Family Law Amendment Act 1987 (Cth)

Family Law Amendment Act 1987 No. 181 of 1987 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title 2. Commencement 3. Principal Act PART II—AMENDMENTS OF THE FAMILY LAW ACT 1975 4. Title 5. Interpretation 6. Repeal of sections 5 and 5a 7. Transitional 8. Repeal of section 10 9. Conciliation 10. Notice seeking counselling 11. Advice as to counselling 12. Conciliation counselling 13. Provision of certain documents 14. Original jurisdiction of Family Court 15. Delegation of powers to Registrars 16. Jurisdiction in matrimonial causes 17. Jurisdiction of Family Court 18. Principles to be applied by courts 19. Institution of proceedings 20. Transfer of proceedings from court of summary jurisdiction in certain cases 21. When decree becomes absolute 22. Insertion of new section: 55a. Decree absolute where children 23. Heading to Part VII 24. Repeal of sections 60, 60a and 61 and insertion of Divisions, heading and sections: TABLE OF PROVISIONS—continued Section Division 1—General 60. Interpretation 60a. Certain children are children of marriage etc. 60b. Children born as a result of artificial conception procedures 60c. Application of Part in relation to void marriages 60d. Welfare of child to be paramount consideration Division 2—Extension, application and additional operation of Part 60e. Extension and application of Part 60f. Additional application of Part 60g. Additional jurisdiction of courts 60h. Child welfare laws not affected Division 3—Counselling 61. Notice seeking court counselling 61a. Court counselling facilities to be made available 61b. Conciliation counselling 61c. Provision of certain documents 25. Repeal of section and insertion of Division, heading and sections: Division 4—Jurisdiction of Courts 63. Jurisdiction of courts under Part 63a. Certain proceedings to be instituted only under Part 63b. Child to be present in Australia etc. 63c. Persons who may institute proceedings under Act 63d. Transfer of proceedings from courts of summary jurisdiction in certain cases Division 5—Custody and guardianship of children 63e. Custody and guardianship 63f. Rights of custody and guardianship of children 26. Powers of court 27. Separate representation of child 28. Insertion of Divisions and heading: Division 6—Maintenance of children 66a. Objects of Division 66b. Duty of parents to maintain their children 66c. Approach to be adopted in child maintenance proceedings 66d. Matters to be taken into account in considering financial support necessary for maintenance of child 66e. Matters to be taken into account in determining contribution that should be made by party etc. 66f. Powers of court in child maintenance proceedings 66g. Step-parents to assist in maintenance of step-children in certain circumstances etc. 66h. Children who have attained 18 years of age 66j. General powers of court 66k. Urgent maintenance orders 66l. Specification in orders of payments etc. for child maintenance purposes 66m. Cessation of orders 66n. Modification of maintenance orders TABLE OF PROVISIONS—continued Section Division 7—Presumptions of parentage 66p. Presumptions of parentage arising from marriage 66q. Presumption of paternity arising from cohabitation 66r. Presumption of parentage arising from registration of birth 66s. Presumptions of parentage arising from findings of courts 66t. Presumption of paternity arising from acknowledgements 66u. Rebuttal of presumptions etc. Division 8—Parentage evidence 66v. Evidence of parentage 66w. Medical procedures to determine parentage Division 9—Child bearing expenses 66x. Father liable to contribute towards maintenance and expenses of mother 66y. Matters to be taken into account in proceedings under Division 66z. Powers of court in proceedings under Division 66za. Urgent orders 66zb. Time limit for institution of proceedings Division 10—Child agreements 66zc. Registration of child agreements 66zd. Child welfare provisions of registered child agreements 66ze. Setting aside of registered child agreements Division 11—State, Territory and overseas custody orders 29. Registration of State and Territory custody orders 30. Overseas custody orders 31. Insertion of heading: Division 12—Enforcement of custody and access orders 32. Interfering with child subject to custody order 33. Certain children not to be taken out of Australia 34. Obligation of owners of vessels etc. 35. Insertion of Divisions: Division 13—Injunctions 70c. Injunctions 70d. Powers of arrest Division 14—Miscellaneous 70e. Institution of maintenance proceedings by authorised authority or person 36. Heading to Part VIII 37. Repeal of section 73 38. Power of court in spousal maintenance proceedings 39. Matters to be taken into consideration in relation to spousal maintenance 40. Repeal of section 76 41. Urgent spousal maintenance cases 42. Insertion of new section: 77a. Specification in orders of payments etc. for spouse maintenance purposes 43. General powers of court 44. Cessation of spousal maintenance orders 45. Modification of spousal maintenance orders 46. Registered maintenance agreements TABLE OF PROVISIONS—continued Section 47. Operation of maintenance agreements entered into in substitution for rights under Act 48. Insertion of new section: 87a. Specification in maintenance agreements of payments etc. for maintenance purposes 49. Institution of spousal maintenance proceedings by authority or person 50. Certain instruments not liable to duty 51. Intervention by other persons 52. Proceedings in absence of parties 53. Repeal of sections 99 and 99a 54. Repeal of section 102 and substitution of section: 102. Proof of birth, parentage, death or marriage 55. Persons not to be imprisoned for failure to comply with certain orders 56. Inter-State enforcement of child bearing expenses orders 57. Overseas enforcement of maintenance orders etc. 58. Injunctions 59. Powers of arrest 60. Operation of State and Territory laws 61. Offers of settlement 62. Regulations 63. Formal amendments PART III—TRANSITIONAL AND APPLICATION PROVISIONS 64. Application of relief from time limits applying in relation to institution of certain proceedings 65. Transitional provision in relation to section 46 of Family Law Act 66. Application of certain provisions in relation to children born before commencement of Act 67. Application of specification requirements in orders and agreements 68. Savings provisions in relation to injunctions SCHEDULE FORMAL AMENDMENTS Family Law Amendment Act 1987 No. 181 of 1987 An Act to amend the Family Law Act 1975, and for related purposes [Assented to 26 December 1987] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: PART I—PRELIMINARY Short title 1. This Act may be cited as the Family Law Amendment Act 1987. Commencement 2. This Act shall come into operation on a day to be fixed by Proclamation. Principal Act 3. In this Act, "Principal Act" means the Family Law Act 19751. PART II—AMENDMENTS OF THE FAMILY LAW ACT 1975 Title 4. The title to the Principal Act is amended by inserting "and otherwise" after "thereto". Interpretation 5. Section 4 of the Principal Act is amended: (a) by omitting "subsection" from the definition of "financial or custodial proceedings" in subsection (1) and substituting "subsection or under Part VII"; (b) by omitting paragraphs (cb) to (ch) (inclusive) of the definition of "matrimonial cause" in subsection (1); (c) by omitting from paragraph (eb) of the definition of "matrimonial cause" in subsection (1) "(cb), (cc), (cd) or (ce)"; (d) by omitting from subsection (1) the definitions of "adopted" and "guardian"; (e) by inserting in subsection (1) the following definitions in their respective appropriate alphabetical positions (determined on a letter-by-letter basis): " 'child of a marriage' includes a child who is, under subsection 60a (1) or (2), a child of a marriage, but does not include a child who has, under subsection 60a (3), ceased to be a child of a marriage; 'income tested pension, allowance or benefit' means a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of this definition; 'police officer' means: (a) a member or special member of the Australian Federal Police; or (b) a member, however described, of the police force of a State or Territory; 'this Act' includes the regulations and Rules of Court;"; and (f) by omitting subsections (3) and (4). Repeal of sections 5 and 5a 6. Sections 5 and 5a of the Principal Act are repealed. Transitional 7. Section 9 of the Principal Act is amended by omitting from paragraphs (7) (b) and (7a) (a) and (b) "63" (wherever occurring) and substituting "55a". Repeal of section 10 8. Section 10 of the Principal Act is repealed. Conciliation 9. Section 14 of the Principal Act is amended: (a) by omitting from subsection (4) "the children of the marriage" and substituting "their children"; and (b) by omitting from subsection (5) "and to any child of the marriage" and substituting "or to any of their children". Notice seeking counselling 10. Section 15 of the Principal Act is amended by omitting from subsection (2) "and to the children of the marriage" and substituting "or to any of their children". Advice as to counselling 11. Section 16 of the Principal Act is amended by omitting from subsection (2) ", or a child of, a marriage, or any party to" and substituting "a marriage, or to". Conciliation counselling 12. Section 16a of the Principal Act is amended: (a) by omitting from paragraph (a) "children of marriages" and substituting "their children"; and (b) by adding at the end the following subsection: "(2) Subsection (1) does not apply in relation to: (a) a court exercising jurisdiction under Part VII; or (b) proceedings under Part VII.". Provision of certain documents 13. Section 17 of the Principal Act is amended: (a) by inserting "(other than under Part VII)" after "Act"; and (b) by omitting from paragraph (a) "the children of the marriage" and substituting "children whose welfare is likely to be affected by the proceedings". Original jurisdiction of Family Court 14. Section 31 of the Principal Act is amended by omitting subparagraphs (1) (c) (ii) and (iii). Delegation of powers to Registrars 15. Section 37a of the Principal Act is amended by inserting in subparagraph (1) (f) (i) "66k, 66za or" after "section". Jurisdiction in matrimonial causes 16. Section 39 of the Principal Act is amended: (a) by omitting paragraphs (4) (a), (b) and (c) and substituting the following paragraphs: "(a) in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage—either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and (b) in any other case—any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date."; and (b) by omitting paragraphs (5) (c) and (6) (c). Jurisdiction of Family Court 17. Section 40 of the Principal Act is amended by adding at the end the following subsection: "(8) This section does not apply in relation to proceedings under Part VII.". Principles to be applied by courts 18. Section 43 of the Principal Act is amended: (a) by omitting "or any other Act"; and (b) by omitting from paragraph (d) "the children of the marriage" and substituting "their children". Institution of proceedings 19. Section 44 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection: "(4) The court shall not grant leave under subsection (3) or (3a) unless it is satisfied: (a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or (b) in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.". Transfer of proceedings from court of summary jurisdiction in certain cases 20. Section 46 of the Principal Act is amended: (a) by omitting subsection (1) and substituting the following subsection: "(1) Where proceedings are instituted in a court of summary jurisdiction in relation to property of a value exceeding the amount in relation to which the court has jurisdiction in an action for the recovery of a debt and the respondent, in answer to the application by which the proceedings are instituted, seeks an order different from that sought in the application: (a) the court shall, before proceeding 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 or to the Supreme Court of a State or Territory; and (b) unless the parties consent to the court hearing and determining the proceedings—the court shall transfer the proceedings to the Family Court or to the Supreme Court of a State or Territory."; and (b) by omitting from subsection (3) ", including an order under section 62,". When decree becomes absolute 21. Section 55 of the Principal Act is amended by omitting from subsection (1) and subparagraph (5) (a) (ii) "63" and substituting "55a". 22. After section 55 of the Principal Act the following section is inserted: Decree absolute where children "55a. (1) A decree nisi of dissolution of marriage does not become absolute unless the court has, by order, declared that it is satisfied: (a) that there are no children of the marriage who have not attained 18 years of age; or (b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that: (i) proper arrangements in all the circumstances have been made for the welfare of those children; or (ii) there are circumstances by reason of which the decree nisi should become absolute even though the court is not satisfied that such arrangements have been made. "(2) Where, in proceedings for a decree of dissolution of marriage, the court doubts whether the arrangements made for the welfare of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a court counsellor or welfare officer regarding those arrangements. "(3) For the purposes of this section, a child (including an ex-nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time. "(4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the decree nisi of dissolution of marriage was made.". Heading to Part VII 23. The heading to Part VII of the Principal Act is omitted and the following heading is substituted: "PART VII—CHILDREN". 24. Sections 60, 60a and 61 of the Principal Act are repealed and the following Divisions, heading and sections are substituted: "Division 1—General Interpretation "60. In this Part, unless the contrary intention appears: '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; 'child agreement' means an agreement: (a) that is in writing; (b) that is made (whether before or after the commencement of this section and whether within or outside Australia) between the parents of a child (whether or not there are other parties to the agreement); and (c) that makes provision in relation to child welfare matters in relation to the child (whether or not it also makes provision in relation to other matters); and includes such an agreement that varies an earlier child agreement; '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; (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; (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 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 matters' means matters in relation to the custody, guardianship or welfare of, or access to, a child, but does not include matters in relation to the maintenance of a child; 'education' includes apprenticeship or vocational training; '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: (a) this Act or another law of the Commonwealth; or (b) the law of a State or Territory; '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; 'overseas custody order' means an order made by a court of a prescribed overseas jurisdiction that is: (a) an order the effect of which is to grant to a person: (i) the right to custody of a child who has not attained 18 years of age; or (ii) a right of access to a child who has not attained 18 years of age; whether or not the order also has the effect of granting to the person, or to another person, other rights and responsibilities; or (b) an order varying or discharging an order of the kind referred to in paragraph (a), including an order of that kind made under this Act; 'parent', in relation to a child who has been adopted, means an adoptive parent of the child; 'parentage testing procedure' means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition; 'step-parent', in relation to a child, means a person who: (a) is not a parent of the child; (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. Certain children are children of marriage etc. "60a. (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 60b (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 is not a party to the marriage ceases to be a child of the marriage for the purposes of this Act. Children born as a result of artificial conception procedures "60b. (1) Where: (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. "(2) Where: (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. "(3) Where: (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. "(4) Where a person lives with another person as the husband or wife of the first-mentioned person on a bona fide 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 shall 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. Application of Part in relation to void marriages "60c. 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. Welfare of child to be paramount consideration "60d. In proceedings under this Part in relation to a child, the court shall regard the welfare of the child as the paramount consideration. "Division 2—Extension, application and additional operation of Part Extension and application of Part "60e. (1) Subject to subsections (4) and (5), this Part extends to New South Wales, Victoria, South Australia and Tasmania. "(2) If: (a) the Parliament of Queensland or 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) the custody and guardianship of, and access to, children; or (b) Queensland or Western Australia adopts this Part; then, subject to subsections (4) and (5), this Part also extends to Queensland or Western Australia, as the case may be. "(3) This Part applies in and in relation to the Territories. "(4) This Part extends to a State by virtue of 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. "(5) This Part extends to a State at any time by virtue of 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. Additional application of Part "60f. (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 3 to 6 (inclusive) (other than section 66g) and Divisions 10 and 13 have the effect 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; and have that effect only in so far as they make provision with respect to the rights and duties of the parties to the marriage in relation to the child, including, without limiting the generality of the foregoing, provision with respect to: (c) the rights and duties 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 custody, guardianship and welfare of, and access to, the child; and (d) other rights and duties in relation to the child: (i) arising out of the marital relationship; (ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief; or (iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where the dissolution, annulment or legal separation is recognised as valid in Australia under section 104. "(3) By virtue of this subsection, Divisions 1, 7, 8, 11, 12 and 14, and this Division, have effect according to their tenor. Additional jurisdiction of courts "60g. 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 arising 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) the custody, guardianship and welfare of, and access to, children. Child welfare laws not affected "60h. (1) A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be. "(2) Nothing in this Act, and no decree made 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 in the custody of, or under the guardianship, care and control or supervision of, a person; (b) any such order made or action taken; (c) the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child; (d) an order of the kind referred to in paragraph (c); and (e) the operation in relation to the child of a child welfare law. "(3) Where 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 3—Counselling Notice seeking court counselling "61. (1) A party to proceedings under this Part, or a person representing a child under an order made under section 65, 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, shall arrange for parties to the proceedings (with or without the child) to be interviewed by a court counsellor or welfare officer: (a) to discuss the welfare of the child; and (b) if there are differences between the parties in relation to matters affecting the welfare of the child, to endeavour to resolve those differences. Court counselling facilities to be made available "61a. (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, shall, as far as practicable, make those facilities available. Conciliation counselling "61b. The Family Court and any other court exercising jurisdiction under this Part, and any legal practitioner acting in proceedings under this Part or consulted by a person who is considering instituting proceedings under this Part, shall have regard to the need to direct the attention of parties to such proceedings, and persons considering such proceedings: (a) to the facilities provided by courts exercising jurisdiction under this Part for counselling to assist children and parties to adjust, to the consequences of orders under this Part; and (b) to the procedures available for the resolution by conciliation of matters arising in the proceedings. Provision of certain documents "61c. The Rules of Court shall provide for the furnishing to a person proposing to institute proceedings under this Part in relation to a child, and in appropriate cases to any other person who may be interested in the welfare of the child, of 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.". 25. Section 63 of the Principal Act is repealed and the following Division, heading and sections are substituted: "Division 4—Jurisdiction of Courts Jurisdiction of courts under Part "63. (1) Jurisdiction is conferred on the Family Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Part (including proceedings under sections 70c and 70d). "(2) Subject to subsections (5) and (7), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, in relation to matters arising under this Part (including proceedings under sections 70c and 70d). "(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 (including proceedings under sections 70c and 70d) may not be institut