Commonwealth: Family Law Amendment Act 2000 (Cth)

Family Law Amendment Act 2000 No. 143, 2000 Family Law Amendment Act 2000 No. 143, 2000 An Act to amend the Family Law Act 1975 and other Acts, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Consequences of failure to comply with orders and other obligations Family Law Act 1975 Schedule 2—Financial agreements Family Law Act 1975 Schedule 3—Other amendments A New Tax System (Family Assistance) Act 1999 Bankruptcy Act 1966 Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 Family Law Act 1975 Federal Magistrates Act 1999 Veterans' Entitlements Act 1986 Family Law Amendment Act 2000 No. 143, 2000 An Act to amend the Family Law Act 1975 and other Acts, and for related purposes [Assented to 29 November 2000] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Family Law Amendment Act 2000. 2 Commencement (1) Subject to subsections (1A) and (2), this Act commences 28 days after the day on which it receives the Royal Assent. (1A) Items 31A and 117 of Schedule 3 commence on the day on which this Act receives the Royal Assent. (2) Item 41 of Schedule 3 is taken to have commenced immediately after the commencement of section 26 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Consequences of failure to comply with orders and other obligations Family Law Act 1975 1 Paragraph 37A(1)(k) Repeal the paragraph. 2 Section 60C (table item 6) Repeal the item, substitute: 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 • measures to promote the exercise of parental responsibility—stage 1 of parenting compliance regime • dealing with people who have been arrested • obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia 3 Section 60C (after table item 13) Insert: 13A Division 13A—Enforcement of orders affecting children • court may do any or all of the following: (a) require a person who contravenes an order affecting children to participate in an appropriate post‑separation parenting program designed to help in the resolution of conflicts about parenting; (b) make a further parenting order that compensates for contact forgone as a result of the contravention; (c) adjourn the proceedings to enable an application to be made for a further parenting order; —stage 2 of parenting compliance regime • court must take other action in respect of a person who contravenes an order affecting children if the court is satisfied: (a) where the contravention is an initial contravention—that the person has behaved in a way that showed a serious disregard for his or her parenting obligations; or (b) where the contravention is a second or subsequent contravention—that it is not appropriate for the person to be dealt with by requiring his or her attendance at a post‑separation parenting program; —stage 3 of parenting compliance regime 4 After section 63D Insert: 63DA Explanation by person advising or assisting in the making of a parenting plan (1) If a person who is a family and child counsellor, a family and child mediator or a legal practitioner gives advice or assistance to people in connection with the making by them of a parenting plan, the person must explain to them, in language likely to be readily understood by them: (a) the obligations that the plan creates; and (b) the consequences that may follow if either of them fails to comply with any of those obligations; and (c) the availability of programs to help people who experience difficulties in complying with a parenting plan. (2) A court may cause to be prepared, and given to persons who are making a parenting plan, a document setting out particulars of the availability of programs to help people who experience difficulties in complying with a parenting plan. 4A Subsection 63F(3) (paragraph (b) of the note) Omit "Parts XIII and XIIIA", substitute "Division 13A of this Part and Part XIII". 5 After section 65A Insert: 65AA Measures to promote the exercise of parental responsibility Measures designed, as stage 1 of a parenting compliance regime, to improve communication between separated parents and to educate parents about their respective responsibilities in relation to their children are contained in this Division (see section 65DA). Remedial measures designed, as stage 2 of a parenting compliance regime, to enable parents to resolve issues of conflict about parenting and to help in the negotiation of improved parenting are contained in Subdivision B of Division 13A. Further measures designed, as stage 3 of a parenting compliance regime, to ensure that, as a last resort, a parent is dealt with for deliberate disregard of an order made by a court are contained in Subdivision C of Division 13A. 5A At the end of section 65D Add: (3) If the application for the parenting order was made as a result of the adjournment under paragraph 70NG(1)(c) of proceedings under Subdivision B of Division 13A of Part VII: (a) the court must hear and determine the application as soon as practicable; and (b) if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision. Note: The applicant may apply to the Family Court or to the Federal Magistrates Court for the application for the parenting order or for the proceedings under Subdivision B of Division 13A of Part VII, or both, to be transferred to the Federal Magistrates Court or to the Family Court, as the case requires (see section 33B of this Act and section 39 of the Federal Magistrates Act 1999). 6 After section 65D Insert: 65DA Parenting orders: stage 1 of parenting compliance regime (1) This section applies when a court makes a parenting order. (2) It is the duty of the court to include in the order particulars of: (a) the obligations that the order creates; and (b) the consequences that may follow if a person contravenes the order. (3) If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons: (a) the availability of programs to help people to understand their responsibilities under parenting orders; and (b) the availability and use of location and recovery orders to ensure that parenting orders are complied with. (4) The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in paragraphs (3)(a) and (b). (5) If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner: (a) to assist in explaining to the person the matters mentioned in paragraphs (2)(a) and (b); and (b) to explain to the person the matters mentioned in paragraphs (3)(a) and (b). (6) If a request is made by the court to a legal practitioner under paragraph (5)(a) or (b), it is the duty of the practitioner to comply with the request. (7) Failure to comply with a requirement of, or with a request made under, this section does not affect the validity of a parenting order. (8) Any matter that is required by this section to be included in a parenting order or any explanation that is required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given. 6A Paragraphs 65Q(1)(c) and (d) Omit "section 112AD", substitute "Division 13A". 6B Paragraphs 65U(1)(b) and (c) Omit "section 112AD", substitute "Division 13A". 6C Paragraphs 65V(1)(b) and (c) Omit "section 112AD", substitute "Division 13A". 7 After Division 13 of Part VII Insert: Division 13A—Consequences of failure to comply with orders, and other obligations, that affect children Subdivision A—Preliminary 70NB Definitions In this Division: applied provisions, in relation to a community service order made under paragraph 70NJ(3)(a), means the provisions of the laws of a State or Territory (as modified by regulations made under subsection 70NK(3)), that, because of regulations made under that subsection, apply in relation to the order. appropriate post‑separation parenting program or appropriate program, in relation to a person, means a post‑separation parenting program that is available within a reasonable distance from the person's place of residence or place of work. community service order has the meaning given by subsection 70NK(2A). contravened an order has the meaning given by section 70NC. order under this Act affecting children, in relation to a court, means: (a) a parenting order; or (b) an injunction granted by the court: (i) under section 68B; or (ii) under section 114 in so far as the injunction is for the protection of a child; or (c) an undertaking given to, and accepted by, the court in proceedings under this Act that relate wholly or partly to, or to the making of, a parenting order; or (d) a subpoena issued under the applicable Rules of Court in proceedings under this Act that relate wholly or partly to a parenting order, being a subpoena issued to a party to the proceedings; or (e) a parenting plan registered in a court under section 63E; or (f) a bond entered into: (i) under a parenting order; or (ii) under paragraph 70NJ(3)(b); or (iii) for the purposes of subsection 70NO(5); and includes an order, injunction, plan or bond that: (g) is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (f); and (h) has been registered in the first‑mentioned court. post‑separation parenting program or program means a program that: (a) is designed (including by providing counselling services or by teaching techniques to resolve disputes) to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities; and (b) is included in a list of programs compiled by the Attorney‑General; and (c) consists of lectures, discussions (including group discussions) or other activities. primary order has the meaning given by section 70NF or 70NJ. reasonable excuse for contravening an order includes the meanings given by section 70NE. 70NBA Application of Division Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force. 70NC Meaning of contravened an order A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if: (a) where the person is bound by the order—he or she has: (i) intentionally failed to comply with the order; or (ii) made no reasonable attempt to comply with the order; or (b) otherwise—he or she has: (i) intentionally prevented compliance with the order by a person who is bound by it; or (ii) aided or abetted a contravention of the order by a person who is bound by it. 70ND Requirements taken to be included in certain orders For the purposes of this Division: (a) a residence order is taken to include a requirement that people act in accordance with section 65M in relation to the order; and (b) a contact order is taken to include a requirement that people act in accordance with section 65N in relation to the order; and (c) a specific issues order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order. 70NE Meaning of reasonable excuse for contravening an order (1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (1A), (2), (3) and (4). (1A) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if: (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and (b) the court is satisfied that the respondent ought to be excused in respect of the contravention. (1B) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (1A)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order. (2) A person (the respondent) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if: (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). (3) A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if: (a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and (b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). (4) A person (the respondent) is taken to have had a reasonable excuse for contravening a specific issues order by acting contrary to section 65P if: (a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a). 70NEA Standard of proof of reasonable excuse The standard of proof to be applied in determining, in proceedings under this Division, whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention is proof on the balance of probabilities. Subdivision B—Powers of court where a person contravenes an order under this Act affecting children: stage 2 of parenting compliance regime 70NF Application of Subdivision (1) Subject to subsection (2), this Subdivision applies if: (a) an order under this Act affecting children (the primary order) has been made, whether before or after the commencement of this Division; and (b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and (ba) the person does not prove that he or she had a reasonable excuse for the current contravention; and (c) either of the following applies: (i) no court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order; (ii) a court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order but the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision; and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred. (2) This Subdivision does not apply if, in circumstances mentioned in subparagraph (1)(c)(i), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order. 70NG Powers of court (1) If this Subdivision applies, the court may do any or all of the following: (a) make an order in respect of the person who committed the current contravention, or (subject to subsection (2)) in respect of both that person and another specified person, as follows: (i) directing the person or each person to attend before the provider of a specified appropriate post‑separation parenting program so that the provider can make an initial assessment as to the suitability of the person concerned to attend such a program; (ii) if a person so attending before a provider is assessed by the provider to be suitable to attend such a program or a part of such a program and the provider nominates a particular appropriate program for the person to attend—directing the person to attend that program or that part of that program; (b) make a further parenting order that compensates for contact forgone as a result of the current contravention; (c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order. (1A) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following: (a) whether the primary order was made by consent; (b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner; (c) the length of the period between the making of the primary order and the occurrence of the current contravention; (d) any other matters that the court thinks relevant. (2) The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless: (a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and (b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates. (3) If the court makes an order under paragraph (1)(a) that a person is to attend before the provider of a program for assessment, or is to attend a program, the court must cause the provider of the program to be notified, in accordance with the applicable Rules of Court, of the making of the order. 70NH Duties of provider of program (1) The provider of a program before whom a person attends under an order made under subparagraph 70NG(1)(a)(i) must inform the court, in accordance with the applicable Rules of Court, if the person is unsuitable to attend any program. (2) If a person is ordered to attend a program or a part of a program, the provider of the program must inform the court, in accordance with the applicable Rules of Court, if: (a) the person fails to attend the program or the part of the program; or (b) the provider considers that the person is unsuitable to take any further part in the program or part of the program. 70NI Evidence Evidence of anything said, or of any admission made, by a person attending before the provider of a program for assessment, or attending a program, 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, of a State or of a Territory, or by the consent of the parties, to hear evidence. 70NIA Court may make further orders in relation to attendance at program If it appears to the court that a person has not attended a program or a part of a program that the person was ordered to attend, the court may, by order, give further directions to the person with respect to the person's attending the program. 70NIB List of programs The Attorney‑General: (a) is to compile, for each calendar year, a list of post‑separation parenting programs; and (b) is to publish the list in such manner as he or she determines; and (c) if he or she amends the list during the calendar year for which it is compiled—is to publish a revised list in such manner as he or she determines. Subdivision C—Court to take action in respect of person who contravenes an order: stage 3 of parenting compliance regime 70NJ Powers of court (1) Subject to subsection (2), this Subdivision applies if: (a) an order under this Act affecting children (the primary order) has been made, whether before or after the commencement of this Division; and (b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and (ba) the person does not prove that he or she had a reasonable excuse for the current contravention; and (c) either of the following applies: (i) no court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order but the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order; (ii) a court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary order. Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 140 of the Evidence Act 1995. (2) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision B. (2A) If this Subdivision applies, the court must make, in respect of the person who committed the current contravention, the order or orders available to be made under subsection (3) that it considers to be the most appropriate in the circumstances. (2B) This section applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division. (3) The orders that are available to be made by the court are: (a) if the court is empowered under section 70NK to make a community service order—to make such an order; or (b) to make an order requiring the person to enter into a bond in accordance with section 70NM; or (c) if the person has contravened a parenting order—subject to subsection (5), to make an order varying the order so contravened; or (d) to fine the person not more than 60 penalty units; or (e) subject to subsection (6), to impose a sentence of imprisonment on the person in accordance with section 70NO. (4) If a court varies or discharges under section 70NM a community service order made under paragraph (3)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate. (5) When making an order under paragraph (3)(c) varying a parenting order, the court, in addition to regarding, under section 65E, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account: (a) the person who contravened the parenting order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program; (b) there was no appropriate post‑separation parenting program that the person who contravened the parenting order could attend; (c) because of the behaviour of the person who contravened the parenting order, it was not appropriate, in the court's opinion, for the person to attend a post‑separation parenting program, or a part of such a program; (d) the parenting order was a compensatory parenting order made under paragraph 70NG(1)(b) after the person had contravened a previous order under this Act affecting children. (6) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent. (6A) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of: (a) a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989; or (b) a breach of a child support agreement made under that Act; or (c) a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act). (7) An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event. (8) When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened. 70NK When court is empowered to make a community service order (1) Subject to this section, if: (a) under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to make a community service order in respect of a person convicted of an offence against the law of the State or Territory; and (b) an arrangement under section 70NQ in respect of the State or Territory makes provision for and in relation to the carrying out of a community service order; a court exercising jurisdiction in the State or Territory may, under paragraph 70NJ(3)(a) make a community service order. (2) A community service order made under paragraph 70NJ(3)(a): (a) is to be such that the total number of hours during which the order regulates the conduct of the person in respect of whom it is made does not exceed the maximum period in relation to the State or Territory in which the order is made; and (b) ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order. (2A) A community service order may be an order of any of the following kinds: (a) an order known as: (i) a community service order; or (ii) a work order; or (iii) an attendance centre order; or (iv) an attendance order; or (v) a community based order; (b) an order that is similar to an order referred to in paragraph (a); (c) an order prescribed for the purposes of this paragraph. (3) If a court exercising jurisdiction under section 70NJ in a particular State or Territory makes a community service order under paragraph 70NJ(3)(a), the provisions of the laws of the State or Territory with respect to a community service order that is made under those laws are, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, to apply in relation to the order. (4) If a court proposes to make a community service order under paragraph 70NJ(3)(a), it must, before doing so, explain to the person in respect of whom it is made, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed order; and (b) the consequences that may follow if the person fails to comply with the proposed order or with any requirements made in relation to the order by or under the applied provisions; and (c) if the proposed order may be revoked or varied under the applied provisions—that the proposed order may be so revoked or varied. Note: For applied provisions, see section 70NB. (5) In this section: maximum period, in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory. participating State means a State in relation to which an agreement under section 70NQ is in force. participating Territory means a Territory in relation to which an agreement under section 70NQ is in force. 70NL Variation and discharge of community service orders A community service order made under paragraph 70NJ(3)(a) may be varied or discharged: (a) if the court that made the order is the Family Court or the Federal Magistrates Court—by either of those Courts; or (b) otherwise—by the court that made the order or the Family Court. 70NM Bonds (1) This section provides for bonds that a court may require a person to enter into under paragraph 70NJ(3)(b). (2) A bond is to be for a specified period of up to 2 years. (3) A bond may be: (a) with or without surety; and (b) with or without security. (4) The conditions that may be imposed on a person by a bond include, but are not limited to, conditions of the following kinds: (a) a condition requiring the person to attend upon a family and child counsellor, or a welfare officer, for counselling; (b) a condition requiring the person to be of good behaviour. (5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed requirement; and (b) the consequences that may follow if the person: (i) fails to enter into the bond; or (ii) having entered into the bond—fails to act in accordance with the bond. 70NN Procedure for enforcing community service orders or bonds (1) If a court makes a community service order under paragraph 70NJ(3)(a) in respect of a person, or an order under paragraph 70NJ(3)(b) requiring a person to enter into a bond in accordance with section 70NM, the following provisions have effect. (2) If an information is laid before a magistrate, whether before or after the end of the period for which the community service order or the bond is to operate, or operated, alleging that the person has, without reasonable excuse, contravened the order or bond, the magistrate may: (a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court; or (b) if the information is laid on oath or affirmation and the magistrate thinks that proceedings against the person by summons might not be effective—issue a warrant for the arrest of the person. (3) If: (a) the person is served with a summons issued under subsection (2); and (b) the person fails to attend before the court as required by the summons; the court may, on proof of the service of the summons, issue a warrant for the arrest of the person. (4) If: (a) the person is arrested under a warrant issued under subsection (2), (3) or (6); and (b) the court is not sitting at the time of the arrest; the person is to be brought before a magistrate. (5) The magistrate may: (a) order that the person be released from custody on his or her entering into a bond (with or without surety or security) that he or she will attend before the court on a date, at a time and at a place specified by the magistrate; or (b) direct that the person be kept in custody in accordance with the warrant. (6) If: (a) on entering into a bond under subsection (5), the person is released under an order made by a magistrate under paragraph (5)(a); and (b) the person fails to attend before the court as required by the bond; the court may, on proof of the entering into of the bond, issue a warrant for the arrest of the person. (7) If: (a) in accordance with this section, the person is brought before the court; and (b) the court (whether or not constituted by the judge or magistrate who made the community service order or required the bond to be entered into in accordance with section 70NM) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond; the court may take action under subsection (8). (8) The court may: (a) without prejudice to the continuance of the community service order or the bond entered into in accordance with section 70NM, impose a fine not exceeding 10 penalty units on the person; or (b) revoke the community service order or the bond entered into in accordance with section 70NM and, subject to subsection (9), deal with the person, for the contravention in respect of which the community service order was made or the bond was entered into, in any manner in which the person could have been dealt with for the contravention if: (i) the community service order had not been made or the bond had not been entered into; and (ii) the person was before the court under section 70NJ in respect of the contravention. (9) In dealing with the person as mentioned in paragraph (8)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account: (a) the fact that the community service order was made or the bond was entered into; and (b) anything done under the community service order or pursuant to the bond; and (c) any fine imposed, and any other order made, for or in respect of the contravention. (10) A warrant issued under subsection (2), (3) or (6) in relation to the person authorises: (a) the arrest of the person; and (b) the bringing of the person before the court as soon as practicable after his or her arrest; and (c) the detention of the person in custody until he or she is released by order of the court, or in accordance with subsection (5). 70NO Sentences of imprisonment (1) A sentence of imprisonment imposed on a person under paragraph 70NJ(3)(e) is to be expressed to be: (a) for a specified period of 12 months or less; or (b) for a period ending when the person: (i) complies with the order concerned; or (ii) has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court; whichever happens first. (2) A court must not sentence a person to imprisonment under paragraph 70NJ(3)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NJ(3). (3) If a court sentences a person to imprisonment under paragraph 70NJ(3)(e), the court must: (a) state the reasons why it is satisfied as mentioned in subsection (2); and (b) cause those reasons to be entered in the records of the court. (4) The failure of a court to comply with subsection (3) does not invalidate a sentence. (5) A court, when sentencing a person to imprisonment under paragraph 70NJ(3)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment. (6) A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years. (7) A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned. (8) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NJ(3)(e) for failure to make a payment under a child maintenance order does not affect the person's liability to make the payment. (9) An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Division. 70NP Relationship between Subdivision and other laws (1) This section applies where an act or omission by a person: (a) constitutes a contravention of an order under this Act affecting children; and (b) is also an offence against any law. (2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NJ in respect of the contravention of the order must: (a) adjourn those proceedings until the prosecution has been completed; or (b) dismiss those proceedings. (3) The person may be prosecuted for, and convicted of, the offence. (4) Nothing in this section renders the person liable to be punished twice in respect of the same act or omission. 70NQ Arrangements with States and Territories for carrying out of sentences and orders (1) The Governor‑General may make arrangements with the relevant authority of a State or a Territory for: (a) the exercise of powers, and the performance of functions, by officers of the State or Territory; and (b) the making available of facilities of the State or Territory; for and in relation to the carrying out of orders made, and sentences imposed, under this Subdivision. (2) In this section: officer includes the holder of a judicial office. relevant authority means: (a) in relation to a State—the Governor of the State; and (b) in relation to the Australian Capital Territory—the Chief Minister for the Australian Capital Territory; and (c) in relation to the Northern Territory—the Administrator of the Northern Territory; and (d) in relation to Norfolk Island—the Administrator of Norfolk Island. 70NR Subdivision does not limit operation of section 105 Nothing in this Subdivision is intended to limit the operation of section 105. 8 Section 107 Repeal the section, substitute: 107 People not to be imprisoned for failure to comply with certain orders (1) A person must not be imprisoned or otherwise placed in custody because of a contravention of an order for the payment of money made in a matrimonial cause. (2) This section does not affect the operation of Division 13A of Part VII or the operation of Part XIIIA. 9 After section 109 Insert: 109A Rules of Court relating to enforcement (1) The power of the Judges, or a majority of them, under section 123 to make Rules of Court extends to making Rules of Court for or in relation to, or for or in relation to anything incidental to, the enforcement by the court of: (a) an order under this Act affecting children (within the meaning of Division 13A of Part VII); or (b) an order under this Act (within the meaning of Part XIIIA); or (c) the Child Support (Registration and Collection) Act 1988; or (d) the Child Support (Assessment) Act 1989; and, in particular, for or in relation to any of the specific matters mentioned in subsection (2). (2) The specific matters are as follows: (a) requiring a person to do any one or more of the following: (i) to attend before a court or Registrar and answer questions or produce documents; (ii) to deliver a document or article to, or to a person specified by, a court or Registrar; (iii) to transfer the ownership of specified property to another person; (iv) to give another person possession (including exclusive possession) of specified property; (v) to deliver a specified chattel to another person; (vi) to do, or abstain from doing, any other act; (b) prescribing the practice and procedure to be followed for a hearing before a court or Registrar for the purpose of giving effect to a requirement made as mentioned in subparagraph (a)(i); (c) taking any one or more of the actions mentioned in subsection (3) in respect of a person who: (i) fails to pay the amount of a fine imposed under Division 13A of Part VII or under Part XIIIA; or (ii) fails to pay an amount payable under a bond entered into under Division 13A of Part VII or under Part XIIIA; or (iii) fails to pay under section 66L an amount of maintenance for a person over the age of 18 years; or (iv) fails to pay an amount payable under a registered maintenance liability under the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989; or (v) fails to comply with a requirement made as mentioned in paragraph (a); (d) delegating to a Registrar all or any of the powers conferred on a court under Rules of Court made under this section. (3) Subject to subsection (4), the actions in respect of a person the taking of which may be provided for by Rules of Court as mentioned in paragraph (2)(c) are as follows: (a) the issue of a warrant for the arrest of the person; (b) the issue of a warrant of execution against property of the person; (c) the making of an order authorising the taking of possession of property of the person; (d) the making of an order for the sequestration, and if necessary the sale, of property of the person; (e) the making of an order for the attachment, by garnishment or attachment of earnings, of debts owed to the person; (f) the appointment of a receiver of property of the person. (4) A reference in paragraph (2)(c) to a failure to pay an amount is a reference to any such failure irrespective of the length of the period during which the failure has continued, and includes a reference to a failure to pay part of an amount. (5) In this section: property means real or personal property. Note: Powers to make Rules of Court are also contained in sections 26B and 37A. 10 Heading to Part XIIIA Repeal the heading, substitute: Part XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect children 11 Section 112AA Insert: applicable Rules of Court means: (a) in the case of the Federal Magistrates Court—Rules of Court made under the Federal Magistrates Act 1999 to the extent to which those Rules of Court relate to this Act; or (b) in any other case—Rules of Court made under this Act. 12 Section 112AA (definition of applied provisions) Omit "112AD(2)(d)", substitute "112AD(2)(b)". 13 Section 112AA (definition of contact order) Repeal the definition. 14 Section 112AA (paragraph (a) of the definition of court enforceable agreement) Repeal the paragraph. 15 Section 112AA Insert: maintenance order, in relation to a court, means an order made by the court under this Act that deals with the maintenance of a person other than a child. 16 Section 112AA (definition of order under this Act) Repeal the definition, substitute: order under this Act, in relation to a court, means: (a) an order (however described) made by the court under this Act (other than a parenting order); or (b) an injunction granted by the court under section 114 except in so far as the injunction is for the protection of a child; or (c) an undertaking given to, and accepted by, the court in proceedings under this Act other than proceedings that relate wholly or partly to, or to the making of, a parenting order; or (d) a subpoena issued under the applicable Rules of Court in proceedings under this Act other than a subpoena issued in, and so issued to a party to, proceedings that relate wholly or partly to, or to the making of, a parenting order; or (e) a court enforceable agreement; or (f) a bond: (i) entered into under an order of a court under this Act other than an order under Division 13A of Part VII; or (ii) entered into for the purposes of subsection 112AE(5); and includes an order, injunction, agreement or bond that: (g) is an order under this Act made by another court because of paragraph (a), (b), (e) or (f); and (h) has been registered in the first‑mentioned court. 17 Subsection 112AB(2) Repeal the subsection. 18 Subsection 112AC(1) Omit "subsections (2), (3), (4) and (5)", substitute "subsection (2)". 19 Subsections 112AC(3), (4) and (5) Repeal the subsections. 20 Subsections 112AD(1), (1A), (2) and (2A) Repeal the subsections, substitute: (1) If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances. (1A) The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court. (2) The sanctions that are available to be imposed by the court are: (a) to require the person to enter into a bond in accordance with section 112AF; or (b) to impose a sentence on the person, or make an order directed to the person, in accordance with section 112AG; or (c) to fine the person not more than 60 penalty units; or (d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE. (2A) The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent. 21 Subsections 112AD(3) and (4) Omit "or (1A)". 22 Subsection 112AD(5) Repeal the subsection. 23 Subsections 112AE(1), (2) and (3) Omit "112AD(2)(a)", substitute "112AD(2)(d)". 24 Subsections 112AE(5) and (6) Repeal the subsections, substitute: (5) A court, when sentencing a person to imprisonment under paragraph 112AD(2)(d) may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment. (6) A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years. 25 At the end of section 112AE Add: (8) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order does not affect the person's liability to make the payment. 26 Section 112AF Repeal the section, substitute: 112AF Bonds (1) This section provides for bonds that a court may require a person to enter into under paragraph 112AD(2)(a). (2) A bond is to be for a specified period of up to 2 years. (3) A bond may be: (a) with or without surety; and (b) with or without security. (4) The conditions that may be imposed on a person by a bond include a condition requiring the person to be of good behaviour. (5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed requirement; and (b) the consequences that may follow if the person fails: (i) to enter into the bond; or (ii) having entered into the bond—to act in accordance with the bond. 27 Subsections 112AG(1), (2), (4) and (5) Omit "112AD(2)(d)", substitute "112AD(2)(b)". 28 Subsection 112AH(1) Omit "112AD(2)(d)", substitute "112AD(2)(b)". Note: The heading to section 112AH is altered by omitting "112AD(2)(d)" and substituting "112AD(2)(b)". 29 Subsections 112AH(5) and (6) Omit "recognizance" (wherever occurring), substitute "bond". 30 Subsection 112AM(5) Repeal the subsection. 31 Saving The amendments made by the previous items in this Schedule do not affect any act or thing done by a court under Division 2 of Part XIIIA of the Family Law Act 1975 before the commencement of this Schedule, and any such act or thing continues to have effect according to its terms after that commencement as if those amendments had not been made. 32 Heading to Division 3 of Part XIIIA Repeal the heading, substitute: Part XIIIB—Contempt of court 33 Subsection 112AP(1) Omit "This section", substitute "Subject to subsection (1A), this section". 34 After subsection 112AP(1) Insert: (1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court. 35 At the end of section 112AP Add: (8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person's liability to make the payment. (9) In this section: order under this Act means an order under this Act affecting children within the meaning of Division 13A of Part VII or an order under this Act within the meaning of Part XIIIA. 36 Paragraph 123(1)(p) Repeal the paragraph. 37 Paragraph 123(1)(u) Omit "$5,000", substitute "50 penalty units". Schedule 2—Financial agreements Family Law Act 1975 1 Subsection 4(1) Insert: financial agreement means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante‑nuptial or post‑nuptial settlement to which section 85A applies. 2 Subsection 4(1) (after paragraph (ea) of the definition of matrimonial cause) Insert: (eaa) without limiting any of the preceding paragraphs, proceedings between the parties to a marriage with respect to a financial agreement made by them; or 3 Subsection 4(1) (at the end of paragraphs (a), (b), (c), (ca), (d), (e) and (ea) of the definition of matrimonial cause) Add "or". 4 After section 71 Insert in Part VIII: 71A This Part does not apply to certain matters covered by binding financial agreements This Part does not apply to: (a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or (b) financial resources to which a financial agreement that is binding on the parties to the agreement applies. 5 At the end of subsection 75(2) Add: ; and (p) the terms of any financial agreement that is binding on the parties. 6 Paragraph 79A(1)(a) After "suppression of evidence", insert "(including failure to disclose relevant information)". 6A At the end of section 85A Add: (3) A court cannot make an order under this section in respect of matters that are included in a financial agreement. 7 Before section 86 Insert: 86A Certain maintenance agreements ineffective A maintenance agreement made after the commencement of this section that is not a financial agreement does not have any effect and is not enforceable in any way. 8 After subsection 86(1) Insert: (1A) A maintenance agreement made after the commencement of this subsection cannot be registered. 9 After subsection 87(1) Insert: (1A) Subsection (1) does not apply to a maintenance agreement made after the commencement of this subsection. 10 After Part VIII Insert: Part VIIIA—Financial agreements 90A Definitions In this Part: dealt with includes the meaning given by subsection 90F(2). marriage includes a void marriage. 90B Financial agreements before marriage (1) If: (a) people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, no other agreement (whether made under this section or section 90C or 90D) is in force between the parties with respect to any of those matters; and (b) the agreement is expressed to be made under this section; the agreement is a financial agreement. (2) The matters referred to in paragraph (1)(a) are the following: (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and before the dissolution of the marriage, is to be dealt with; (b) the maintenance of either of them: (i) during the marriage; or (ii) after the dissolution of the marriage; or (iii) both during, and after the dissolution of, the marriage. (3) A financial agreement made as mentioned in subsection (1) may contain matters incidental or ancillary to those mentioned in subsection (2). (4) A financial agreement made as mentioned in subsection (1) may terminate a previous financial agreement made as mentioned in that subsection between the same parties. 90C Financial agreements during marriage (1) If: (a) the parties to a marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, no other agreement (whether made under this section or section 90B or 90D) is in force between the parties with respect to any of those matters; and (b) the agreement is expressed to be made under this section; the agreement is a financial agreement. (2) The matters referred to in paragraph (1)(a) are the following: (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with; (b) the maintenance of either of them: (i) during the marriage; or (ii) after the dissolution of the marriage; or (iii) both during, and after the dissolution of, the marriage. (3) A financial agreement made as mentioned in subsection (1) may contain matters incidental or ancillary to those mentioned in subsection (2). (4) A financial agreement made as mentioned in subsection (1) may terminate a previous financial agreement made as mentioned in that subsection, or a financial agreement made as mentioned in subsection 90B(1), between the same parties. 90D Financial agreements after dissolution of marriage (1) If: (a) after a decree nisi dissolving a marriage is made, the parties to the former marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, no other agreement (whether made under this section or section 90B or 90C) is in force between the parties with respect to any of those matters; and (b) the agreement is expressed to be made under this section; the agreement is a financial agreement. (2) The matters referred to in paragraph (1)(a) are the following: (a) how all or any of the property or financial resources that either or both of them had or acquired during the former marriage is to be dealt with; (b) the maintenance of either of them. (3) A financial agreement made as mentioned in subsection (1) may contain matters incidental or ancillary to those mentioned in subsection (2). (4) A financial agreement made as mentioned in subsection (1) may terminate a previous financial agreement made as mentioned in that subsection, or a financial agreement made as mentioned in subsection 90B(1) or 90C(1), between the same parties. 90E Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children A provision of a financial agreement that relates to the maintenance of a party to the agreement or a child or children is void unless the provision specifies: (a) the party, or the child or children, for whose maintenance provision is made; and (b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be. 90F Certain provisions in agreements (1) No provision of a financial agreement (other than a financial agreement made under section 90B or a financial agreement made under section 90C in the event of the breakdown of a marriage) excludes or limits the power of a court having jurisdiction under this Act to make an order in relation to the maintenance of a party to a marriage if the court is satisfied that, when the agreement was made, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party would have been unable to support himself or herself without an income tested pension, allowance or benefit. (2) To avoid doubt, a provision in an agreement made as mentioned in subsection 90C(1) or 90D(1) that provides for property or financial resources owned by a party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with. 90G When financial agreements are binding (1) A financial agreement is binding on the parties to the agreement if, and only if: (a) the agreement is signed by both parties; and (b) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters: (i) the effect of the agreement on the rights of that party; (ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; (iii) whether or not, at that time, it was prudent for that party to make the agreement; (iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and (c) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and (d) the agreement has not been terminated and has not been set aside by a court; and (e) after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other. Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995. (2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary. 90H Effect of death of party to financial agreement A financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party. 90J Termination of financial agreement (1) The parties to a financial agreement may terminate the agreement only by: (a) including a provision to that effect in another financial agreement as mentioned in subsection 90B(4), 90C(4) or 90D(4); or (b) making a written agreement (a termination agreement) to that effect. (2) A termination agreement is binding on the parties if, and only if: (a) the agreement is signed by both parties to the agreement; and (b) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters: (i) the effect of the agreement on the rights of that party; (ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; (iii) whether or not, at that time, it was prudent for that party to make the agreement; (iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and (c) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and (d) the agreement has not been set aside by a court; and (e) after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other. (3) A court may, on an application by a person who was a party to the financial agreement that has been terminated, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons. Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995. 90K Circumstances in which court may set aside a financial agreement or termination agreement (1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that: (a) the agreement was obtained by fraud (including non‑disclosure of a material matter); or (b) the agreement is void, voidable or unenforceable; or (c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or (d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or (e) in respect of the making of a financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable. (2) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if: (a) the person is a parent of the child with whom the child lives; or (b) the person has a residence order in relation to the child; or (c) the person 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. 90KA Validity, enforceability and effect of financial agreements and termination agreements The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court: (a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and (b) has power to make an o