection (1) has effect whether or not an application for
administrative assessment of child support for the child has in fact been made
(whether by the applicant, the respondent or another person).
"Subdivision D - Applying for and making child maintenance orders Who may
apply for a child maintenance order
"66F.(1) Unless subsection (2) applies, a child maintenance order in relation
to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(c) any other person concerned with the care, welfare or development of
the child.
"(2) A child maintenance order in relation to a child who is under the
guardianship, or in the care (however described), of a person under a child
welfare law may only be applied for by:
(a) the child; or
(b) a parent of the child who has the daily care of the child; or
(c) a relative of the child who has the daily care of the child; or
(d) a child welfare officer of the relevant State or Territory. Court's
power to make child maintenance order
"66G. In proceedings for a child maintenance order, the court may, subject to
this Division, make such child maintenance order as it thinks proper. Approach
to be taken in proceedings for child maintenance order "66H. In proceedings
for the making of a child maintenance order in relation to a child, the court
must:
(a) consider the financial support necessary for the maintenance of the
child (this is expanded on in section 66J); and
(b) determine the financial contribution, or respective financial
contributions, towards the financial support necessary for the
maintenance of the child, that should be made by a party, or by
parties, to the proceedings (this is expanded on in section 66K).
Matters to be taken into account in considering financial support
necessary for maintenance of child
"66J.(1) In considering the financial support necessary for the maintenance of
a child, the court must take into account these (and no other) matters:
(a) the matters mentioned in section 66B; and
(b) the proper needs of the child (this is expanded on in subsection (2));
and
(c) the income, earning capacity, property and financial resources of the
child (this is expanded on in subsection (3)).
"(2) In taking into account the proper needs of the child the court:
(a) must have regard to:
(i) the age of the child; and
(ii) the manner in which the child is being, and in which the
parents expected the child to be, educated or trained; and
(iii) any special needs of the child; and
(b) may have regard, to the extent to which the court considers
appropriate in the circumstances of the case, to any relevant findings
of published research in relation to the maintenance of children.
"(3) In taking into account the income, earning capacity, property and
financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income,
including any assets of, under the control of or held for the benefit
of the child that do not produce, but are capable of producing,
income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources
of any other person unless, in the special circumstances of the
case, the court considers it appropriate to have regard to
them; and
(ii) any entitlement of the child or any other person to an income
tested pension, allowance or benefit.
"(4) Subsections (2) and (3) do not limit, by implication, the matters to
which the court may have regard in taking into account the matters referred to
in subsection (1). Matters to be taken into account in determining
contribution that should be made by party etc.
"66K.(1) In determining the financial contribution, or respective financial
contributions, towards the financial support necessary for the maintenance of
a child that should be made by a party, or by parties, to the proceedings, the
court must take into account these (and no other) matters:
(a) the matters mentioned in sections 66B, 66C and 66D; and
(b) the income, earning capacity, property and financial resources of the
party or each of those parties (this is expanded on in subsection
(2)); and
(c) the commitments of the party, or each of those parties, that are
necessary to enable the party to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to
maintain; and
(d) the direct and indirect costs incurred by the parent or other person
with whom the child lives in providing care for the child (this is
expanded on in subsection (3)); and
(e) any special circumstances which, if not taken into account in the
particular case, would result in injustice or undue hardship to any
person.
"(2) In taking into account the income, earning capacity, property and
financial resources of a party to the proceedings, the court must have regard
to the capacity of the party to earn and derive income, including any assets
of, under the control of or held for the benefit of the party that do not
produce, but are capable of producing, income.
"(3) In taking into account the direct and indirect costs incurred by the
parent or other person with whom the child lives in providing care for the
child, the court must have regard to the income and earning capacity forgone
by the parent or other person in providing that care.
"(4) In determining the financial contribution, or respective financial
contributions, that should be made by a party, or by parties, to the
proceedings, the court must disregard:
(a) any entitlement of the child, or the person with whom the child lives,
to an income tested pension, allowance or benefit; and
(b) the income, earning capacity, property and financial resources of any
person who does not have a duty to maintain the child, or has such a
duty but is not a party to the proceedings, unless, in the special
circumstances of the case, the court considers it appropriate to have
regard to them.
"(5) In determining the financial contribution, or respective financial
contributions, that should be made by a party, or by parties, to the
proceedings, the court must consider the capacity of the party, or each of
those parties, to provide maintenance by way of periodic payments before
considering the capacity of the party, or each of those parties, to provide
maintenance:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property; or
(c) in any other way.
"(6) Subsections (2) to (5) do not limit, by implication, the matters to which
the court may have regard in taking into account the matters referred to in
subsection (1). Children who are 18 or over
"66L.(1) A court must not make a child maintenance order in relation to a
child who is 18 or over unless the court is satisfied that the provision of
the maintenance is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
"(2) A court must not make a child maintenance order in relation to a child
that extends beyond the day on which the child will turn 18 unless the court
is satisfied that the provision of the maintenance beyond that day is
necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
"(3) A child maintenance order in relation to a child stops being in force
when the child turns 18 unless the order is expressed to continue in force
after then. When step-parents have a duty to maintain
"66M.(1) Section 66D deals with when a step-parent of a child has a duty of
maintaining the child. One of the circumstances in which the step-parent has
that duty is if there is an order in force under this section.
"(2) A court having jurisdiction under this Part may, by order, determine that
it is proper for a step-parent to have a duty of maintaining a step-child.
"(3) In making an order under subsection (2), the court must have regard to
these (and no other) matters:
(a) the matters referred to in sections 60F, 66B and 66C; and
(b) the length and circumstances of the marriage to the relevant parent of
the child; and
(c) the relationship that has existed between the step-parent and the
child; and
(d) the arrangements that have existed for the maintenance of the child;
and
(e) any special circumstances which, if not taken into account in the
particular case, would result in injustice or undue hardship to any
person. Determining financial contribution of step-parent
"66N. In determining the financial contribution towards the financial support
necessary for the maintenance of the child that should be made by a party to
the proceedings who is a step-parent of the child, the court must take into
account:
(a) the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and
(b) the extent to which the primary duty of the parents to maintain the
child is being, and can be fulfilled.
"Subdivision E - Other aspects of courts' powers General powers of court
"66P.(1) In proceedings for a child maintenance order, a court may do all or
any of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic amount;
(c) order that a specified transfer or settlement of property be made by
way of maintenance for a child;
(d) order that payment of an amount ordered to be paid be wholly or partly
secured as the court specifies;
(e) order that any necessary instrument be executed, and that such
documents of title be produced and such other things be done, as are
necessary to enable an order to be carried out effectively or to
provide security for the due performance of an order;
(f) order that payment be made to a specified person or public authority
or into court;
(g) make a permanent order, an order pending the disposal of proceedings,
an order for a fixed period, an order until a child attains a
specified age or an order until further order;
(h) make an order imposing terms and conditions;
(i) make an order by consent;
(j) make any other order (whether or not of the same nature as those
referred to in paragraphs (a) to (i)) that it considers appropriate;
(k) make an order under this Division at any time.
"(2) The making of an order of a kind referred to in paragraph (1)(c), or of
any other order under this Division, in relation to the maintenance of a child
does not prevent a court from making a subsequent order in relation to the
maintenance of the child.
"(3) The Rules of Court may make provision with respect to the making of
orders under this Division (whether as to their form or otherwise) for the
purpose of facilitating their enforcement and the collection of maintenance
payable under them. Urgent child maintenance orders
"66Q. If, in proceedings for a child maintenance order in relation to a child:
(a) the court considers that the child is in immediate need of financial
assistance; but
(b) it is not practicable in the circumstances to determine immediately
what order (if any) should be made; the court may order the payment,
pending the disposal of the proceedings, of such periodic or other
amount as the court considers appropriate. Specification in orders of
payments etc. for child maintenance purposes
"66R.(1) If:
(a) a court makes an order under this Act (whether or not the order is
made in proceedings in relation to the maintenance of a child, is made
by consent or varies an earlier order) that has the effect of
requiring:
(i) payment of a lump sum, whether in one amount or by instalments;
or
(ii) the transfer or settlement of property; and
(b) the purpose, or one of the purposes, of the payment, transfer or
settlement is to make provision for the maintenance of a child or
children; the court must:
(c) express the order to be an order to which this section applies; and
(d) specify:
(i) the child or children for whose maintenance provision is made
by the payment, transfer or settlement; and
(ii) the portion of the payment, or the value of the portion of the
property, attributable to the provision of maintenance for the
child or each child, as the case may be.
"(2) If:
(a) a court makes an order of a kind referred to in paragraph (1)(a); and
(b) the order:
(i) is not expressed to be an order to which this section applies;
or
(ii) is expressed to be an order to which this section applies, but
does not comply with paragraph (1)(d); any payment, transfer or
settlement of a kind referred to in paragraph (1)(a), that the
order has the effect of requiring, is to be taken not to make
provision for the maintenance of a child. Modification of child
maintenance orders
"66S.(1) This section applies if:
(a) there is in force an order (the 'first order'), for the maintenance of
a child (whether or not made under this Act and whether made before or
after the commencement of this section):
(i) made by a court; or
(ii) registered in a court under the Rules of Court; and
(b) a person (being someone who could apply for a child maintenance order
in relation to the child) applies to the court for an order under this
section in relation to the first order.
"(2) The court may, by order:
(a) discharge the first order if there is just cause for so doing; or
(b) suspend its operation wholly or in part and either until further order
or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b),
revive its operation wholly or in part; or
(d) subject to subsection (3), vary the order:
(i) so as to increase or decrease any amount ordered to be paid by
the order; or
(ii) in any other way.
"(3) The court must not vary the order so as to increase or decrease any
amount ordered to be paid by the order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of the child have changed so as to justify
the variation; or
(ii) the circumstances of the person liable to make payments under
the order have changed so as to justify the variation; or
(iii) the circumstances of the person entitled to receive payments
under the order have changed so as to justify the variation; or
(iv) in the case of an order that operates in favour of, or is
binding on, a legal personal representative - the circumstances
of the estate are such as to justify the variation; or
(b) that, since the order was made or last varied, the cost of living has
changed to such an extent as to justify its so doing (this is expanded
on in subsections (4) and (5)); or
(c) if the order was made by consent - that the amount ordered to be paid
is not proper or adequate (this is expanded on in subsection (6)); or
(d) that material facts were withheld from the court that made the order
or from a court that varied the order, or material evidence previously
given before such a court was false.
"(4) In satisfying itself for the purposes of paragraph (3)(b), the court must
have regard to any changes that have occurred in the Consumer Price Index
published by the Australian Statistician.
"(5) The court must not, in considering the variation of an order, have regard
to a change in the cost of living unless at least 12 months have elapsed since
the order was made or last varied having regard to a change in the cost of
living.
"(6) In satisfying itself for the purposes of paragraph (3)(c), the court must
have regard to any payments, and any transfer or settlement of property,
previously made to the child, or to any other person for the benefit of the
child, by the person against whom the order was made.
"(7) An order decreasing a periodic amount payable under the order, or
discharging the order, may be expressed to be retrospective to such day as the
court considers appropriate.
"(8) If an order (the 'subsequent order') decreasing a periodic amount payable
under the first order is expressed to be retrospective, amounts paid under the
first order that are not payable under the first order as varied by the
subsequent order may be recovered in a court having jurisdiction under this
Part.
"(9) If an order discharging the first order is expressed to be retrospective
to a specified day, amounts paid under the first order since the specified day
may be recovered in a court having jurisdiction under this Part.
"(10) For the purposes of this section, the court must have regard to the
provisions of Subdivisions B, C and D (to the extent applicable).
"(11) The discharge of the first order does not affect the recovery of arrears
due under the order when the discharge takes effect.
"Subdivision F - When child maintenance orders stop being in force Effect of
child turning 18
"66T. As stated in subsection 66L(3), a child maintenance order in relation to
a child stops being in force when the child turns 18, unless the order is
expressed to continue in force after then. Effect of death of child, person
liable to pay or person entitled to receive
"66U.(1) A child maintenance order in relation to a child stops being in force
on the death of the child.
"(2) A child maintenance order in relation to a child stops being in force on
the death of the person liable to make payments under the order.
"(3) Subsection (2) does not apply to an order made before the commencement of
section 38 of the Family Law Amendment Act 1983 if the order was expressed to
continue in force throughout the life of the person for whose benefit the
order was made or for a period that had not expired at the death of the person
liable to make payments under the order and, in that case, the order is
binding on the legal personal representative of the deceased person.
"(4) A child maintenance order in relation to a child stops being in force on
the death of the person entitled to receive payments under the order.
"(5) Subsection (4) does not apply to an order if:
(a) the order is expressed to continue in force after the death of the
person first entitled to receive payments under the order; and
(b) the order specifies the person who is to receive the payments after
that death. Effect of adoption, marriage or entering into a de facto
relationship
"66V.(1) A child maintenance order in relation to a child stops being in force
if the child is adopted, marries or enters into a de facto relationship.
"(2) If a child to whom a child maintenance order applies dies, is adopted,
marries or enters into a de facto relationship, the person entitled to receive
payments under the order must, without delay, inform the person liable to make
payments under the order.
"(3) Any amounts paid under a child maintenance order in relation to a period
after the child dies, is adopted, marries or enters into a de facto
relationship may be recovered in a court having jurisdiction under this Part.
"(4) A court having jurisdiction under this Part may make a declaration to the
effect that a child is in, or has entered into, a de facto relationship.
"(5) A declaration under subsection (4) has effect for the purposes of this
Act but does not have effect for any other purpose (including, for example,
other laws of the Commonwealth or laws of the States and Territories).
Subdivision does not affect recovery of arrears
"66W. Nothing in this Subdivision affects the recovery of arrears due under an
order when the order ceased to be in force.
"Division 8 - Other matters relating to children
" Subdivision A - What this Division does What this Division does
"67A. This Division deals with:
(a) the liability of a father to contribute towards child bearing expenses
if he is not married to the child's mother (Subdivision B); and
(b) orders for the location and recovery of children (Subdivision C); and
(c) the reporting of allegations of child abuse (Subdivision D); and
(d) other orders about children (Subdivision E).
"Subdivision B - Father's liability to contribute towards
child bearing expenses if not married to mother Father liable to contribute
towards maintenance and expenses of mother
"67B. The father of a child who is not married to the child's mother is,
subject to this Division, liable to make a proper contribution towards:
(a) the maintenance of the mother for the childbirth maintenance period in
relation to the birth of the child; and
(b) the mother's reasonable medical expenses in relation to the pregnancy
and birth; and
(c) if the mother dies and the death is as a result of the pregnancy or
birth, the reasonable expenses of the mother's funeral; and
(d) if the child is stillborn, or dies and the death is related to the
birth, the reasonable expenses of the child's funeral. Matters to be
taken into account in proceedings under Subdivision
"67C.(1) In proceedings under this Subdivision in relation to the birth of a
child, the court must, in determining the contribution that should be made by
the father of the child, take into account the following matters only:
(a) the income, earning capacity, property and financial resources of the
mother and the father of the child;
(b) commitments of each of those persons that are necessary to enable the
person to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to
maintain;
(c) any special circumstances which, if not taken into account in the
particular case, would result in injustice or undue hardship to any
person.
"(2) In taking into account the income, earning capacity, property and
financial resources of a person, the court must have regard to the capacity of
the person to earn and derive income, including any assets of, under the
control of or held for the benefit of the person that do not produce, but are
capable of producing, income.
"(3) In taking into account the income, earning capacity, property and
financial resources of the mother, the court must disregard any entitlement of
the mother to an income tested pension, allowance or benefit.
"(4) Subsections (2) and (3) do not limit the matters to which the court may
have regard in taking into account matters referred to in subsection (1).
Powers of court in proceedings under Subdivision
"67D.(1) In proceedings under this Subdivision in relation to the birth of a
child, the court may make such order as it thinks proper.
"(2) In exercising its powers under this Subdivision, a court may do all or
any of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly or other periodic amount;
(c) order that payment of an amount ordered to be paid be wholly or partly
secured as the court specifies;
(d) order that any necessary instrument be executed, and that such
documents of title be produced and such other things be done, as are
necessary to enable an order to be carried out effectively or to
provide security for the due performance of an order;
(e) order that payment be made to a specified person or public authority
or into court;
(f) make a permanent order, an order pending the disposal of proceedings,
an order for a fixed period or an order until further order;
(g) make an order imposing terms and conditions;
(h) make an order by consent;
(i) make any other order (whether or not of the same nature as those
referred to in paragraphs (a) to (h)) that it considers appropriate;
(j) make an order under this Subdivision at any time (whether before or
after the birth of the relevant child).
"(3) The Rules of Court may make provision with respect to the making of
orders under this Subdivision (whether as to their form or otherwise) for the
purpose of facilitating their enforcement and the collection of amounts
payable under them. Urgent orders
"67E. If, in proceedings under this Subdivision in relation to the birth of a
child:
(a) the court is of the opinion that the applicant is in immediate need of
financial assistance; but
(b) it is not practicable in the circumstances to determine immediately
what order (if any) should be made (whether because the applicant has
not yet given birth to the child or otherwise); the court may order
the payment, pending the disposal of the proceedings, of such periodic
or other amount as the court considers appropriate. Who may institute
proceedings
"67F. Proceedings under this Subdivision in relation to the birth of a child
may be instituted by the mother or by the mother's legal personal
representative. Time limit for institution of proceedings
"67G.(1) Proceedings under this Subdivision in relation to the birth of a
child may be instituted:
(a) at any time during the pregnancy of the mother; or
(b) after the birth of the child, but not later than 12 months after the
birth except by leave of the court.
"(2) The court must not grant leave under paragraph (1)(b) unless it is
satisfied that refusal to grant leave would cause hardship to the applicant,
the child or another person.
"Subdivision C - Location and recovery of children Interpretation
"67H. In this Subdivision:
'appropriate authority', in relation to a Commonwealth instrumentality, means
a person:
(a) who in, or in relation to, the instrumentality:
(i) holds a Senior Executive Service office in the Australian
Public Service; or
(ii) holds an office or position that is at a level equivalent to a
Senior Executive Service office in the Australian Public
Service; or
(b) who is authorised in writing by the principal officer of the
instrumentality to provide information under
Commonwealth information orders;
'Commonwealth information order' has the meaning given by subsection 67J(2);
'Department' means a Department of State of the Commonwealth;
'information about the child's location', in the context of a location order
made or to be made by a court in relation to a child, means information about:
(a) where the child is; or
(b) where a person who the court has reasonable cause to believe has the
child is;
'location order' has the meaning given by subsection 67J(1);
'principal officer', in relation to a Commonwealth instrumentality, means:
(a) if the regulations declare an office to be the principal office in
respect of the instrumentality - the person holding, or performing the
duties of, that office; or
(b) the person who constitutes the instrumentality or who is entitled to
preside at any meeting of the instrumentality, or of its governing
body, at which the person is present;
'recovery order' has the meaning given by section 67Q;
'Registrar' means:
(a) in relation to the Family Court, or the Family Court of Western
Australia - the Registrar, or a Deputy Registrar, of that court; and
(b) in relation to any other court - the principal officer of that court.
Meaning of "location order" and "Commonwealth information order"
"67J.(1) A location order is an order made by a court requiring:
(a) a person to provide the Registrar of the court with information that
the person has or obtains about the child's location; or
(b) the Secretary of a Department, or an appropriate authority of a
Commonwealth instrumentality, to provide the Registrar of the court
with information about the child's location that is contained in or
comes into the records of the Department or instrumentality.
"(2) A Commonwealth information order is a location order described in
paragraph (1)(b). Who may apply for a location order
"67K. A location order in relation to a child may be applied for by:
(a) a person who has a residence order in relation to the child; or
(b) a person who has a contact order in relation to the child; or
(c) a person who has a specific issues order in relation to the child
under which the person is responsible for the child's long-term or
day-to-day care, welfare and development; or
(d) any other person concerned with the care, welfare or development of
the child. Child's best interests paramount consideration in making a
location order
"67L. In deciding whether to make a location order in relation to a child, a
court must regard the best interests of the child as the paramount
consideration. Note: Division 10 deals with how a court determines a child's
best interests. Provisions about location orders, other than
Commonwealth information orders
"67M.(1) This section applies to location orders other than Commonwealth
information orders.
"(2) Subject to section 67L, a court having jurisdiction under this Part may
make a location order if it is satisfied that the person to whom the order
applies is likely to have information about the child's location.
"(3) If the person to whom a location order applies holds an office or
position in, or in relation to, a Department or a Commonwealth
instrumentality, the order does not apply to information that the person has
or obtains because of holding that office or position.
"(4) A location order stays in force for 12 months or such longer period as
the court considers appropriate.
"(5) While a location order is in force, the person to whom it applies must
provide the information sought by the order as soon as practicable, or as soon
as practicable after the person obtains it.
"(6) The person to whom a location order applies must comply with the order in
spite of anything in any other law. Provisions about
Commonwealth information orders
"67N.(1) This section applies to Commonwealth information orders.
"(2) Subject to section 67L, a court having jurisdiction under this Part may
make a Commonwealth information order if it is satisfied that information
about the child's location is likely to be contained in, or to come into, the
records of the Department or Commonwealth instrumentality concerned.
"(3) A court must not make a Commonwealth information order unless:
(a) a copy of the application for the order has been served in accordance
with the Rules of Court on the person to whom the order will apply
(being the Secretary of the Department concerned or an appropriate
authority of the Commonwealth instrumentality concerned); and
(b) if that Department or Commonwealth instrumentality is prescribed for
the purposes of this paragraph - either:
(i) the period of 7 days after service of that copy of the
application has expired; or
(ii) the court considers that there are special circumstances
because of which the order should be made before the end of
that period of 7 days.
"(4) If an application for a Commonwealth information order relates to more
than one Department or Commonwealth instrumentality, the court must not make
the order in relation to more than one of them unless the court considers it
should do so because of exceptional circumstances.
"(5) A court may state that a Commonwealth information order only applies to
records of a particular kind if the court considers that:
(a) the information sought by the order is only likely to be contained in
records of that kind; and
(b) to apply the order to all records of the Department or Commonwealth
instrumentality concerned would place an unreasonable burden on its
resources.
"(6) A Commonwealth information order stays in force for 12 months.
"(7) While a Commonwealth information order is in force, the person to whom
the order applies must, subject to subsection (9), provide the information
sought by the order as soon as practicable, or as soon as practicable after it
comes into the records of the Department or Commonwealth instrumentality
concerned.
"(8) If the person (the 'official') to whom a Commonwealth information order
applies provides another person (in accordance with the order) with
information sought by the order, the official must, at the same time, provide
the other person with any information about actual or threatened violence to
the child concerned, to a parent of the child, or to another person with whom
the child lives, that is in the records of the Department or Commonwealth
instrumentality concerned.
"(9) A Commonwealth information order does not require the records of the
Department or Commonwealth instrumentality concerned to be searched for the
information sought by the order more often than once every 3 months unless
specifically so ordered by the court.
"(10) The person to whom a Commonwealth information order applies must comply
with the order in spite of anything in any other law.
Information provided under location order not to be disclosed except to
limited persons
"67P.(1) Information provided to the Registrar of a court under a location
order (including a Commonwealth information order) must not, intentionally or
recklessly, be disclosed by the Registrar, or by any other person who obtains
the information (whether directly or indirectly and whether under this section
or otherwise) because of the provision of the information to the Registrar,
except to:
(a) the Registrar of another court; or
(b) an officer of the court, or of another court, for the purpose of that
officer's responsibilities or duties; or
(c) a process-server engaged by, or by an officer of, the court or another
court; or
(d) with the leave of the court that made the location order:
(i) the legal adviser of the applicant for the order; or
(ii) a process-server engaged by that legal adviser; or
(e) if a recovery order that consists of or includes an authorisation or
direction described in paragraph 67Q(b) or (c) is in force - a person
to whom the authorisation or direction is addressed. Penalty: 120
penalty units. Note: For the value of a penalty unit, see subsection
4AA(1) of the Crimes Act 1914.
"(2) Nothing in paragraphs (1)(a) to (e) authorises the disclosure of
information to the applicant for the location order.
Meaning of "recovery order"
"67Q. A recovery order is an order made by a court doing all or any of the
following:
(a) requiring the return of a child to:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in
relation to the child; or
(iii) a person who has a specific issues order in relation to the
child under which the person is responsible for the child's
long-term or day-to-day care, welfare and development;
(b) authorising or directing a person or persons, with such assistance as
he or she requires or they require, and if necessary by force, to stop
and search any vehicle, vessel or aircraft, and to enter and search
any premises or place, for the purpose of finding a child;
(c) authorising or directing a person or persons, with such assistance as
he or she requires or they require, and if necessary by force, to
recover a child;
(d) authorising or directing a person to whom a child is returned, or who
recovers a child, to deliver the child to:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in
relation to the child; or
(iii) a person who has a specific issues order in relation to the
child under which the person is responsible for the child's
long-term or day-to-day care, welfare and development; or
(iv) some other person on behalf of a person described in
subparagraph (i), (ii) or (iii);
(e) giving directions about the day-to-day care of a child until the child
is returned or delivered to another person;
(f) prohibiting a person from again removing or taking possession of a
child;
(g) authorising the arrest, without warrant, of a person who again removes
or takes possession of a child. Note: Subdivision D of Division 6
deals with what is to happen to a person arrested without warrant
under a recovery order. How recovery orders authorise or direct people
"67R.(1) An authorisation or direction described in paragraph 67Q(b), (c) or
(d) may be addressed to:
(a) a named person; or
(b) every person from time to time holding or acting in a specified office
of the Commonwealth or of a State or Territory.
"(2) Without limiting the generality of subsection (1), an authorisation or
direction described in paragraph 67Q(b), (c) or (d) may be addressed to:
(a) a named person who holds an appointment as a child recovery officer
under subsection (3); or
(b) every person from time to time holding or acting in an office of child
recovery officer.
"(3) The Attorney-General may appoint persons to be child recovery officers
for the purposes of this Subdivision.
"(4) An appointment under subsection (3) may be of:
(a) a named person only; or
(b) every person from time to time holding or acting in a specified office
of the Commonwealth or of a State or Territory. How recovery orders to
stop and search etc. name or describe vehicles, places etc.
"67S. An authorisation or direction described in paragraph 67Q(b) may be
expressed to apply to:
(a) a vehicle, vessel, aircraft, premises or place named or described
either specifically or in general terms; or
(b) any vehicle, vessel, aircraft, premises or place in which there is, at
any time, reasonable cause to believe that the child concerned may be
found. Who may apply for a recovery order
"67T. A recovery order in relation to a child may be applied for by:
(a) a person who has a residence order in relation to the child; or
(b) a person who has a contact order in relation to the child; or
(c) a person who has a specific issues order in relation to the child
under which the person is responsible for the child's long-term or
day-to-day care, welfare and development; or
(d) any other person concerned with the care, welfare or development of
the child. Court's power to make recovery order
"67U. In proceedings for a recovery order, the court may, subject to section
67V, make such recovery order as it thinks proper. Child's best interests
paramount consideration in making a recovery order
"67V. In deciding whether to make a recovery order in relation to a child, a
court must regard the best interests of the child as the paramount
consideration. Note: Division 10 deals with how a court determines a child's
best interests. How long recovery order remains in force
"67W.(1) The Rules of Court may deal with how long recovery orders remain in
force.
"(2) Subject to the Rules of Court, a recovery order remains in force for the
period specified in the order.
Persons not to prevent or hinder taking of action under recovery order
"67X.(1) This section applies to a recovery order that authorises or directs a
person or persons to take action as described in paragraph 67Q(b), (c) or (d).
"(2) A person must not prevent or hinder the taking of the action by the
person or persons authorised or directed to take the action.
"(3) If a court having jurisdiction under this Part is satisfied that a person
has intentionally, and without reasonable excuse, contravened subsection (2),
the court may:
(a) order the person to pay a fine not exceeding $1,000; or
(b) order the person to enter into a recognizance (with or without surety
or security) on conditions specified by the court; or
(c) order the person to be imprisoned until he or she enters into a
recognizance (with or without surety or security) on conditions
specified by the court, or until the person has been imprisoned for 3
months, whichever happens first.
"(4) A court that makes an order under subsection (3) may make such other
orders as it considers necessary to ensure the person does not again
contravene subsection (2). Obligation to notify persons of child's return
"67Y.(1) This section applies if:
(a) a recovery order that consists of or includes provisions described in
paragraph 67Q(a), (b), (c) or (d) is in force in relation to a child;
and
(b) the child returns, or is returned, to the person who applied for the
order.
"(2) The person must, as soon as practicable after the child's return, give
notice of the child's return to:
(a) the Registrar of the court that issued the recovery order; and
(b) if a location order in relation to the child is in force and was
applied for by the person - the person to whom the location order
applies.
"Subdivision D - Allegations of child abuse Where party to proceedings makes
allegation of child abuse
"67Z.(1) This section applies if a party to proceedings under this Act alleges
that a child to whom the proceedings relate has been abused or is at risk of
being abused.
"(2) The party must file a notice in the prescribed form in the court hearing
the proceedings, 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.
"(3) If a notice under subsection (2) is filed in a court, the Registrar must,
as soon as practicable, notify a prescribed child welfare authority.
"(4) In this section:
'prescribed form' means the form prescribed by the Rules of Court;
'Registrar' means:
(a) in relation to the Family Court, or the Family Court of Western
Australia - the Registrar, or a Deputy Registrar, of that Court; and
(b) in relation to any other court - the principal officer of that court.
Where member of the Court personnel, counsellor or mediator suspects
child abuse etc.
"67ZA.(1) This section applies to a person in the course of carrying out
duties, performing functions or exercising powers as:
(a) a member of the Court personnel; or
(b) a family and child counsellor; or
(c) a family and child mediator.
"(2) If the person has reasonable grounds for suspecting that a child has been
abused, or is at risk of being abused, the person must, as soon as
practicable, notify a prescribed child welfare authority of his or her
suspicion and the basis for the suspicion.
"(3) If the person has reasonable grounds for suspecting that a child:
(a) has been ill treated, or is at risk of being ill treated; or
(b) has been exposed or subjected, or is at risk of being exposed or
subjected, to behaviour which psychologically harms the child; the
person may notify a prescribed child welfare authority of his or her
suspicion and the basis for the suspicion.
"(4) The person need not notify a prescribed child welfare authority of his or
her suspicion that a child has been abused, or is at risk of being abused, if
the person knows that the authority has previously been notified about the
abuse or risk under subsection (2) or subsection 67Z(3), but the person may
notify the authority of his or her suspicion.
"(5) If notice under this section is given orally, written notice confirming
the oral notice is to be given to the prescribed child welfare authority as
soon as practicable after the oral notice.
"(6) If the person notifies a prescribed child welfare authority under this
section or subsection 67Z(3), the person may make such disclosures of other
information as the person reasonably believes are necessary to enable the
authority to properly manage the matter the subject of the notification. No
liability for notification under section 67Z or 67ZA
"67ZB.(1) A person:
(a) must give notice under subsection 67Z(3) or 67ZA(2); or
(b) may give notice under subsection 67ZA(3) or (4); or
(c) may disclose other information under subsection 67ZA(6); in spite of
any obligation of confidentiality imposed on the person by this Act,
another Act, another law or anything else (including a contract or
professional ethics).
"(2) A person is not liable in civil or criminal proceedings, and is not to be
considered to have breached any professional ethics, in respect of a
notification under subsection 67Z(3) or 67ZA(2).
"(3) A person is not liable in civil or criminal proceedings, and is not to be
considered to have breached any professional ethics, in respect of a
notification under subsection 67ZA(3) or (4), or a disclosure under subsection
67ZA(6), if the notification or disclosure is made in good faith.
"(4) Evidence of a notification under subsection 67Z(3) or subsection 67ZA(2),
(3) or (4), or a disclosure under subsection 67ZA(6), is not admissible in any
court except where that evidence is given by the person who made the
notification or disclosure.
"(5) In this section:
'court' means a court (whether or not exercising jurisdiction under this Act)
and includes a tribunal or other body concerned with professional ethics.
"Subdivision E - Other orders about children Orders relating to welfare of
children
"67ZC.(1) In addition to the jurisdiction that a court has under this Part in
relation to children, the court also has jurisdiction to make orders relating
to the welfare of children.
"(2) In deciding whether to make an order under subsection (1) in relation to
a child, a court must regard the best interests of the child as the paramount
consideration. Note: Division 10 deals with how a court determines a child's
best interests. Orders for delivery of passports
"67ZD. If a court having jurisdiction under this Part considers that there is
a possibility or threat that a child may be removed from Australia, it may
order the passport of the child and of any other person concerned to be
delivered up to the court upon such conditions as the court considers
appropriate.
"Division 9 - Injunctions
What this Division does
"68A. This Division deals with proceedings for injunctions in relation to
children. Injunctions
"68B.(1) If proceedings are instituted in a court having jurisdiction under
this Part for an injunction in relation to a child, the court may make such
order or grant such injunction as it considers appropriate for the welfare of
the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in
relation to the child; or
(iii) a person who has a specific issues order in relation to the
child under which the person is responsible for the child's
long-term or day-to-day care, welfare and development; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in
subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person
referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in
subparagraph (i).
"(2) A court exercising jurisdiction under this Act (other than in proceedings
to which subsection (1) applies) may grant an injunction in relation to a
child, by interlocutory order or otherwise, in any case in which it appears to
the court to be just or convenient to do so.
"(3) An injunction under this section may be granted unconditionally or on
such terms and conditions as the court considers appropriate. Powers of arrest
"68C.(1) If:
(a) an injunction is in force under section 68B for the personal
protection of a person (the 'protected person'); and
(b) a police officer believes, on reasonable grounds, that the person (the
'respondent') against whom the injunction is directed has breached the
injunction by causing, or threatening to cause, bodily harm to the
protected person or by harassing or molesting that person; the police
officer may arrest the respondent without warrant.
"(2) For the purposes of subsection (1), an injunction granted under section
68B is an injunction for the personal protection of a person if, and only if,
it is expressed to be for the personal protection of the person.
"(3) Subsections 114AA(3), (4), (5) and (7) apply in relation to a person
arrested under this section as if:
(a) the person had been arrested under subsection 114AA(1) because he or
she was believed to have breached an injunction granted under section
114; and
(b) the person on whose application the injunction was granted under
section 68B were the person on whose application the injunction under
section 114 had been granted.
"Division 10 - The best interests of children and the
representation of children
"Subdivision A - What this Division does
What this Division does
"68D. This Division deals with:
(a) determining what is in a child's best interests (including in
situations of family violence) (Subdivision B); and
(b) the separate representation of children (Subdivision C).
"Subdivision B - Determining the best interests of a child Proceedings to
which Subdivision applies
"68E.(1) This Subdivision applies to any proceedings under this Part in which
the best interests of a child are the paramount consideration.
"(2) This Subdivision also applies to proceedings, in relation to a child, to
which subsection 60G(2), 63F(2) or 63F(6) or section 68T applies. How a court
determines what is in a child's best interests
"68F.(1) Subject to subsection (3), in determining what is in the child's best
interests, the court must consider the matters set out in subsection (2).
"(2) The court must consider:
(a) any wishes expressed by the child and any factors (such as the child's
maturity or level of understanding) that the court thinks are relevant
to the weight it should give to the child's wishes;
(b) the nature of the relationship of the child with each of the child's
parents and with other persons;
(c) the likely effect of any changes in the child's circumstances,
including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person, with whom he or she has been
living;
(d) the practical difficulty and expense of a child having contact with a
parent and whether that difficulty or expense will substantially
affect the child's right to maintain personal relations and direct
contact with both parents on a regular basis;
(e) the capacity of each parent, or of any other person, to provide for
the needs of the child, including emotional and intellectual needs;
(f) the child's maturity, sex and background (including any need to
maintain a connection with the lifestyle, culture and traditions of
Aboriginal peoples or Torres Strait Islanders) and any other
characteristics of the child that the court thinks are relevant;
(g) the need to protect the child from physical or psychological harm
caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or
other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment,
violence or other behaviour that is directed towards, or may
affect, another person;
(h) the attitude to the child, and to the responsibilities of parenthood,
demonstrated by each of the child's parents;
(i) any family violence involving the child or a member of the child's
family;
(j) any family violence order that applies to the child or a member of the
child's family;
(k) whether it would be preferable to make the order that would be least
likely to lead to the institution of further proceedings in relation
to the child;
(l) any other fact or circumstance that the court thinks is relevant.
"(3) If the court is considering whether to make an order with the consent of
all the parties to the proceedings, the court may, but is not required to,
have regard to all or any of the matters set out in subsection (2).
"(4) In paragraph (2)(f):
'Aboriginal peoples' means the peoples of the Aboriginal race of Australia;
'Torres Strait Islanders' means the descendants of the indigenous inhabitants
of the Torres Strait Islands. How the wishes of a child are expressed
"68G.(1) Paragraph 68F(2)(a) requires the court to consider any wishes
expressed by a child in deciding whether to make a particular parenting order
in relation to the child. This section deals with how the court informs itself
of wishes expressed by a child.
"(2) The court may inform itself of wishes expressed by a child:
(a) by having regard to anything contained in a report given to the court
under subsection 62G(2); or
(b) subject to the Rules of Court, by such other means as the court thinks
appropriate. Children not required to express wishes
"68H. Nothing in this Part permits the court or any person to require the
child to express his or her wishes in relation to any matter. Informing court
of relevant family violence orders
"68J.(1) If a party to the proceedings is aware that a family violence order
applies to the child, or a member of the child's family, that party must
inform the court of the family violence order.
"(2) If a person who is not a party to the proceedings is aware that a family
violence order applies to the child, or a member of the child's family, that
person may, subject to the Rules of Court, inform the court of the family
violence order.
"(3) Failure to inform the court of the family violence order does not affect
the validity of any order made by the court. Court to consider risk of family
violence "68K.(1) In considering what order to make, the court must, to the
extent that it is possible to do so consistently with the child's best
interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
"(2) For the purposes of paragraph (1)(b) the court may include in the order
any safeguards that it considers necessary for the safety of those affected by
the order.
"Subdivision C - Separate representation of children Court orders for separate
representation
"68L.(1) This section applies to proceedings under this Act in which a child's
best interests are, or a child's welfare is, the paramount, or a relevant,
consideration.
"(2) If it appears to the court that the child ought to be separately
represented, the court may order that the child is to be separately
represented, and may also make such other orders as it considers necessary to
secure that separate representation.
"(3) A court may make an order for separate representation:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation concerned with the welfare of children; or
(iii) any other person. Order that child be made available for
examination
"68M.(1) This section applies if, in proceedings under this Act, a child is
separately represented by a person (the 'child's representative') under an
order under section 68L.
"(2) The court may, on application by the child's representative, order a
person mentioned in subsection (3) to make the child available, as specified
in the order, for a psychiatric or psychological examination to be made for
the purpose of preparing a report about the child for use by the child's
representative in connection with the proceedings.
"(3) The order may be directed to:
(a) a parent of the child; or
(b) a person who has a residence order or a contact order in relation to
the child; or
(c) a person who has a specific issues order in relation to the child
under which the person is responsible for the child's long-term or
day-to-day care, welfare and development.
"Division 11 - Family violence
What this Division does
"68N. This Division deals with the relationship between Division 11 contact
orders (as defined in section 68P) and family violence orders. Note: Other
provisions dealing with family violence and family violence orders are:
(a) section 60D (which contains the relevant definitions); and
(b) paragraphs 65F(2)(b) and 68F(2)(i) and (j); and
(c) sections 68J and 68K. Interpretation
"68P. In this Division:
'Division 11 contact order' means:
(a) a contact order; or
(b) any of the following, to the extent that it requires or authorises
(expressly or impliedly) contact between a child and another person or
other persons:
(i) a recovery order, a specific issues order or any other order
(however described) made under this Act;
(ii) an injunction granted under section 68B or 114;
(iii) an undertaking given to, and accepted by, a court exercising
jurisdiction under this Act;
(iv) a parenting plan registered in a court under section 63E;
(v) a recognizance entered into pursuant to an order under this
Act;
'section 68R contact order' means:
(a) a contact order; or
(b) any of the following, to the extent that it requires or authorises
(expressly or impliedly) contact between a child and another person or
other persons:
(i) a recovery order, a specific issues order or any other order
(however described) made under this Act;
(ii) an injunction granted under section 68B or 114. Purposes of
Division
"68Q. The purposes of this Division are:
(a) to resolve inconsistencies between Division 11 contact orders and
family violence orders; and
(b) to ensure that Division 11 contact orders do not expose people to
family violence; and
(c) to respect the right of a child to have contact, on a regular basis,
with both the child's parents where:
(i) contact is diminished by the making or variation of a family
violence order; and
(ii) it is in the best interests of the child to have contact with
both parents on a regular basis. Provisions about making an
order for contact that is inconsistent with a family violence
order
"68R.(1) This section applies if a court makes a section 68R contact order
that is inconsistent with a family violence order.
"(2) The court must explain, or arrange for someone else to explain, the order
in accordance with subsection (3) to:
(a) the applicant and the respondent in the proceedings for the section
68R
contact order; and (b) if the person against whom the family violence order
is directed is not covered by paragraph (a) - that person; and
(c) if the person protected by the family violence order is not covered by
paragraph (a) - that person.
"(3) An explanation under subsection (2) must explain, in language likely to
be readily understood by the person to whom the explanation is given:
(a) the purpose of the section 68R contact order; and
(b) the obligations that the order creates; and
(c) the consequences that may follow if a person fails to comply with the
order; and
(d) the court's reasons for making an order that is inconsistent with a
family violence order; and
(e) the circumstances in which a person may apply for the order to be
revoked or varied.
"(4) In addition to the requirements mentioned in subsection (3), the court
must:
(a) include in the section 68R contact order a detailed explanation of how
the contact provided for in the order is to take place; and
(b) as soon as practicable, but not later than 14 days after making the
section 68R contact order, give a copy of that order to:
(i) the applicant and the respondent in the proceedings for the
section 68R contact order; and
(ii) if the person against whom the family violence order is
directed is not covered by subparagraph (i) - that person; and
(iii) if the person protected by the family violence order is not
covered by subparagraph (i) - that person; and
(iv) the Registrar of the court that made or last varied the family
violence order; and
(v) the Commissioner or head (however described) of the police
force of the State or Territory in which the person protected
by the family violence order resides.
"(5) Failure to comply with a requirement of this section does not affect the
validity of a section 68R contact order. Section 68R contact orders prevail
over inconsistent family violence orders
"68S.(1) If a section 68R contact order is inconsistent with a family violence
order, the section 68R contact order prevails and the family violence order is
invalid to the extent of the inconsistency.
"(2) Any of the following persons may apply to a court having jurisdiction
under this Part for a declaration of the extent to which a section 68R contact
order is inconsistent with a family violence order:
(a) the applicant and the respondent in the proceedings for the section
68R contact order;
(b) if the person against whom the family violence order is directed is
not covered by paragraph (a) - that person;
(c) if the person protected by the family violence order is not covered by
paragraph (a) - that person.
"(3) The court to which an application for a declaration is made must hear and
determine the application and make such declaration as it considers
appropriate. Variation etc. of Division 11 contact order by court making etc.
family violence order
"68T.(1) If proceedings (the 'family violence proceedings') for the making or
variation of a family violence order are before a court of a State or
Territory that has jurisdiction in relation to matters arising under this
Part, the court may, subject to this section, exercise that jurisdiction, in
the course of the family violence proceedings, to make, revive, vary,
discharge or suspend a Division 11 contact order.
"(2) The court's power to make, revive, vary, suspend or discharge a Division
11 contact order in the family violence proceedings is subject to the
following provisions:
(a) the court must not exercise that power unless, whether by interim
order or otherwise, it makes or varies a family violence order in
those proceedings;
(b) the court must exercise that power having regard to the purposes of
this Division (as stated in section 68Q) and to the best interests of
any relevant child;
(c) if section 68R applied to the making of a Division 11 contact order -
the court must not exercise the power to vary, discharge or suspend
the order unless it is satisfied that it is appropriate to do so:
(i) because a person has been exposed, or is likely to be exposed,
to family violence as a result of the operation of the order;
and
(ii) having regard to the matters mentioned in paragraph (b);
(d) if the court makes an interim family violence order, or an interim
order varying a family violence order, the court must not discharge a
Division 11 contact order in those proceedings. Note: Division 10
deals with how a court determines a child's best interests.
"(3) This Part, and the Rules of Court, apply to the making, revival,
variation, discharge or suspension of a Division 11 contact order in the
family violence proceedings subject to the following qualifications:
(a) the following provisions do not apply:
(i) sections 65C, 68K and 69N and subsection 65F(2);
(ii) any provisions (for example, section 65E) that would otherwise
make the best interests of a child the paramount consideration;
(iii) any other prescribed provisions;
(b) if the court makes an interim family violence order, or an interim
order varying a family violence order, then, in addition to the effect
of paragraph (a):
(i) the court has a discretion whether to apply paragraph
68F(2)(a); and
(ii) any other prescribed provisions do not apply;
(c) the court may dispense with such Rules of Court as it thinks
appropriate. Note: Because of subparagraph (3)(a)(ii), the best
interests of a child are not the paramount consideration. They must,
however, still be taken into account as required by paragraphs (2)(b)
and (c).
"(4) The court may (subject to this section) make, revive, vary, discharge or
suspend a Division 11 contact order in the family violence proceedings:
(a) on its own initiative; or
(b) on application by any person.
"(5) If, in the family violence proceedings:
(a) the court makes an interim family violence order, or an interim order
varying a family violence order (the 'interim order'); and
(b) the court makes, revives, varies or suspends a Division 11 contact
order; the following provisions apply:
(c) the Division 11 contact order made, or the revival, variation or
suspension of the Division 11 contact order, as the case may be, does
not have effect at a time that is after whichever of the following
occurs first:
(i) the interim order stops being in force;
(ii) the end of the period of 21 days starting when the interim
order was made;
(d) no appeal lies in relation to the making, revival, variation or
suspension of the Division 11 contact order.
"(6) The regulations may require a copy of the court's decision to make,
revive, vary, discharge or suspend a Division 11 contact order to be
registered in accordance with the regulations. Failure to comply with such a
requirement of the regulations does not affect the validity of the court's
decision.
"Division 12 - Proceedings and jurisdiction
" Subdivision A - What this Division does What this Division does
"69A. This Division deals with:
(a) the institution of proceedings and procedure (Subdivision B); and
(b) jurisdiction of courts (Subdivision C); and
(c) presumptions of parentage (Subdivision D); and
(d) parentage evidence (Subdivision E); and
(e) the places and people to which this Part extends and applies
(Subdivision F).
"Subdivision B - Institution of proceedings and procedure Certain proceedings
to be instituted only under this Part
"69B.(1) Proceedings that may be instituted under this Part must not, after
the commencement of this section, be instituted otherwise than under this
Part.
"(2) Subsection (1) does not apply in relation to the institution of
proceedings under the Child Support (Assessment) Act 1989. Who may institute
proceedings
"69C.(1) Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express
provisions dealing with who may institute particular kinds of proceedings in
relation to children.
"(2) Any other kind of proceedings under this Act in relation to a child may,
unless a contrary intention appears, be instituted by:
(a) either or both of the child's parents; or
(b) the child; or
(c) a grandparent of the child; or
(d) any other person concerned with the care, welfare or development of
the child. Institution of maintenance proceedings by authorised
authority or person
"69D.(1) The regulations may make provision with respect to authorising:
(a) a specified authority of the Commonwealth or of a State or Territory;
or
(b) the person from time to time holding or acting in a specified office
established under a law of the Commonwealth or of a State or
Territory; to institute and conduct, on behalf of a child, in the
authority's or person's discretion, proceedings with respect to the
maintenance of the child.
"(2) Proceedings instituted on behalf of a child under regulations covered by
subsection (1) are taken, for the purposes of section 69C and the provisions
referred to in it, to have been instituted by the child. Child or parent to be
present in Australia etc.
"69E.(1) Proceedings may be instituted under this Act in relation to a child
only if:
(a) the child is present in Australia on the relevant day (as defined in
subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in
Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident
in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily
resident in Australia, or is present in Australia, on the relevant
day; or
(e) it would be in accordance with a treaty or arrangement in force
between Australia and an overseas jurisdiction, or the common law
rules of private international law, for the court to exercise
jurisdiction in the proceedings.
"(2) In this section:
'relevant day', in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court -
the day on which the application is filed; or
(b) in any other case - the day on which the application instituting the
proceedings is made. Applicant may be in contempt
"69F. A court may proceed with the hearing of proceedings in relation to a
child even though the person who instituted the proceedings has failed to
comply with an order of the court or of another court having jurisdiction
under this Act.
"Subdivision C - Jurisdiction of courts
Interpretation
"69G. In this Subdivision:
'matters arising under this Part' includes proceedings under Division 9 or
section 68S. Jurisdiction of Family Court, State Family Courts and Northern
Territory Supreme Court
"69H.(1) Jurisdiction is conferred on the Family Court in relation to matters
arising under this Part.
"(2) Each Family Court of a State is invested with federal jurisdiction in
relation to matters arising under this Part.
"(3) Subject to section 69K, jurisdiction is conferred on the Supreme Court of
the Northern Territory in relation to matters arising under this Part.
Jurisdiction of courts of summary jurisdiction
"69J.(1) Subject to subsection (5), each court of summary jurisdiction of each
State is invested with federal jurisdiction in relation to matters arising
under this Part (other than proceedings for leave under section 60G).
"(2) Subject to subsection (5) and section 69K, jurisdiction is conferred on
each court of summary jurisdiction of each Territory in relation to matters
arising under this Part (other than proceedings for leave under section 60G).
"(3) The Governor-General may, by Proclamation, fix a day as the day on and
after which proceedings in relation to matters arising under this Part may not
be instituted in, or transferred to, a court of summary jurisdiction in a
specified State or Territory.
"(4) Without limiting the generality of subsection (3), a Proclamation under
that subsection may be expressed to apply only in relation to:
(a) proceedings of specified classes; or
(b) the institution of proceedings in, or the transfer of proceedings to,
a court of summary jurisdiction in a specified part of a State or
Territory.
"(5) A court of summary jurisdiction must not hear and determine proceedings
under this Part otherwise than in accordance with any Proclamation in force
under subsection (3).
"(6) The Governor-General may, by Proclamation, declare that a Proclamation
under subsection (3) is revoked on and from a specified day.
"(7) If, under subsection (6), the Governor-General declares that a
Proclamation under subsection (3) is revoked:
(a) this Part (including subsection (3)) has effect as if the revoked
Proclamation had not been made; but
(b) the effect of the revoked Proclamation on the jurisdiction of courts
before the specified day is not affected. Territory court does not
have jurisdiction unless a party is ordinarily resident in the
Territory
"69K. A court of a Territory must not hear or determine proceedings under this
Part unless at least one of the parties to the proceedings is ordinarily
resident in the Territory when the proceedings are instituted or are
transferred to the court. Jurisdiction in relation to transferred matters
under other Commonwealth laws
"69L. If proceedings in relation to a matter arising under a law of the
Commonwealth are transferred under this Act to a court that has jurisdiction
conferred on or invested in it by this Division, the jurisdiction so conferred
on or invested in the court includes jurisdiction in relation to that matter.
Jurisdiction is additional to other jurisdiction
"69M. The jurisdiction conferred on or invested in a court by this Division is
in addition to any jurisdiction conferred on or invested in the court apart
from this Division. Transfer of proceedings from courts of summary
jurisdiction in certain cases
"69N.(1) This section applies if:
(a) proceedings for a parenting order are instituted in a court of summary
jurisdiction; and
(b) the respondent, in answer to the application by which the proceedings
were instituted, seeks an order different from that sought in the
application.
"(2) The court must, before going on to hear and determine the proceedings,
inform the parties that, unless each of them consents to the court hearing and
determining the proceedings, the court is required to transfer the proceedings
to the Family Court, a Family Court of a State or the Supreme Court of the
Northern Territory.
"(3) If the parties do not consent to the court hearing and determining the
proceedings, the court must transfer the proceedings accordingly.
"(4) Before transferring the proceedings, the court may make such orders
(including an order under subsection 62F(2)) as it considers necessary pending
the disposal of the proceedings by the court to which they are transferred.
"(5) If the parties consent to the court hearing and determining the
proceedings:
(a) a party is not entitled, without leave of the court, subsequently to
object to the proceedings being heard and determined by the court; but
(b) the court may, on its own initiative, transfer the proceedings to the
Family Court, a Family Court of a State or the Supreme Court of the
Northern Territory.
"(6) If the court subsequently gives leave to a party to object to the
proceedings being heard and determined by the court, the court must transfer
the proceedings to the Family Court, a Family Court of a State or the Supreme
Court of the Northern Territory.
"(7) A court to which proceedings are transferred must deal with the
proceedings as if they had been instituted in the court.
"(8) Failure by a court of summary jurisdiction to comply with this section in
relation to proceedings does not invalidate any order made by the court in the
proceedings.
"(9) Subsection (8) does not affect the duty of a court of summary
jurisdiction to comply with this section.
"Subdivision D - Presumptions of parentage Presumptions of parentage arising
from marriage
"69P.(1) If a child is born to a woman while she is married, the child is
presumed to be a child of the woman and her husband.
"(2) If:
(a) at a particular time:
(i) a marriage to which a woman is a party is ended by death; or
(ii) a purported marriage to which a woman is a party is annulled;
and
(b) a child is born to the woman within 44 weeks after that time; the
child is presumed to be a child of the woman and the husband or
purported husband.
"(3) If:
(a) the parties to a marriage separated at any time; and
(b) after the separation, they resumed cohabitation on one occasion; and
(c) within 3 months after the resumption of cohabitation, they separated
again and lived separately and apart; and
(d) a child is born to the woman within 44 weeks after the end of the
cohabitation, but after the dissolution of the marriage; the child is
presumed to be a child of the woman and the husband. Presumption of
paternity arising from cohabitation
"69Q. If:
(a) a child is born to a woman; and
(b) at any time during the period beginning not earlier than 44 weeks and
ending not less than 20 weeks before the birth, the woman cohabited
with a man to whom she was not married; the child is presumed to be a
child of the man. Presumption of parentage arising from registration
of birth
"69R. If a person's name is entered as a parent of a child in a register of
births or parentage information kept under a law of the Commonwealth or of a
State, Territory or prescribed overseas jurisdiction, the person is presumed
to be a parent of the child.
Presumptions of parentage arising from findings of courts
"69S.(1) If:
(a) during the lifetime of a particular person, a prescribed court has:
(i) found expressly that the person is a parent of a particular
child; or
(ii) made a finding that it could not have made unless the person
was a parent of a particular child; and
(b) the finding has not been altered, set aside or reversed; the person is
conclusively presumed to be a parent of the child.
"(2) If:
(a) after the death of a particular person, a prescribed court has:
(i) found expressly that the person was a parent of a particular
child; or
(ii) made a finding that it could not have made unless the person
was a parent of a particular child; and
(b) the finding has not been altered, set aside or reversed; the person is
presumed to have been a parent of the child.
"(3) In this section:
'prescribed court' means a federal court, a court of a State or Territory or a
court of a prescribed overseas jurisdiction. Presumption of paternity arising
from acknowledgments
"69T. If:
(a) under the law of the Commonwealth or of a State, Territory or
prescribed overseas jurisdiction, a man has executed an instrument
acknowledging that he is the father of a specified child; and
(b) the instrument has not been annulled or otherwise set aside; the man
is presumed to be the father of the child. Rebuttal of presumptions
etc.
"69U.(1) A presumption arising under this Subdivision is rebuttable by proof
on a balance of probabilities.
"(2) Where:
(a) 2 or more presumptions arising under this Subdivision are relevant in
any proceedings; and
(b) those presumptions, or some of those presumptions, conflict with each
other and are not rebutted in the proceedings; the presumption that
appears to the court to be the more or most likely to be correct
prevails.
"(3) This section does not apply to a presumption arising under subsection
69S(1).
"Subdivision E - Parentage evidence
Evidence of parentage
"69V. If the parentage of a child is a question in issue in proceedings under
this Act, the court may make an order requiring any person to give such
evidence as is material to the question. Orders for carrying out of parentage
testing procedures
"69W.(1) If the parentage of a child is a question in issue in proceedings
under this Act, the court may make an order (a 'parentage testing order')
requiring a parentage testing procedure to be carried out on a person
mentioned in subsection (3) for the purpose of obtaining information to assist
in determining the parentage of the child.
"(2) A court may make a parentage testing order:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a person representing the child under an order made under
section 68L.
"(3) A parentage testing order may be made in relation to:
(a) the child; or
(b) a person known to be the mother of the child; or
(c) any other person, if the court is of the opinion that, if the
parentage testing procedure were to be carried out in relation to the
person, the information that could be obtained might assist in
determining the parentage of the child.
"(4) A parentage testing order may be made subject to terms and conditions.
"(5) This section does not affect the generality of section 69V. Orders
associated with parentage testing orders
"69X.(1) If a court makes a parentage testing order, it may also make orders
under subsection (2) or (4).
"(2) The court may make such orders as it considers necessary or desirable:
(a) to enable the parentage testing procedure to be carried out; or
(b) to make the parentage testing procedure more effective or reliable.
"(3) Some examples of the kinds of orders the court may make under subsection
(2) are as follows:
(a) an order requiring a person to submit to a medical procedure;
(b) an order requiring a person to provide a bodily sample;
(c) an order requiring a person to provide information relevant to the
person's medical or family history.
"(4) The court may make such orders as it considers just in relation to costs
incurred in relation to:
(a) the carrying out of the parentage testing procedure or other orders
made by the court in relation to the parentage testing procedure; or
(b) the preparation of reports relating to the information obtained as a
result of carrying out the parentage testing procedure. Orders
directed to persons 18 or over
"69Y.(1) If a person who is 18 or over contravenes a parentage testing order
or an order under section 69X, the person is not liable to any penalty in
relation to the contravention.
"(2) The court may draw such inferences from the contravention as appear just
in the circumstances. Orders directed to children under 18
"69Z.(1) This section applies if a parentage testing order, or an order under
section 69X, requires a medical procedure or other act to be carried out in
relation to a child who is under 18.
"(2) The procedure or act must not be carried out in relation to the child
under the order without the consent of:
(a) a parent of the child; or
(b) a guardian of the child; or
(c) a person who, under a specific issues order, is responsible for the
child's long-term or day-to-day care, welfare and development.
"(3) The court may draw such inferences from a failure or refusal to consent
as mentioned in subsection (2) as appear just in the circumstances. No
liability if parent etc. consents
"69ZA.(1) A person who carries out, or who assists in the carrying out of, a
medical procedure or other act in relation to a child under a parentage
testing order is not liable to any civil or criminal action in relation to the
proper carrying out of the procedure or act if it is carried out with the
consent of:
(a) a parent of the child; or
(b) a guardian of the child; or
(c) a person who, under a specific issues order, is responsible for the
child's long-term or day-to-day care, welfare and development.
"(2) Subsection (1) does not affect any liability of a person for an act done
negligently, or negligently omitted to be done, in relation to the carrying
out of the medical procedure or act. Regulations about carrying out, and
reporting on, parentage testing procedures
"69ZB. The regulations may make provision relating to:
(a) the carrying out of parentage testing procedures under parentage
testing orders; and
(b) the preparation of reports relating to the information obtained as the
result of carrying out such procedures. Reports of information
obtained may be received in evidence
"69ZC.(1) A report made in accordance with regulations covered by paragraph
69ZB(b) may be received in evidence in any proceedings under this Act.
"(2) If, under subsection (1), a report is received in evidence in proceedings
under this Act, the court may make an order requiring the person who made the
report, or any person whose evidence may be relevant in relation to the
report, to appear before the court and give evidence in relation to the
report.
"(3) A court may make an order under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a person representing the relevant child under an order made
under section 68L. Parentage testing for purposes of
international maintenance agreements
"69ZD. For the purpose of the carrying out of any of Australia's obligations
under:
(a) an arrangement with a reciprocating jurisdiction, or with a
jurisdiction with restricted reciprocity, within the meaning of
section 110; or
(b) the Convention referred to in section 111; the regulations may make
provision:
(c) conferring jurisdiction on a court to make an order requiring a
parentage testing procedure to be carried out at the request of:
(i) a court or authority in a foreign country; or
(ii) the Secretary to the Department, or a person authorised by the
Secretary; or
(d) for the carrying out of a parentage testing procedure, and the
preparation of a report in relation to the information obtained as a
result of the carrying out of the procedure; or
(e) for the admissibility in legal proceedings of a report, in relation to
the information obtained as a result of the carrying out of a
parentage testing procedure, received from an authority in a foreign
country; whether or not there is any express provision in the relevant
arrangement or in the Convention authorising the carrying out of a
parentage testing procedure.
"Subdivision F - Extension, application and additional
operation of Part Extension of Part to the States
"69ZE.(1) Subject to this section and section 69ZF, this Part extends to New
South Wales, Victoria, Queensland, South Australia and Tasmania.
"(2) Subject to this section and section 69ZF, this Part extends to Western
Australia if:
(a) the Parliament of Western Australia refers to the Parliament of the
Commonwealth the following matters or matters that include, or are
included in, the following matters:
(i) the maintenance of children and the payment of expenses in
relation to children or child bearing;
(ii) parental responsibility for children; or
(b) Western Australia adopts this Part.
"(3) This Part extends to a State under subsection (1) or (2) only for so long
as there is in force:
(a) an Act of the Parliament of the State by which there is referred to
the Parliament of the Commonwealth:
(i) the matters referred to in subparagraphs (2)(a)(i) and (ii); or
(ii) matters that include, or are included in, those matters; or
(b) a law of the State adopting this Part.
"(4) This Part extends to a State at any time under subsection (1) or
paragraph (2)(a) only in so far as it makes provision with respect to:
(a) the matters that are at that time referred to the Parliament of the
Commonwealth by the Parliament of the State; or
(b) matters incidental to the execution of any power vested by the
Constitution in the Parliament of the Commonwealth in relation to
those matters. Unless declaration in force, Part's extension to a
State has effect subject to modifications
"69ZF.(1) The Governor-General may, by Proclamation, declare that all the
child welfare law provisions of this Part extend to a specified State.
"(2) Despite anything in section 69ZE, if no declaration under subsection (1)
is in force in relation to a particular State, this Part, as it extends to
that State because of section 69ZE, has effect as if:
(a) subsection 66F(2) were omitted; and
(b) subsections 69ZE(1) and (2) were amended by omitting 'and section
69ZF'; and
(c) section 69ZF were omitted; and
(d) paragraph 69ZK(1)(b) were omitted; and
(e) subsection 69ZK(2) were amended by adding at the end the following
word and paragraphs:
'; or (d) the jurisdiction of a court under a child welfare law to make an
order in relation to the maintenance of the child; or
(e) an order of the kind referred to in paragraph (d).'.
"(3) A Proclamation that was in force in relation to a State under subsection
60E(6) of this Act as in force before the commencement of this section has
effect, after that commencement, as if it were a Proclamation under subsection
(1) of this section. Note: This section preserves the effect of subsections
60E(6) and (7) of this Act as in force before the commencement of this
section. Under those subsections, the amendments of this Act made by the
Law and Justice Legislation Amendment Act 1992 did not extend to a State
unless a Proclamation was in force in relation to the State. Application of
Part in, and in relation to, Territories
"69ZG. This Part applies in and in relation to the Territories. Additional
application of Part
"69ZH.(1) Without prejudice to its effect apart from this section, this Part
also has effect as provided by this section.
"(2) By virtue of this subsection, Divisions 2 to 7 (inclusive) (other than
Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N),
Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B
and C of Division 12 (other than section 69D) have the effect, subject to
subsection (3), that they would have if:
(a) each reference to a child were, by express provision, confined to a
child of a marriage; and
(b) each reference to the parents of the child were, by express provision,
confined to the parties to the marriage.
"(3) The provisions mentioned in subsection (2) only have effect as mentioned
in that subsection so far as they make provision with respect to the
parental responsibility of the parties to a marriage for a child of the
marriage, including (but not being limited to):
(a) the duties, powers, responsibilities and authority of those parties in
relation to:
(i) the maintenance of the child and the payment of expenses in
relation to the child; or
(ii) the residence of the child, contact between the child and other
persons and other aspects of the care, welfare and development
of the child; and
(b) other aspects of duties, powers, responsibilities and authority in
relation to the child:
(i) arising out of the marital relationship; or
(ii) in relation to concurrent, pending or completed proceedings
between those parties for principal relief; or
(iii) in relation to a dissolution or annulment of that marriage, or
a legal separation of the parties to the marriage, that is
effected in accordance with the law of an overseas jurisdiction
and that is recognised as valid in Australia under section 104.
"(4) By virtue of this subsection, Division 1, Subdivisions C, D and E of
Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13
and 14 and this Subdivision, have effect according to their tenor. Additional
jurisdiction of courts
"69ZJ. In addition to the jurisdiction that, apart from this section, is
invested in or conferred on a court under this Part, the court is invested
with jurisdiction or jurisdiction is conferred on the court, as the case
requires, in matters between residents of different States, being matters with
respect to:
(a) the maintenance of children and the payment of expenses in relation to
children or child bearing; or
(b) parental responsibility in relation to children. Child welfare laws
not affected
"69ZK.(1) A court having jurisdiction under this Act must not make an order
under this Act (other than an order under Division 7) in relation to a child
who is under the care (however described) of a person under a child welfare
law unless:
(a) the order is expressed to come into effect when the child ceases to be
under that care; or
(b) the order is made in proceedings relating to the child in respect of
the institution or continuation of which the written consent of a
child welfare officer of the relevant State or Territory has been
obtained.
"(2) Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a
child welfare law to make an order, or to take any other action, by
which a child is placed under the care (however described) of a person
under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
"(3) If it appears to a court having jurisdiction under this Act that another
court or an authority proposes to make an order, or to take any other action,
of the kind referred to in paragraph (2)(a) in relation to a child, the
first-mentioned court may adjourn any proceedings before it that relate to the
child.
"Division 13 - State, Territory and overseas orders
" Subdivision A - What this Division does What this Division does
"70A. This Division provides for:
(a) the registration of State and Territory orders dealing with children
(Subdivision B); and
(b) the registration of overseas orders dealing with children (Subdivision
C); and
(c) the transmission of Australian orders to overseas jurisdictions
(Subdivision D).
"Subdivision B - Registration of State and Territory orders Interpretation
"70B. In this Subdivision:
'State' includes a Territory;
'State child order' means an order made under the law of a State:
(a) that (however it is expressed) has the effect of determining the
person or persons with whom a child who is under 18 is to live, or
that provides for a person or persons to have custody of a child who
is under 18; or
(b) that (however it is expressed) has the effect of providing for contact
between a child who is under 18 and another person or persons, or that
provides for a person or persons to have access to a child who is
under 18. General registration of orders made under law of prescribed
State
"70C. The Rules of Court may make provision for and in relation to the
registration in a court having jurisdiction under this Part of State child
orders made under a law of a prescribed State. Registration of orders in a
particular State
"70D. The Rules of Court may make provision for and in relation to the
registration in a State in a court having jurisdiction under this Act of State
child orders made by a court in another State. Effect of registration
"70E. A State child order registered in a court under section 70C or 70D has
the same force and effect as if it were an order made by that court under this
Part.
"Subdivision C - Registration of overseas orders
Interpretation
"70F. In this Subdivision:
'care order' means a specific issues order under which a person is responsible
for a child's day-to-day care, welfare and development;
'excluded order' means:
(a) an interim order; or
(b) an order made in favour of a person where:
(i) the order was made on the application of the person; and
(ii) notice of making the application was not served on any other
person; and
(iii) no other person appeared at the hearing of the application;
'overseas child order' means an order made by a court of a prescribed
overseas jurisdiction:
(a) that (however it is expressed) has the effect of determining the
person or persons with whom a child who is under 18 is to live, or
that provides for a person or persons to have custody of a child who
is under 18; or
(b) that (however it is expressed) has the effect of providing for contact
between a child who is under 18 and another person or persons, or that
provides for a person or persons to have access to a child who is
under 18; or
(c) an order varying or discharging an order of the kind referred to in
paragraph (a) or (b), including an order of that kind made under this
Act. Registration of orders
"70G. The regulations may make provision for and in relation to the
registration in courts in Australia of overseas child orders, other than
excluded orders. Effect of registration - general
"70H. An overseas child order registered in a court under section 70G has the
same force and effect as if it were an order made by that court under this
Part. Effect of registration on exercise of jurisdiction
"70J.(1) A court in Australia that is aware that an overseas child order is
registered under section 70G must not exercise jurisdiction in proceedings for
the making of a residence order, a contact order or a care order in relation
to the child concerned unless:
(a) each person with whom the child is supposed to live or have contact
under the overseas order, or who has rights of custody or access in
relation to the child concerned under the order, consents to the
exercise of jurisdiction by the court in the proceedings; or
(b) the court is satisfied that there are substantial grounds for
believing that the child's welfare requires that the court exercise
jurisdiction in the proceedings.
"(2) If a court exercises jurisdiction in proceedings for a residence order, a
contact order or a care order in relation to a child who is the subject of an
overseas child order, the court must not make a residence order, a contact
order or a care order in relation to the child unless it is satisfied:
(a) that the welfare of the child is likely to be adversely affected if
the order is not made; or
(b) that there has been such a change in the circumstances of the child
since the making of the overseas child order that the residence order,
contact order or care order ought to be made. Cancellation of
registration if residence order, contact order or care order made
"70K. If a court:
(a) is aware that an overseas child order is registered under section 70G;
and
(b) makes a residence order, a contact order or a care order in relation
to the child concerned; the court must cancel the registration of the
overseas child order. Relationship between Australian orders and
registered overseas child orders
"70L.(1) In this section:
'Australian child order' means:
(a) a residence order, a contact order or a care order; or
(b) a State child order as defined in section 70B;
'responsible person', in relation to an Australian child order or an overseas
child order, means a person:
(a) with whom the child is supposed to live or have contact under the
order; or
(b) who is responsible for the child's day-to-day care, welfare and
development under the order; or
(c) who has a right to custody of, or access to, the child under the
order.
"(2) This section applies if:
(a) an Australian child order, whether made under this Part or another
law, is in force under this Part in relation to a child; and
(b) an overseas child order, other than an excluded order, that relates to
the child but that has a different effect from the Australian order
has been registered under section 70G (whether before or after the
making of the Australian child order) and its registration has not
been cancelled.
"(3) A responsible person under the overseas child order may apply to a court
having jurisdiction under this Part for the discharge of the Australian child
order.
"(4) A responsible person under the Australian child order may apply to a
court having jurisdiction under this Part for the cancellation of the
registration of the overseas child order.
"(5) If an application is made under subsection (3) or (4), the court must:
(a) if a condition specified in subsection (6) is satisfied - cancel the
registration of the overseas child order; or
(b) in any other case - discharge the Australian child order.
"(6) For the purposes of paragraph (5)(a), the conditions are:
(a) each responsible person under the overseas child order consents to the
cancellation of the registration of the order; or
(b) the court is satisfied that there are substantial grounds for
believing that the child's welfare will be adversely affected if the
overseas child order continues to operate in relation to the child; or
(c) the court is satisfied that there has been a change in the
circumstances of the child since the overseas child order was made
that makes it inappropriate for the order to continue to operate in
relation to the child.
"Subdivision D - Transmission of Australian orders to
overseas jurisdictions Registrar to send documents etc. to overseas
jurisdiction
"70M.(1) This section applies if:
(a) a court in Australia makes, in relation to a child who is under 18, a
residence order, a contact order or a specific issues order, or a
State child order as defined in section 70B; and
(b) the order is enforceable in a prescribed overseas jurisdiction under
provisions corresponding to Subdivision C.
"(2) A person referred to in subsection (3) may, in writing, request the
Registrar of the court to send to an appropriate court or authority in the
overseas jurisdiction the documents and information necessary for securing the
enforcement of the order in the overseas jurisdiction.
"(3) A request under subsection (2) may be made by:
(a) a person with whom the child is supposed to live or have contact under
the order; or
(b) a person who has a right to custody of, or of access to, the child
under the order.
"(4) The Registrar of the court must comply with a request under subsection
(2). Regulations may deal with sending Australian orders etc. to overseas
jurisdiction
"70N. The regulations may make provision for and in relation to the sending to
a prescribed overseas jurisdiction of copies of, and documents relating to, a
residence order, a contact order or a specific issues order, or a State child
order as defined in section 70B, that relates to a child to whom an overseas
child order relates.
"Division 14 - Miscellaneous
What this Division does
"70P. This Division deals with miscellaneous matters relating to children.
Certain instruments not liable to duty
"70Q.(1) The following instruments are not subject to any duty or charge under
any law of a State or Territory or any law of the Commonwealth that applies
only in relation to a Territory:
(a) an instrument executed under, or for the purposes of, an order made
under this Part;
(b) an eligible parenting plan that confers a benefit in relation to a
child, to the extent to which it confers the benefit;
(c) an instrument executed under, or for the purposes of, an eligible
parenting plan and that confers a benefit in relation to a child, to
the extent to which it confers the benefit.
"(2) An eligible parenting plan is a parenting plan:
(a) the registration of which under section 63E is in force; and
(b) that is not a maintenance agreement, or, if it is a maintenance
agreement, it relates to a child who is not a child of the marriage to
which the maintenance agreement relates; and
(c) that:
(i) is made by the parties to a de facto relationship in connection
with the breakdown of that relationship; or
(ii) relates to a child whose parents (being parties to the plan)
were neither married to each other, nor living with each other
in a de facto relationship, at the time of the child's
conception.
"(3) In this section, a reference to an instrument that confers a benefit in
relation to a child includes a reference to an instrument that confers an
entitlement to property in relation to a child even though the instrument also
deprives the child or another person of an entitlement to other property in
relation to the child.".
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