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House of Representatives Explanatory 1987 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES FAMILY LAW AMENDMENT BILL 1987 EXPLANATORY MEMORANDUM (Circulated by authority of the Honourable Lionel Bowen M.P. Deputy Prime Minister and Attorney-General) 15466/87 Cat. No. 87 51308 I ii I I Printed by Authority by the Commonwealth Government Printer FAMILY LAW AMENDMENT BILL 1987 OUTLINE The Bill amends the Family Law Act 1975 - (a) to implement the references of powers from New South Wales, Victoria, South Australia and Tasmania relating to — • the maintenance of children and the payment of expenses in relation to children or child bearing; and • the custody and guardianship of, and access to, children in those States and to apply the Act as amended to the Territories in which the Act presently applies; (b) in furtherance of the Governments proposals for child support, announced in the Parliament on 24 March 1987, to amend the child maintenance provisions of the Family Law Act to ensure that children receive a proper level of financial support from a reasonable and adequate share of the income, property and financial resources of their parents; (c) to require that an entitlement of the applicant for maintenance to an income tested pension or benefit is not taken into account in awarding spousal and child maintenance; and —2— (d) to make a number of other general amendments to enable the Act to operate more effectively. 2. The implementation of the reference of powers means that the provisions of the Act relating to the custody, guardianship and maintenance of children may now cover ex—nuptial children within the limits of the enlarged legislative power of the Parliament resulting from the referral of powers. Apart from the operation of the Act in the Territories to which it applies, the provisions of the Act as so enlarged may for constitutional reasons extend only to the referring States. In relation to Queensland and Western Australia, the Act will continue to operate as in the past. To accommodate this extended operation of the Act, it has been found convenient to bring together in a single part of the Act - proposed new Part VII — the provisions relating to children. 3. Insofar as the Act will extend to the four referring States and will apply in the Australian Capital Territory, the Northern Territory and Norfolk Island, the provisions relating to children will apply generally to all children, whether children of a marriage or not, and their parents, whether married or not. In relation to the non—referring States, those provisions will be confined, as at present, to children of a marriage and to parties to a marriage. In particular, this means that the procedures under the Act, including the provisions for counselling and conciliation, will be available in disputes concerning ex-nuptial children except in relation to the non—referring States. In these two States, existing procedures under State law will continue to apply and the Family Court of Australia will have no enlarged jurisdiction over ex—nuptial children. 4. Consequent upon the extension of the Act to include all children within the enlarged legislative power arising from the reference of powers, the Bill includes evidentiary —3— provisions relating to parentage. The provisions in Division 7 of new Part VII provide for presumptions of parentage of children. Provision is now made under most State and Territory laws for presumptions of paternity and parentage, but the provisions in Division 7 will provide a statement of relevant presumptions of parentage for the purposes of determination of these issues under the Family Law Act. Division 8 of new Part VII, providing for evidence as to parentage, re—enacts in amended form sections 99 and 99A of the Act. 5. The references of power from the four States also include power to legislate with respect to the payment of expenses in relation to children or child bearing. New Division 9 of new P Part VII provides for a mother who is not married to the father of her child to recover from him childbirth and related expenses. These provisions will replace those laws in the referring States and in the Territories that permit recovery of these expenses. 6. The Bill will give an enlarged jurisdiction to the Family Court of Australia in respect of ex—nuptial children. Proceedings concerning the custody, guardianship and maintenance of these children, and affiliation proceedings, will now be able to be brought in the Family Court within the extended operation of the Family Law Act. However, State courts of summary jurisdiction in the referring States and Territory courts of summary jurisdiction will continue to have jurisdiction in these matters. The jurisdiction of a court of summary jurisdiction will continue to be confined, in custody, guardianship and access matters, to cases where both parties consent to the matter being dealt with in that court. The same will be the case where proceedings concern property of a value greater than the ordinary monetary limit of the jurisdiction of the court under the law of the State or Territory concerned. If there is an objection by either party —4-- to such a matter being dealt with by a magistrate, the case must be transferred to the Family Court or, in the case of the Northern Territory, to the Family Court or the Territory Supreme Court. All maintenance cases, and applications for payment of expenses of child-bearing, may be brought in a court of summary jurisdiction. Financial Impact Statement 7. Implementation of the reference of powers will result in the transfer of work from State welfare Departments and State courts to the counselling, conciliation and judicial services of the Family Court of Australia. The effect will be to transfer substantially all jurisdiction in custody and guardianship cases affecting ex-nuptial children in the referring States from the State courts to the Family Court. There is expected to be some transfer of maintenance cases affecting ex—nuptial children from State magistrates courts to the Family Court. It is difficult to predict the extent of the transferred work, but potentially this could increase the cost of the operation of the Court in a full year by some $3.5m. To the extent to which matters now coming before State courts would come before the Family Court there would be a corresponding decrease in the workload of the State courts. 8. The amendments to be made by the Bill that relate to the Child Support Scheme, taken in isolation from the other legislation to complete Stage 1 of the Scheme, may result in increased litigation in the Family Court in maintenance matters. The extent to which this may occur is, however, impossible to predict, given the number of factors that are likely to influence decisions to litigate maintenance applications. —5— NOTES ON CLAUSES Clause 1 and 2 9. The first two clauses of the Bill provide for the short title and commencement of the legislation. The commencement is on a date to be fixed by Proclamation. ~1ause 3 - Principal Act 10. This clause provides that the Family Law Act 1975 is referred to as the Principal Act. PART II - AMENDMENTS OF FAMILY LAW ACT 1975 Clause 4 — Title 11. This clause extends the long title of the Principal Act because the Act will be extended to cover ex-nuptial children consequent on the references of family law powers by New South Wales, Victoria, South Australia and Tasmania. Clause 5 — Interpretation 12. This clause amends certain definitions in the Principal Act and inserts some new definitions. 13. Paragraph 5(a) amends the definition of ‘financial or custodial proceedings’ consequent upon the bringing together of all provisions concerning proceedings relating to children in new Part VII of the Act. 14. Paragraph 5(b) amends the definition of ‘matrimonial cause’ by omitting paragraphs (cb) to (ch) inclusive. These paragraphs confined the provisions of the Act relating to children to children of a marriage. —6— 15. Paragraph 5(c) makes a consequential amendment to paragraph 4(1)(eb) of the definition of ‘matrimonial cause’. 16. Paragraph 5(d) omits the definitions of ‘adopted’ and ‘guardian’. These definitions have been relocated in new section 60 in new Part VII. 17. Paragraph 5(e) inserts a number of definitions. The definition of ‘child of a marriage’ includes within the term a child who is a child of a marriage by virtue of new section 60A, but excludes a child who has been adopted by a person who is not a party to the marriage. 18. An ‘income tested pension, allowance or benefit’ is defined as a pension, allowance or benefit included in a class of pensions, allowances or benefits prescribed for the purposes of this definition. A pension, benefit or allowance which is so prescribed and to which a person seeking maintenance may be entitled is not to be taken into account when considering the level of maintenance payable in respect of a child or a spouse — see new paragraph 66D(3)(b)(ii) to be inserted by clause 28 and new sub—section 75(3) to be inserted by clause 39. 19. The definition of ‘police officer’ includes members of the Australian Federal Police, and State and Territory police forces. 20. The definition of ‘this Act’ includes the regulations and Rules of Court made under the Act. 21. Paragraph 5(f) omits sub—sections 4(3) and 4(4). Sub—section 4(3) is now taken over into new sub—section 60A(2), to be inserted by clause 28, Sub—section 4(4) is no longer necessary having regard to the definition of “this Act” inserted by paragraph 5(e).
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