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
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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). —7
Clause 6 — Repeal of sections 5 and 5A
22. This clause repeals sections 5 and 5A of the Principal Act which are re-enacted with certain amendments in new sub—section 60A to be inserted by clause 28.
Clause 7 — Transitional
23. This clause amends section 9 of the Principal Act. Section 9 is a transitional provision dealing with the matters that had arisen before the commencement of the Family Law Act 1975. The amendment is consequential upon the re—arrangements of certain sections of the Act. There is no change of substance.
Clause 8 — Repeal of section 10
24. Section 10 of the Principal Act preserves to the States and Territories jurisdiction over children who are State or Territory wards or who are in the care and control of State or Territory welfare authorities. This clause repeals section 10 which is to be re—enacted, with some slight modifications, as section 60H by clause 24.
Clause 9 — 11
25. The amendments made by these clauses are consequential upon the extension of the Act to ex—nuptial children.
Clause 12 — Conciliation counselling
26. This clause makes two amendments to section 16A of the Principal Act. Paragraph (a) omits reference to ‘children of the marriage’ and substitutes ‘their children’ so as to cover all children. —8—
27. Paragraph (b) excludes the operation of the section in respect of children covered by Division 3 of proposed new Part VII where provision is made for counselling in respect of children.
Clause 13 — Provision of certain documents
28. Section 17 of the Principal Act requires the Rules of Court to provide that persons instituting proceedings under the Act are to be given documents setting out the legal and social effects of the proposed proceedings and the counselling and welfare facilities available in the Family Court and elsewhere. This clause amends section 17 to exclude the application of the section to proceedings relating to children. An equivalent provision in respect of such proceedings is to be inserted by new section 61C.
Clause 14 — Original jurisdiction of Family Court
29. Section 31 of the Principal Act defines the original jurisdiction of the Family Court. The amendment made by this clause is consequential upon the proposed insertion of new section 63 by clause 25.
Clause 15 — Delegation of powers to Registrars
30. Paragraph 37A(1)(f)(i) of the Principal Act allows for the making of Rules of Court delegating to Registrars functions in respect of urgent maintenance applications for a party to, or a child of, a marriage. Separate provisions in respect of urgent applications for child maintenance have been provided in proposed sections 66K and 66ZA by the Bill and section 37A is amended to make the necessary change to references to the new sections. —9--
Clause 16 — Jurisdiction in matrimonial c~aiises
31. Section 39 of the Principal Act provides for the exercise of jurisdiction in matrimonial causes. Sub—section 39(4) provides for the necessary connection with Australia to invoke the jurisdiction in respect of proceedings other than for dissolution of marriage. The amendment made by this clause is consequential upon the amendments made to the definition of ‘matrimonial cause’ by clause 5.
Clause 17 — Jurisdiction of Family Court
32. Section 40 of the Principal Act provides that the Family Court of Australia can only exercise jurisdiction in accordance with a Governor—General’s proclamation. The amendment made by this clause is consequential upon the insertion of new section 63 by clause 25.
Clause 18 — Principles to be applied by Coiirf-~
33. Section 43 of the Principal Act sets out the principles to be applied by the Family Court in the exercise of its jurisdiction under the Principal Act or any other Act. This clause makes two amendments to section 43 of the Principal Act. The first is to exclude the reference to other Acts, in view of the extended jurisdiction to be given to the Court by the Family Court of Australia (Additional Jurisdiction and Powers) Bill 1987. The second is to amend paragraph (d) consequential upon the extension of the Act to ex—nuptial children.
Clause 19 — Institution of proceedings
34. Sub—section 44(4) of the Principal Act provides that the Court shall not grant leave to bring proceedings in respect of maintenance and property proceedings outside the time limits — 10 — set in sub—sections 44(3) or 44(3A) of the Principal Act unless it is satisfied that to not grant leave would cause hardship. This clause extends the circumstances in which leave may be granted to cases where an applicant for spousal maintenance would not be able to support herself or himself without an income tested pension, allowance or benefit. This change is consequential upon the changes made to the maintenance provisions of the Act by clauses 39 and 47.
Clause 20 — Transfer of proceedings from court of summary -lurisdiction in certain cases
35. This clause makes two amendments to section 46 of the Principal Act which imposes restrictions on the exercise of jurisdiction by courts of summary jurisdiction. The first is to increase the limit of the jurisdiction that a court of summary jurisdiction has in respect of property proceedings, otherwise than with the consent of a party, from $1,000 to the amount in respect of which that court has jurisdiction in an action for the recovery of debt. The effect is to apply the ordinary monetary limit of jurisdiction of State and Territory courts of summary jurisdiction to the jurisdiction in property matters under the Family Law Act, except where the parties consent to the court exercising that jurisdiction. Where the parties consent, there is no limit on the jurisdiction of courts of summary jurisdiction. The existing limit on the jurisdiction of courts of summary jurisdiction in custody, guardianship and access cases is continued by new section 63D. 4
36. The second is to sub—section 46(3) and is consequential upon the insertion of new sub—section 63D(3) by clause 25. — 11 —
Clause 21 — When decree becomes absolute
37. This clause amends sub—section 55(1) and sub—paragraph 55(5)(a)(ii) of the Principal Act to omit the reference to section 63 and substitute a reference to section 55A. This is a drafting change consequential upon the relocation of section 63.
Clause 22 — New Section 55A — Decree ahsolu~e where chilñren
38. This clause inserts new section 55A. The effect of the new section is that a decree nisi for the dissolution of marriage does not become absolute unless the court is satisfied that there are no children of the marriage under 18 or that, where there are such children, that adequate provision has been, or will be, made for their welfare. Sub—sections (1) and (2) are identical with existing sub—sections 63(1) and (2) of the Principal Act but have been relocated.
39. Sub—section 55A(3) is inserted by the Bill to extend the existing provisions to a child, including an ex-nuptial child of either of the parties, who has been treated by the parties to the marriage as a child of the family at the relevant time. This insertion is consequent upon changes effected by the Bill in the definition of child of a marriage. Except insofar as the Act extends to those States which have referred powers, the Commonwealth does not have power to legislate with respect to the custody, guardianship or maintenance of a child who falls within the definition of child of a marriage by virtue only of the fact that the child was regarded by the parties to a marriage as being a member of the family. The Bill amends the definition of child of a marriage to exclude such children. The legislative power does extend, however, to allow the interests of such a child to be taken into account in determining whether a decree nisi should become absolute. — 12 —
40. Sub—section 55A(4) defines, for the purposes of sub—section (3), the relevant time as the time immediately before which the husband and wife separated or, if they have separated on more than one occasion, the time immediately before they last separated.
Clause 23 — Heading to Part VII
41. This clause omits the existing heading for Part VII of the Principal Act and substitutes in its place the heading 4 ‘Children’.
Clause 24
42. This clause makes a number of changes to existing Part VII of the Act, to bring within the Part most of the provisions of the Act dealing with children.
43. Part VII is separated into a number of Divisions each dealing with a particular subject matter.
~1ewSection 60 — Interpretation
44. New section 60 contains a number of definitions for the purposes of new Part VII.
45. The definition of ‘adopted’ is identical to the existing definition in sub—section 4(1).
46. The definition of ‘artificial conception procedure’ represents a change to a more meaningful expression than the term ‘medical procedure’ currently in sub—section 5A(3) of the Principal Act.
47. A new definition of ‘birth’, which includes ‘still—birth’, is inserted for the purposes of new Division 9 inserted by clause 28. — 13 —
48. A new definition of ‘child’, which includes an adopted child and a still—born child, is inserted.
49. A new definition of ‘child agreement’ is inserted for the purposes of Division 10 inserted by clause 28 of the Bill. Division 10 will enable the registration in courts exercising jurisdiction under new Part VII of child agreements, in which parents may make provision for custody, guardianship, welfare and access matters relating to a child. A child agreement may make provision for other matters and still be able to be registered under Division 10 (for example, the one agreement may be registered as a maintenance agreement under section 86 and as a child agreement under new section 66ZC).
50. A new definition of ‘childbirth maintenance period’ is inserted for the purposes of Division 9 inserted by clause 28 of the Bill. Division 9 is concerned with the payment of child bearing expenses by a father of a child who is not married to the mother of the child. This definition is based upon similar definitions in State legislation and covers the maintenance for, and the expenses of, a mother during a period of 2 months before and 3 months following the birth of a child whether the mother works in paid employment or for a longer period where the mother stops work more than two months before the child is due to be born after being advised by a medical practitioner to stop work for medical reasons related to the pregnancy.
51. A new definition of ‘child welfare law’ is inserted to enable the prescription of State child welfare laws which, pursuant to references of power, have been preserved by the referring States. — 14 —
52. A new definition of ‘child welfare matters’ is inserted for the purpose of the definition of ‘child agreement’, also inserted by clause 20. The definition will ensure that the operation of Division 10 in relation to a ‘child agreement’ is limited to non-financial matters concerning a child dealt with in the agreement.
53. A new definition of ‘education’ is inserted and includes apprenticeship and vocational training. Present sub—section
76(3) of the Principal Act — see new section 66H - makes provision for the payment of maintenance in respect of a child over 18 years undertaking such education.
54. The definition of ‘guardian’ has been relocated from section 4(1) of the Principal Act with a stylistic drafting amendment and also enlarged to include guardianship under the law of a State or Territory.
55. A new definition of ‘medical expenses’ is included for the purposes of new Division 9 inserted by clause 28 of the Bill. This definition is based upon corresponding State legislation in respect of provisions for maintenance and payment of medical expenses relating to the birth of a child.
56. A new definition of ‘medical practitioner’ which covers medical practitioners licensed or registered under State or Territory laws, is inserted for the purposes of new Division 9 inserted by clause 28.
57. The definition of ‘overseas custody order’ has been relocated from existing section 60 of the Principal Act.
58. A new definition of ‘parent’ has been inserted to include an adoptive parent, where the term ‘parent’ is used in relation to a child who has been adopted. — 15 —
59. A new definition of ‘parentage testing procedure’ has been inserted to enable the prescription of medical procedures for purposes of new Division 8 inserted by clause 28.
60. A new definition of ‘step-parent’ has been inserted into the Act on account of the insertion of new section 66G by clause 28 providing for liability for the payment of maintenance by step-parents. The definition ensures that the liability only arises in respect of a step—parent who is or has been married to a parent of the child and treats or has treated the child as a member of the family formed with that parent.
New section 60A — Certain children are children of marriage etc.
61. New section 60A is inserted by the Bill to define certain children of the marriage for the purposes of new Part VII of the Act. This definition includes as a child of a marriage a child adopted since the marriage by the husband and the wife or by either of them with the consent of the other. Correspondingly, 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. The new provision is based upon paragraphs 5(l)(a), (b) and (c) of the Principal Act. The definition also includes, as sub—section 60A(2), the substance of sub—section 4(3) of the Principal Act.
New section 60B — Children born as a result of artificial conception procedures
62. New section 60B deals with the parentage of children born as the result of artificial conception procedures. New sub—section 60B(l) re—enacts the substance of existing sub—section 5A(1) of the Principal Act. The effect of this is — 16 — that where a child is born to a married woman as a result of an artificial conception procedure and either the parties to the marriage consented to the procedure or a prescribed Commonwealth, State or Territory law recognises the child as a child of those parties then whether or not the child is biologically a child of them the child is taken to be their child.
63. New sub—section 60B(2) provides that where a child is born to a woman as a result of an artificial conception procedure and under a prescribed Commonwealth, State or Territory law that child is recognised as a child of the woman then, whether or not that child is a biological child of that woman, the child is taken to be the child of that woman.
64. New sub—section 60B(3) provides that where a child is born to a woman as a result of carrying out an artificial conception procedure and under a prescribed Commonwealth, State or Territory law the child is recognised as a child of a man then, whether or not that child is biologically a child of the man, the child is taken to be child of that man.
65. New sub—section 60B(4) provides that where a person lives with a person of the opposite sex in a bona fide domestic basis although not legally married then any child born to the woman as a result of an artificial conception procedure during the course of that bona fide domestic relationship will be a child of those persons on the same basis as if they were married.
66. New sub—section 60B(5) establishes a presumption, rebuttable on the balance of probabilities, that a person consented to any artificial conception procedure being carried out. — 17 —
New section 60C — Application of Part in relation to void marriages
67. New section 6CC relocates existing sub—section 5(3) of the Principal Act without any amendment other than a change of drafting style. The purpose of the section is to extend the operation of new Part VII to purported marriages that are void.
New section 60D — Welfare of child to be paramount consideration
68. New section 60D provides that in any proceedings under new Part VII, the court shall regard the welfare of the child as the paramount consideration. That provision is contained in paragraph 64(1)(a) of the Principal Act in respect of custody, guardianship or welfare of, or access to a child.
Division 2 — Extension. application and additional operation of Part
New section 60E — Extension and application of Part
New section 60F — Additional application of Part
69. The present provisions of the Principal Act in relation to children are confined to children of a marriage in reliance upon the Commonwealth’s constitutional power in marriage and matrimonial causes. Four States, (New South Wales, Victoria, South Australia and Tasmania) have enacted legislation referring powers to the Commonwealth Parliament in respect of the maintenance of children and the payment of expenses in relation to children and child bearing and the custody and guardianship of, or access to, children. Placitum 51(xxxvii) of the Constitution provides for the Commonwealth to make laws with respect to matters referred by the Parliaments of any — 18 —
State or States but so that the laws extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.
70. The purpose of new Division 2 is to extend the operation of the Principal Act consequent upon the references of power. The scheme of the Division is as follows. New section 60E extends the operation of new Part VII to the referring States and, if Queensland or Western Australia also refer the relevant legislative powers to the Commonwealth or adopt the provisions of Part VII, to those States also. New Part VII is also to apply in and in relation to the Territories, where there are no constitutional limitations on the Commonwealth’s power to legislate with respect to ex—nuptial children. New section 60F will have the effect that the provisions of the Principal Act relating to children will continue to apply in Queensland and Western Australia as at present in reliance upon the constitutional power with respect to marriage and to matrimonial causes.
New section 60G — Additional jurisdiction of courts
71. New section 60G extends the jurisdiction of the Family Court and other courts having jurisdiction under the Family Law Act to children’s matters where the parties to the proceedings are residents of different States, in reliance upon the provisions in section 75(iv) of the Constitution. The purpose of this section is to avoid some of the jurisdictional problems that may arise because the new provisions relating ‘to ex-nuptial children can constitutionally extend only to the referring States. For example, the provision will enable the Family Court to continue to exercise jurisdiction if the parties to the proceedings are residents of different States in respect of a child who is taken from a referring State to a non—referring — 19 —
State and who may therefore fall outside the extended operation of the Act. In such a case the Court could continue to exercise jurisdiction but may be required to apply as the substantive law the law in force in the relevant State.
New section 60H — Child welfare laws not affect-ed
72. The effect of new section 60H, like present section 10 of the Principal Act, is to take a child who is subject of an order under a State child welfare law outside the scope of the Family Law Act while the State order remains in force.
Division 3 — Counselling
New section 61 - Notice seeking court- counselling
73. New section 61 repeats, in respect of proceedings involving children, the substance of section 15 of the Principal Act. It provides for a party to proceedings under new Part VII or for the separate legal representative of a child involved in such proceedings to seek assistance from the counselling service of the Family Court in relation to the welfare of a child.
New section 61A — Court counselling facilities t-~ he made available
74. New section 61A repeats, in respect of proceedings involving children, the substance of sub—section 16(2) of the Principal Act. This provides for the parent of a child or a child to seek the assistance of the counselling services of the Family Court notwithstanding that no proceedings are pending. — 20 —
New section 613 - Conciliation counselling
75. New section 61B repeats, in respect of proceedings involving children, the substance of section 16A of the Principal Act. This requires courts exercising jurisdiction under new Part VII and the legal advisers of parties to action under that Part or of persons considering proceedings under the Part to direct attention to the counselling facilities available in the court. 4 New section 61C - Provision of certain documents
76. New section 61C repeats, in respect of proceedings involving children, the substance of section 17 of the Principal Act which requires the Rules of Court to provide that persons instituting proceedings under the Act are to be given documents setting out the legal and social effects of the proposed proceedings and the counselling and welfare facilities available in the Family Court and elsewhere.
Clause 25
77. Clause 25 repeals section 63 of the Principal Act which has been relocated as new section 55A by clause 22. This clause also inserts new Divisions 4 and 5 in new Part VII.
New section 63 - Jurisdiction of courts under new Part VII
78. The purpose of new section 63 is to confer jurisdiction on those courts which are to exercise jurisdiction in matters under new Part VII. Except that it does not confer jurisdiction on State Supreme Courts or the Supreme Court of the Australian Capital Territory and of Norfolk Island, it follows the pattern of the existing Act in the way in which jurisdiction is conferred. — 21 —
79. New sub—section 63(1) confers jurisdiction on the Family Court, the Supreme Court of the Northern Territory, and each Family Court of a State in matters arising under new Part VII. The only existing Family Court of a State is the Family Court of Western Australia.
80. New sub—section 63(2) invests courts of summary jurisdiction in each State with federal jurisdiction and confers jurisdiction on each court of summary jurisdiction in each Territory in relation to matters arising under new Part VII.
81. New sub—section 63(3) provides that the Governor—General may, by Proclamation, fix a day on and after which proceedings in relating to matters arising under new Part VII may not be instituted in, or transferred to, a court of summary jurisdiction of a State or Territory.
82. New sub-section 63(4) provides that any Proclamation made under sub—section 63(3) may be expressed to apply in relation to proceedings of a specified class or classes or in respect of the institution of proceedings in or the transfer of proceedings to a court of summary jurisdiction in a specified Part of a State or Territory.
83. New sub—section 63(5) provides that a court of summary jurisdiction which is invested with jurisdiction under new Part VII shall not exercise that jurisdiction except in accordance with any Proclamation made under sub—section 63(3).
84. New sub—section 63(6) provides that a Proclamation made by the Governor—General may be revoked on and from a specified day. It also provides that on or from the date specified new Part VII has effect as if the revoked Proclamation had not been made but this is without prejudice to the jurisdiction of courts before the revocation. — 22 —
85. New sub—section 63(7) provides that in respect of the conferral of jurisdiction on a court of a Territory that jurisdiction cannot be exercised unless at least one of the parties to proceedings is ordinarily resident in that Territory.
86. New sub—section 63(8) provides that the jurisdiction conferred on, or invested in, a court includes jurisdiction in relation to any matter arising under a law of a Commonwealth in relation to which proceedings are transferred to that court.
87. New sub—section 63(9) provides that the jurisdiction conferred on, or invested in, a court by new section 63 is additional to any other jurisdiction conferred on, or invested in that court.
New section 63A — Certain proceedings to be instituted only under Part
88. New section 63A provides that, on the commencement of new Part VII, proceedings in respect of matters covered by new Part VII shall not be instituted otherwise than in accordance with new Part VII. 4
New section 63B — Child to be present in Australia etc.
89. The purpose of new section 63B is to establish the necessary jurisdictional connection with a child in respect of 4 which proceedings are brought under the Principal Act. The jurisdictional connection would exist if the child is present in Australia, is an Australian citizen or is ordinarily resident in Australia on the day on which the proceedings are instituted. The jurisdictional connection would also exist if a parent of the child or a party to the proceedings is an Australian citizen, is ordinarily resident in Australia or is — 23 —
present in Australia on the day on which proceedings are instituted. The relevant jurisdictional connection would also exist if the court could exercise jurisdiction under the common law rules of private international law or in accordance with a treaty or arrangement between Australia and another country.
New section 63C — Person who may institute proceedings under Act
90. New sub—section 63C(1) inserts a new provision specifying the persons who may institute proceedings under the Act in respect of a child. Proceedings may be instituted by either or both parents, the child or a person who has an interest in the welfare of the child e.g., a grandparent.
91. New sub—section 63C(2) provides that proceedings in respect of child bearing expenses of mothers may be instituted by the mother.
New section 63D — Transfer of proceedings from court-s of summary jurisdiction in certain cases
92. New section 63D provides for the transfer of contested proceedings in custody, guardianship and access matters from courts of summary jurisdiction to the Family Court, a Family Court of a State or the Supreme Court of the Northern Territory where the parties do not consent to the proceedings being heard and determined in the court of summary jurisdiction.
93. Where there are contested custody, guardianship or access proceedings in a court of summary jurisdiction, the court is required to inform the parties that unless each consents to the court dealing with the matter the proceedings — 24 — must be transferred to the Family Court, a State Family Court
or the Northern Territory Supreme Court — new sub—section 63D(l). Unless the parties consent, the proceedings must be
transferred — new sub-section 63D(2). The court is empowered to make such interim orders as it considers necessary pending final determination by the court to which the proceedings are
transferred — new sub—section 63D(3). If the parties consent to. the matter being dealt with by the court of summary jurisdiction, a party is not entitled, without the leave of the court, subsequently to object to that court dealing with the matter but the court may nevertheless transfer the matter to the Family Court, a State Family Court of the Northern
Territory Supreme Court — new sub—section 63D(4). The court to which proceedings are transferred shall proceed as if the proceedings had been instituted in that court — new sub—section 63D(6). Any failure by a court of summary jurisdiction to comply with the section does not invalidate
any order made in a proceeding — new sub—section 63D(7), but this does not affect the duty of such a court to comply with
the section — new sub—section 63D(8).
Division 5 — Custody and guardianship of children
New section 63E — Custody and guardianship
94. New section 63E relocates the substance of existing provisions in section 60A of the Principal Act. These provisions set out the powers, rights and duties of persons 4 who have the custody or guardianship of children under the Principal Act. The new section extends the provisions of existing section 60A of the Principal Act in relation to ex—nuptial children. — 25 —
New section 63F — Rights of custody and guardianship of children
95. New section 63F re—enacts the substance of existing provisions in section 61 of the Principal Act. The new section provides that, subject to any court order, the parents of a child under 18 are each a guardian of the child and have joint custody of the child. Guardianship, custody and access orders cease when a child turns 18, marries or is adopted by a person who is not the parent of the child. Provision is also made for the operation of an order where the custodial parent dies. The only change is that the new section will extend to ex-nuptial children.
Clause 26 — Powers of court
96. This clause amends section 64 of the Principal Act in a number of ways. Section 64 deals with the powers of the court in proceedings affecting children. Paragraph (a) removes the limitations to a ‘child of a marriage’ in sub—sections 64(1), (1B), and (2) as a consequence upon the extension of the Act to ex—nuptial children.
97. Paragraph (b) omits paragraph 64(i)(a) which has been relocated as new section 60D.
98. Paragraphs (c), (d), (e) and (f) effect consequential drafting changes.
Clause 27 — Separate representation of child
99. This clause amends section 65 of the Principal Act to remove the limitation to children of a marriage as a consequence of the extension of the Act to ex—nuptial children. — 26 —
Clause 28
100. This clause inserts the following new Divisions into Part VII of the Principal Act:
Division 6 — Maintenance of children
Division 7 — Presumptions of parentage
Division 8 — Parentage evidence
Division 9 — Child bearing expenses of mothers Division 10— Child agreements • Division 11— State, Territory and overseas custody orders • Division 12- Enforcement of custody and access orders Division 13— Injunctions Division 14— Miscellaneous
101. New Division 6 provides for child maintenance. The present provisions in the Principal Act concerning the maintenance of children are contained in Part VIII which also deals with property and maintenance proceedings between spouses. A number of provisions in existing Part VIII govern both spousal and child maintenance proceedings. One of the purposes of the Bill is to insert into the Act child 4 maintenance provisions which are separate from the provisions concerning spousal maintenance and property settlement. Some of the provisions concerning child maintenance in Division 6 are new; others are re—enactments of provisions in existing 4 Part VIII. That Part will continue to govern spousal maintenance proceedings and property proceedings.
Section 66A — Objects of Division
102. New section 66A sets out the objects of new Division 6. The principal object of the Division is to ensure that children receive a proper level of financial support from — 27 —
their parents — sub—section 66A(i). The particular objects of the Division include ensuring that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents, and that both parents share equitably in the support of their children — sub-section 66A(2).
Section 66B — Duty of parents to maintain their children
103. New section 66B provides that the parents of a child have the primary duty to maintain the child and that that duty:
is of no lower priority than the duty of the parent to maintain any other child (for example, the child of a second marriage) or to maintain any other person (for example, the spouse of a second marriage);
is to take priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself or any other person or child that the parent has a duty to maintain; and
is not affected either by the duty of any other person (for example, the other natural parent or a step-parent of the child) to maintain the child, or by any entitlement that the child or any other person (for example, the child’s custodian) may have for an income—tested pension, allowance or benefit — 28 —
104. Present section 73 of the Principal Act (which is repealed by clause 37 of the Bill) simply imposes on parents a liability to maintain their children according to the parents’ respective financial resources. The purpose of the change is to express a legislative intention that so far as the resources of the parents allow children shall be properly maintained by their parents.
New section 66C — Approach to be adopted in child maintenance proceedings
105. New section 66C sets out the approach that a court should follow when dealing with an application for child maintenance. The approach is that the court should first 4 consider (taking into account only the matters referred to in new section 66D) the financial support that is necessary for the maintenance of the child. It should then determine (taking into account only the matters referred to in new section 66E) the contribution towards the child’s financial support that should be made by a party or by parties to the proceedings. This sequential approach is in accordance with the decision of the Full Court of the Family Court in Mee v Ferguson (1986) FLC 91—716.
New section 66D — Matters to be taken into account in considering financial support necessary for maintenance of children
106. New sub—section 66D(1) provides that in considering the financial support that is necessary for the maintenance of a child the only matters that the court may take into account are:
the requirement that in proceedings under new Part VII of the Act, the welfare of the child is to be the paramount consideration (new section 60D); — 29 —
the objects of Division 6 (new section 66A);
the proper needs of the child; and
the income, earning capacity, property and financial resources 0-f the child.
107. In considering the proper needs of the child, the court must have regard to the age of the child; the manner in which the child is being and his or her parents expected the child to be educated, and any special needs of the child. The court may also, if it considers it appropriate in the particular case, take notice of any published research findings in relation to the maintenance of children — sub—section 66D(2). It should be noted that in considering the proper needs of the child, the court is not prevented from having regard to other matters — sub—section 66D(4).
108. In considering the income, earning capacity, property and financial resources of the child, the court shall have regard to the capacity of the child to earn or derive income, including income from any assets of, under the control of or held for the benefit of, the child that do not produce, but are capable of producing income — paragraph 66D(3)(a). Again it should be noted that in considering the income etc of a child the court is not prevented from having regard to other matters — sub—section 66D(4).
109. However in considering the income, earning capacity, property and financial resources of the child the court must disregard the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them — sub—paragraph 66D(3)(b)(i). The purpose of this is to ensure that, save in special — 30 — circumstances, the financial support necessary for the maintenance of a child is to be considered without regard to the financial circumstances of any other person, including either parent of the child.
110. The court must also disregard any entitlement of the child or any other person (for example the child’s custodian) to an income tested pension, allowance or benefit — sub—paragraph 66D(3)(b)(ii).
New section 66E — Matters to be taken into account- in determining contribution that should be made by party et-c ill. New sub-section 66E(i) provides that in determining the financial contribution that should be made by a party or by parties to the proceedings towards the financial support of the child the only matters that the court may take into account are:
• the requirement that in proceedings under Part VII of the Act, the welfare of the child is to be the paramount consideration (new section 60D);
• the objects of Division 6 (new section 66A); 4
• the nature of the duty of a parent to maintain his or her children (new section 66B);
• the income, earning capacity, property and financial resources of the party in question; ‘in considering this issue the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of, the party that do
not produce, but are capable of producing, income — sub—section 66E(2); — 31 —
the commitments of the party in question that are necessary to enable the party to support himself or herself or any other child or another person that the party has a duty to maintain;
• the direct and indirect costs incurred by the parent or other person who has the custody of the child in providing care for the child; in considering this issue, the court must have regard to the income and earning capacity foregone by the
parent or other custodian in providing that care — sub—section 66E(3).
112. The court is also required, in determining the contribution that should be made by a party towards the financial support of the child, to consider the capacity of the party to provide maintenance by way of periodic payment before considering that party’s capacity to provide maintenance by way of a lump sum payment or property settlement or by some other method — sub-section 66E(5).
113. It should be noted that, in determining the contribution that a party should make to the financial support of the child, the court must under paragraph 66E(4)(a) disregard the entitlement of the child or of the custodian of the child to an income—tested pension, allowance or benefit. It must also disregard under paragraph 66E(4)(b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child (for example, a step—parent who does not have a duty to maintain that child under new section 66G), or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them. — 32 —
New section 66F — Powers of court in child maintenance proceedings
114. New section 66F provides that, in proceedings in relation to the maintenance of a child, the court may make such order as is proper.
New section 66G — Stec-parents to assist in maintenance of step—children in certain circumstances etc.
115. New sub—section 66G(l) provides that a step—parent of a child has a duty to maintain the child only if:
• the step—parent is a guardian of the child or has the custody of a child under a court order, or
• a court determines that it is proper for the step-parent to have the duty to maintain the child.
116. In determining whether it is proper for a step—parent to have a duty to maintain the child, the court shall take into account only the following matters (sub—section 66G(2)):
• the requirement that in proceedings under Part VII of the Act, the welfare of the child is to be the paramount consideration (new section 60D);
• the objects of Division 6 (new section 66A);
• the nature of the duty of the natural parents to maintain the child (new section 66B);
the length and circumstances of the marriage of the step—parent to the child’s natural parent; — 33 —
the relationship that has existed between the step—parent and the child;
the arrangements that have existed for the maintenance of the child;
any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
117. New sub—section 66G(3) provides that the duty of a step—parent to maintain a child is a secondary duty only; it is subject to the primary duty of the natural parents to maintain the child; and it does not derogate from the primary duty of the natural parents to maintain the child.
118. When the court determines the financial contribution that a step—parent should make towards the maintenance of a child, the court shall under new sub—section 66G(4) take into account the extent to which the primary duty of the natural parents to maintain the child is being fulfilled, as well as:
• the requirement that in proceedings under new Part VII of the Act, the welfare of the child is to be the paramount consideration (new section 60D);
the objects of Division 6 (new section 66A);
• the nature of the duty of the natural parents to maintain the child (new section 66B);
• the matters that are to be taken into account in determining the financial contribution of a parent towards the maintenance of a child (new section 66E) — 34 —
New section 66H — Children who have attained lR years of age
119. New section 66H re—enacts the substance of the provisions of present sub—sections 76(2) and 76(3) concerning the maintenance of children over 18.
120. New sub—sections 66H(l) and (2) provide that a court shall not make an order for the maintenance of a child who has reached 18 or an order for the maintenance of a child that is to extend beyond the day on which the child reaches 18, unless the court is satisfied that maintenance is necessary to enable the child to complete his or her education or because the child is mentally or physically disabled.
121. New sub—section 66H(3) provides that an order for the maintenance of a child ceases to be in force on the day when a child reaches 18, unless the order is expressed to continue in force beyond that day.
New section 66J — General powers of court
122. New sub—section 66J(1) sets out the range of powers that the court may exercise in proceedings for child maintenance. The powers are substantially the same as the court at present 4 exercises under section 80 in child maintenance and other proceedings under Part VIII and will continue to exercise under section 80 in spousal maintenance and property proceedings. The power to order a transfer of property by way 4 of child maintenance is clarified - paragraph 66J(l)(c); new sub—section 66J(2) makes it clear that such an order does not prevent subsequent orders for child maintenance.
123. New sub—section 66J(3) provides for the making of Rules of Court to facilitate the collection and enforcement of child maintenance orders. — 35 —
New section 66K - Urgent maintenance orders
124. New Section 66K empowers the court to make urgent child maintenance orders in the same circumstances in which it can at present make such orders under section 77. The circumstances are that the child is in immediate need of financial assistance and it is not practicable to determine the proceedings immediately. Urgent spousal maintenance orders will continue to be made under section 77.
New sect-ion 66L — Specification in orders of payments etc. for child maintenance purposes
125. New sub—section 66L(l) deals with the case where the court orders child maintenance to be provided wholly or in part by payment of a lump sum or the transfer of property. In such a case the court must express the order to be one to which section 66L applies and must specify:
• the child or children for whose maintenance provision is made by the payment, transfer or settlement; and
the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the child or for each child.
126. New sub—section 66L(2) provides that where such an order does not comply with the requirements of sub-section 66L(1), then any payment or transfer under the order will be taken not to make provision for the maintenance of the child. — 36 —
127. The primary purpose of new section 66L is to enable the income-testing for social security purposes of maintenance received other than by way of periodic sums.
New section 66M — Cessation of orders
128. New section 66M sets out circumstances in which a child maintenance order ceases. These circumstances are — • the death of, the child; • the death of the maintenance payer; • the adoption or marriage of the child. In certain cases, however, a maintenance order made before 25 November 1983 may continue beyond the death of the maintenance payer — see sub—section 66M(3). The new section re—enacts the substance of section 82 of the Principal Act in respect of child maintenance proceedings.
129. The Bill does not affect child maintenance orders in respect of ex—nuptial children previously made under State or
Territory law — sub—section 66M(8).
New section 66N — Modification of maintenanre orders
130. New section 66N empowers a court to vary or discharge a child maintenance order made either under Commonwealth law or under the law of a referring State or of a Territory provided the order is registered in that court — sub—sections 66N(1) and (11).
131. New sub—sections 66N(1)—(4) and (6)—(l0) re—enact the substance of section 83 of the Principal Act in relation to the variation or discharge of a child maintenance order. New sub—section 66N(2)(c) introduces an additional ground on which a child maintenance order may be varied. The new ground for variation is that the amount to be paid under the order (where — 37 —
the order was made by consent) is not proper or adequate. In satisfying itself that the order is not proper or adequate the court must have regard to any payments or transfers of property previously made to or for the benefit of the child by
the person against whom the order was made — sub—section 66N(5)
Division 7 — Presumptions of parentage
132. New Division 7 provides for presumptions of paternity and parentage. The provisions of Division 7 will provide a statement of the relevant presumptions of paternity and parentage for the purpose of determination of these issues under the Principal Act, and will replace the operation for those purposes of the common law presumptions and, in States and Territories with Status of Children legislation (all mainland jurisdictions except Western Australia and the Australian Capital Territory), the statutory presumptions under those laws. Those statutory presumptions vary from jurisdiction to jurisdiction, and Division 7 will ensure that, in the absence of direct evidence, a child will, for the purpose of the determination of issues under the Principal Act, be the child of the same two parents irrespective of the operation of the relevant State or Territory law.
133. The presumptions will assist courts to determine these issues when there is no direct evidence on them before the court. For example, a mother having no direct evidence of the ‘ paternity of the child may apply for maintenance in respect of the child against a man with whom she cohabited in circumstances where the presumption under new section 66Q will apply. If the application is undefended, the court will be able to presume the man is the father of the child and will proceed, if appropriate, to make an order under new section 66F. — 38 —
134. The presumptions will also be relevant in the application of the provisions of Part VII in non—litigious circumstances. For example, under new section 63F if there is no court order for the time being in force, each parent of a child is to be its guardian and under new section 66B the parents of a child will have the primary duty to maintain the child. The presumptions in Division 7 will enable the identification, in the absence of direct evidence, of the persons to whom these responsibilities and duties relate.
135. New sub—section 66P(l) presumes that a child born to a woman during a marriage to which she is party is a child of the marriage. New sub—section 66P(2) presumes that a child born to a woman within 10 months after the termination by death or after the annulment of a purported marriage to which she is a party shall be a child of the marriage. Where a child is born to a woman whose marriage has been terminated by divorce, the child is to be presumed under new sub—section 66P(3) to be a child of the dissolved marriage if the child is born within 10 months after a period of resumed cohabitation by the woman and her former husband of less than 3 months duration. This period of resumed cohabitation may interrupt the 12 months separation period required to establish the ground for divorce under the Principal Act: section 50.
136. These presumptions appear, in substance, in all Australian jurisdictions with Status of Children legislation. They differ, however, in three respects from those under State and Territory laws. First, the presumption in new sub—section 66P(2) extends the State and Territory statutory presumptions to provide that the presumption arises when the child is born within 10 months after a purported marriage, to which the woman is a party, is annulled. Secondly, unlike its counterparts in the States and Territories the presumption in new sub—section 66P(3) only operates in circumstances where — 39 —
the child is born after the woman’s marriage has been terminated by divorce in circumstances where the child was conceived during a resumed period of cohabitation. Except in these circumstances, it is not likely that a child conceived during the 12 months separation period required for the woman’s divorce would be a natural child of the woman and her former husband. Thirdly, in New South Wales, Tasmania and the Northern Territory, the statutory presumptions expressly operate only in relation to a later marriage in the event of a woman remarrying and a child being born within 10 months of the termination of her prior marriage. The necessity for these express limitations do not arise under the new section 66P, as except in the circumstances to which new sub—section 66P(3) applies, the presumption will not operate when the child is conceived during the 12 months separation period required for divorce.
New section 660 — Presumption of paternity arising from cohabitation
137. New section 66Q will presume a child born to a woman who cohabited with a man for at least a six months period including the time 10 njonths before the birth to be a child of the man.
138. This presumption only appears in the New South Wales, Tasmanian and Northern Territory Status of Children legislation. The New South Wales and Northern Territory presumptions differ from the Tasmanian presumption. All three presumptions differ from new section 66Q. The New South Wales and Northern Territory presumptions provide no minimum period for which the cohabitation is to have occurred, except that the cohabitation must have taken place at any time during a 24 week period commencing with the beginning of the 44th week before the birth of the child. The Tasmanian presumption — 40 — requires cohabitation for a period of 12 months. New section 66Q provides a minimum period of cohabitation to distinguish the cohabitation required from very short term cohabitations, but does not require the length of cohabitation necessary for the presumption to arise under Tasmanian law.
New section 66R — Presumption of parentage arising from registration of birth
139. New section 66R will presume a person whose name is entered as a parent of a child on a birth or parentage information register kept under an Australian or relevant overseas law to be a parent of the child. This presumption does not appear in State or Territory Status of Children legislation. However the Registration of Births, Deaths and Marriages Acts and the Evidence Acts of each jurisdiction effectively create the presumption as there is a statutory presumption under those laws that the facts contained in birth registers are prima facie accurate.
New section 66S — Presumptions of oarentaae arising from findings of courts
140. New section 66S will presume a person to be a parent of a child if an Australian or relevant overseas court has found or could reasonably be inferred to have found the person, within his or her lifetime, to be a parent of the child. The findings of the courts may be expressed in the form of an order that a person is a parent of a child (for example, a declaration of paternity or maternity made by the Supreme Court of New South Wales under sections 15 or 16 of the Children (Equality of Status) Act, 1976 (NSW)) or may be an incidental finding (for example, where a court has made an order requiring a person to maintain a child that it could not have made without an incidental finding that the person was a parent of the child). — 41 —
141. The equivalent presumptions under the State or Territory Status of Children legislation are narrower than new section 66S in two respects. First, the presumptions under those laws are only presumptions of paternity, and not of parentage. Secondly, except in South Australia, the presumption arises only in respect of orders made in certain court proceedings in New South Wales, it arises only in respect of findings that a man is the father of an ex—nuptia]. child in maintenance or custody proceedings. In the other jurisdictions with Status of Children legislation (except South Australia), the presumption only arises in respect of findings of this kind in maintenance proceedings under State or Territory laws. The South Australian presumption, while applying only to an ex-nuptial child, arises from findings made during the lifetime of the father by any court of competent jurisdiction. New section 66S is modelled upon the South Australian provision.
142. New section 66S will on its terms presume a person to be a parent of a child if a declaration of paternity or maternity has been made by a State or Territory court under a relevant Status of Children law. Under the State or Territory laws the equivalent presumptions are conclusive, but this is not the case with the determination of parentage issues under the new section.
New section 66T — Presumption of paternity arising from acknowledgements
143. New section 66T will presume a man to be the father of a specified child where the man has, under an Australian or relevant overseas law, executed an instrument acknowledging he is the father of the child. This presumption will apply the equivalent presumptions in all Australian jurisdictions with Status of Children legislation except South Australia, where there is no equivalent presumption. — 42 —
New section 66U — Rebuttal of presumptions etc.
144. New sub—section 66U(1) provides that presumptions under Division 7 will be rebuttable by proof on a balance of probabilities. In the event of a conflict of unrebutted presumptions under Division 7, new sub-section 66U(2) will allow the court to weigh the presumptions as it weighs evidence before it to determine which presumption is more likely to be correct. There is not to be any hierarchy of presumptions of parentage for the purposes of the Family Law Act. Only the New South Wales and Northern Territory Status of Children legislation make provision for the standard of proof for rebuttal of presumptions of parentage and for the resolution of a conflict of these presumptions. Both Acts do 4 so in similar terms to new section 66U.
Division 8 — Parentaae evidence
145. Division 8, providing for evidence as to parentage, re—enacts the substance of sections 99 and 99A of the Principal Act.
New section 66V — Evidence of narentaae 4 146. New section 66V re—enacts section 99 and extends its provisions, to maternity as well as paternity issues. The section empowers the court to make an order requiring any person to give evidence material to the issues. An issue of 4 the maternity of a child may arise when a child has been mistakenly identified in a hospital following birth or when a child has been born as a result of artificial conception procedures but in circumstances where new section 60B will not apply. — 43 —
New section 66W — Medical procedures to determine parentage
147. New section 66W re—enacts the substance of section 99A but in a redrafted form to —
enable the court to order a ‘parentage testing procedure’ to be carried out in relation to a person rather than, as at present, enabling the court to direct persons to submit to ‘prescribed
medical procedures’ - new sub—section 66W(1). The definition of ‘parentage testing procedure’ in new section 60 will require the specification of the relevant procedures by regulation;
clarify the power of the court under paragraph 99A(l)(a) to give necessary directions. New paragraph 66W(4)(a) will give the court power to make orders to enable parentage testing procedures to be carried out and to make those procedures more effective or reliable;
include a regulation making power to cover matters relating to the carrying out of parentage testing
procedures and the preparation of reports - new sub—section 66W(9). This power will enable the regulations to be made concerning a range of matters necessary for the effective operation of new section 66W (for example, identification of persons, chain of evidence requirements relating to bodily samples to be collected in parentage testing procedures, preparation of reports to the court).
remove the requirement in sub-section 99A(7) that a report has to be made by a person with prescribed
qualifications — new sub—section 66W(lO). The — 44 —
- regulations will identify particular persons who may, and particular laboratories which may, carry out parentage testing procedures and prepare reports to the court. This will provide more effective quality control concerning these procedures than the requirements in sub—section 99A(7)
Division 9 — Child bearing expenses
148. New Division 9 provides for a mother who is not married to the father of her child to recover from him childbirth and related expenses. These expenses are now generally presently recoverable under the Maintenance Acts and related legislation of the States and Territories.
New section 66X - Father liable to contribute towards maintenance and expenses of mother
149. New section 66X defines the liability of a father of a child who is not married to the mother of the child to make proper contribution towards -
the maintenance of the mother during the later stages of the confinement and for three months after birth (see definition of ‘childbirth maintenance periods in new section 60); I the reasonable medical expenses in relation to the pregnancy and the birth (see definition of ‘medical expenses’ in new section 60);
the funeral expenses of the mother or child in the event of death. — 45 —
New section 66Y — Matters to be taken into account in proceedings under Division
150. New section 66Y specifies the matters the court shall take into account in determining the contribution that should be made by fathers to childbirth and related expenses under Division 9. Those matters are the same matters that the court is required to take into account in child maintenance matters under new paragraphs 66E(l)(a), (b) and (d), new sub-sections 66E(2) and paragraph 66E(4)(a).
New section 66Z — Powers of court in proceedings under Division
151. New sub-section 66Z(l) empowers the court to make such order in relation to the mother of a child as it thinks proper.
152. New sub-section 66Z(2) empowers the court to make a range of orders which generally correspond to the orders it may make in spousal maintenance matters under section 80 of the Principal Act.
153. New sub-section 66Z(3) provides a Rule making power for the enforcement of orders made under Division 9 and the collection of moneys payable under them.
New Section 66ZA — Uruent orders
154. New section 66ZA enables the court to make urgent orders under Division 9 pending the disposal of the hearing of proceedings for such an order. This provision is in similar terms to section 77 of the Principal Act in relation to spousal maintenance and new section 66K in relation to child maintenance. — 46 —
New section 66ZB — Time limit for institution of proceedings
155. New section 66ZB provides that proceedings under Division 9 may be instituted at any time during the pregnancy of the mother, or within 12 months after the birth of the child. After that time, proceedings may be commenced by leave of the court if it is satisfied that refusal to grant leave would cause hardship.
Division 10 — Child Agreements
156. New Division 10 provides for the registration in courts under new Part VII of child agreements providing for the custody, guardianship, welfare of, or access to, a child. The provisions of new Division 10 will enable parents who agree On these matters to register a child agreement in a court with the result that the registered agreement will have effect, for enforcement and other purposes, as an order of the court. At present parents wishing to formalize agreements on these matters must apply to the court for a consent order, involving expense related to the preparation of the application and supporting affidavits with the risk that, in approaching the coi~rt to take proceedings to so formalize the agreement, litigation may ensue.
New section 66ZC — Registration of child aareements
157. New section 66ZC provides that child agreements (see definition of ‘child agreement’ and ‘child welfare matters’ in new section 60) may be registered, as prescribed by the Rules of Court, in a court having jurisdiction under new Part VII. — 47 —
New section 66ZD — Child welfare provisions of registered child agreements
158. New sub—section 66ZD(1) provides that an effect of registration of a child agreement is that a party to the agreement may not institute proceedings to seek an order under section 64 in relation to the matters to which the agreement relates. The provision will not prevent other persons so instituting proceedings (for example, if a mother having sole guardianship and custody of a child agrees to give guardianship and custody to the child’s father, new sub—section 66ZD(1) will not preclude a grandparent of the child from applying for an order for custody or guardianship under section 64).
159. New sub—section 66ZD(2) provides that a court will have a power to vary a registered child agreement if it considers the welfare of the child requires variation.
160. New sub—sections 66ZD(3) and (4) provide that further effects of registration of a child agreement are —
that its provisions relating to the custody, guardianship and welfare of, and access to, the child operate as if it is an order of the court in which it is registered (for example, the provisions of new section 63F apply in relation to those matters dealt with in the agreement); and
if the court considers it would not be contrary to the best interests of the child, the agreement may be enforced as if it is an order of that court (for example, a warrant for the recovery of the child may issue under sub—section 64(9) or (10), and the — 48 —
provisions of section 70 and 70A providing for penalty and criminal sanctions in relation to acts inconsistent with custody, guardianship and access matters in the agreement will apply).
161. New sub—section 66ZD(5) ensures that in exercising its powers of variation under the section, the court is to have regard to the matters to be taken into account in proceedings with respect to the custody, guardianship or welfare of, or access to, a child.
New section 66ZE — Setting aside of registered child agreements 4 162. New sub—section 66ZE(l) provides that the registration of a child agreement may be set aside only if one of the alternative grounds in paragraph 66ZE(l)(a) to (c) apply. New sub—section 66ZE(2) is in similar terms to new sub—section 66ZD(5) and will apply where an application is before the court to set aside a registered child agreement on the ground specified in paragraph 66ZE(1)(c).
Clause 29 — Registration of State and Territory custody orders I 163. Section 67 of the Principal Act provides for the registration of interstate orders for custody of ex—nuptial children. Section 67 is being amended to provide for registration of custody orders in respect of all children made 4 under a law of a State or Territory.
164. Paragraph (a) of this clause defines ‘custody order’ as a custody or access order made in respect of a child under State or Territory law. — 49 —
165. Paragraph (a) also inserts new sub—section 67(1A) providing for Rules of Court to be made to allow for a scheme of registration of custody orders (as defined) made under a law of a prescribed State or Territory. It is intended that the referring States and the Territories to which the Principal Act as amended will apply, will be prescribed. Orders so registered will have the same force and effect as if made under the Principal Act — sub-section 67(3). New sub—section 67(lA) is of similar effect to existing section 68 which allows for a scheme of registration of overseas custody orders.
166. Paragraph (b) of this clause makes a drafting amendment to sub—section 67(3) of the Principal Act.
Clause 30 — Overseas custody orders
167. This clause makes drafting amendments to sub—sections 68(2) and (6) of the Principal Act consequential upon bringing the provisions relating to children into the one Part of the Act.
Clause 31 — Heading
168. This clause inserts before section 70 of the Principal
Act the heading — Division 12, Enforcement of custody and access orders.
Clause 32 — Interfering with child subject to custody order
169. This clause makes a number of amendments to section 70 of the Principal Act. Paragraph (a) of the clause makes drafting changes to sub—sections 70(1), (2), (3), (4) and (6) as a consequence upon bringing the provisions relating to children into new Part VII of the Act. — 50 —
170. Paragraph (b) of this clause amends sub—sections 70(1), (2) and (3) by removing restriction of its operation to children of a marriage and extending it to all children as a consequence of the extension of the Act to ex—nuptial children.
Clause 33 — Certain children not to be taken out of Australia
171. This clause makes a number of amendments to section 70A of the Principal Act. Paragraph (a) of the clause omits from sub—sections 70A(1) and (2) the phrase “including ex-nuptial children” to extend the operation of the sections to all children as a consequence of the extension of the Act to ex-nuptial children.
172. Paragraph (b) of the clause makes drafting amendments to paragraphs 70A(1)(b) and (2)(b) as a consequence of bringing the provisions relating to children into the one Part of the Act.
Clause 34 — Obligation of owners of vessels etc.
173. This clause makes a number of amendments to section 70B of the Principal Act. Paragraph (a) of this clause omits from paragraphs 70B(1)(a) and (2)(a) the phrase “including an ex—nuptial child” so as to extend the operation of the provision to all children as a consequence of the extension of the Act to ex-nuptial children.
174. Paragraph (b) makes drafting changes to paragraphs 70B(1)(d) and (2)(d) as a consequence of bringing the provisions relating to children into the one Part of the Act. — 51 —
Clause 35 — Heading
175. This clause inserts the heading ‘Division 13 — Injunctions’ immediately after section 70B of the Principal Act.
Section 70C — Injunctions
176. Clause 35 also inserts a new section 7CC providing for injunctions in children’s matters. The power to grant injunctions in respect of children’s matters is currently in section 114 of the Principal Act. New sub—section 70C(1) is identical with section 114 insofar as it affects children and is being relocated as a consequence of bringing the provisions relating to children into the one Part of the Act.
177. New sub—sections 70C(2) and (3) relocate, for the purposes of children’s proceedings, the relevant provision of section 114(3) of the Principal Act. A drafting change has been made to split the equivalent of 114(3) into two sub—sections.
178. New sub—section 70C(4) applies the provisions of section 114(4), (5) and (6) relating for punishment for non—compliance with injunctive orders to orders made under the new section 70C.
Section 70D — Powers of arrest
179. The clause inserts a new section 70D dealing with the powers of arrest in respect of children’s matters. — 52 —
180. New sub—sections 70D(l) and (2) relocate the existing provisions of sub—section ll4AA(l) of the Principal Act insofar as they relate to children as a consequence of bringing the provisions relating to children into the one Part of the Act. A drafting change has been made to split the equivalent of sub—section 114AA(1) into two sub—sections.
181. New sub—section 70D(3) relocates, in respect of children, the existing provisions of sub—section 114AA(2) of the Principal Act as a consequence of bringing the provisions relating to children into the one Part of the Act.
182. Sub—sections 114AA(3), (4) and (5) prescribe certain procedures to be followed in exercising the powers of arrest under section 114AA of the Principal Act. New sub—section 70D(4) applies these provisions to the exercise of the power of arrest under new section 70D.
183. New sub—section 70D(5) relocates, in respect of children, the existing provisions of section 114AA(6) of the Principal Act with a minor drafting change.
Heading to Division 4 184. Clause 35 also provides a new heading “Division 14 — Miscellaneous” immediately after new section 70D.
Section 70E 4 Institution of maintenance proceedings by authorised authority or person
185. Clause 35 also inserts a new section 70E enabling the making of regulations to authorise prescribed authorities of the Commonwealth or of a State or Territory to institute and prosecute proceedings in relation to the maintenance of a — 53 —
child on behalf of that child. This repeats the substance of section 89A of the Principal Act insofar as it relates to children.
Clause 36 — Heading
186. This clause inserts a new heading to Part VIII of the Principal Act to more accurately describe the provisions now dealt with under that Part of the Act.
Clause 37 — Repeal of section 73
187. This clause repeals section 73 of the Principal Act, which imposes a liability on parents to maintain their children. Section 73 is repealed as a consequence of the insertion of new section 66B by clause 28.
Clause 38 — Powers of court in spousal maintenance proceedings
188. Existing section 74 of the Principal Act empowers a court to make orders for the maintenance of a party to a marriage or of a child of a marriage. This clause amends section 74 to limit its application to spousal maintenance orders. This amendment is consequential on the insertion of new section 66F by clause 28; the new section will provide for the making of child maintenance orders.
Clause 39 — Matters to be taken into consideration in relation to snousal maintenance
189. This clause amends section 75 of the Principal Act, which at present sets out the matters that are to be taken into account in the making of spousal and child maintenance orders. As a result of the insertion by clause 28 of new — 54 —
sections 66A - 66N which deal separately with child maintenance, section 75 will in the future apply only to spousal maintenance proceedings.
190. Present paragraph 75(2)(d) provides that one of the matters which the court must take into account in assessing maintenance is ‘the financial needs and obligations of each of the parties’. Sub—clause 39(a) amends paragraph 75(2)(d) to refer to the commitments of each of the parties that are necessary to enable the party to support himself or herself and any child or another person that the party has a duty to maintain. This amendment is made to maintain consistency with the criteria for child maintenance.
191. Present paragraph 75(2)(f) allows a court to take into account in maintenance proceedings the eligibility of either party for a pension allowance or benefit. Sub—clause 39(b) amends paragraph 75(2)(f) to make it subject to new sub—section 75(3).
192. New sub—section 75(3) which is inserted by sub—clause 39(c), provides that in future proceedings for spousal maintenance the court must disregard the eligibility for an income-tested pension of the applicant for maintenance. It should be noted that new sections 66B, 66D and 66E to be inserted by clause 28 will achieve the same end in child maintenance proceedings.
Clause 40 — Repeal of section 76
193. This clause repeals section 76 of the Principal Act which relates to child maintenance proceedings. The repeal of section 76 is necessary on account of the insertion by clause 28 of new Division 6 of Part VII dealing with child maintenance. — 55 —
Clause 41 — Uroent s~ousal maintenance cases
194. Section 77 at present provides for the making of urgent maintenance orders for a party to a marriage or for a child of a marriage. This clause amends section 77 to limit its application to urgent maintenance orders for a party to a marriage. urgent maintenance orders for children will be provided for by new section 66K.
Clause 42
195. This clause inserts into the Act a new section 77A, the primary purpose of which is to enable the income—testing for social security purposes of maintenance received other than by way of periodic sums.
196. New sub—section 77A(l) requires that where a court orders the payment of a lump sum or the transfer of property for the purposeof making provision for the maintenance of a party to a marriage, the court must express the order to be one to which section 77A applies. The court must also specify the portion of the payment, or the value of the portion of the property, that is attributable to the provision of maintenance for the party to the marriage.
197. New sub-section 77A(2) provides that where such an order does not comply with the requirements of sub-section 77A(1), then any payment or transfer under the order will be taken not to make provision for the maintenance of the party to the marriage — 56 —
Clause 43 — General powers of Court
198. Section 80 of the Principal Act sets out the range of powers that the court may at present exercise in property settlement, spousal maintenance or child maintenance proceedings.
199. Sub—clause 43(a) inserts new paragraph 80(ba), the purpose of which is to clarify the power of the court to order a transfer of property by way of spousal maintenance. New sub—section 80(2), inserted by sub—clause 43(c), makes it clear that such an order does not prevent subsequent orders for spousal maintenance.
200. Existing paragraph 80(g) empowers a court to make an order for the payment of child maintenance to a specified person or public authority. As a result of the insertion by clause 28 of separate provisions governing child maintenance (Division 6 of Part VII), section 80 will no longer apply to child maintenance proceedings. Accordingly, sub—clause 43(b) omits paragraph 80(g). The power now contained in paragraph 80(g) will in future be provided by new paragraph 66J(f).
201. A new sub—sectiort 80(3), which provides for the making of Rules of Court to facilitate the collection and enforcement of spousal maintenance orders, is also inserted by sub-clause 43(c).
Clause 44 — Cessation of spousal maintenance orders
202. Section 82 at present provides for the cessation of bgth spousal and child maintenance orders. As a result of the insertion by clause 28 of separate provisions governing child maintenance (Division 6 of Part VII), section 82 will no longer apply to child maintenance orders. This clause amends section 82 to achieve this end. — 57 —
Clause 45 — Modification of s~ousal maintenance orders
203. Section 83 at present provides for the discharge or variation of both spousal and child maintenance orders. As a result of the insertion by clause 28 of the new separate provisions concerning child maintenance in Division 6 of Part VII, section 83 will no longer apply to child maintenance orders. Sub—clauses 45(a) and (e) amend sub—sections 83(1) and (7) to achieve this end.
204. Sub—clause 45(c) inserts a new paragraph 83(2)(ba) which provides an additional ground on which a spousal maintenance order may be varied. The new ground for variation is that the amount to be paid under the order (where the order was made by consent) is not proper or adequate. In satisfying itself that the order is not proper or adequate the court must have regard to any payments or transfers of property previously made to or for the benefit of the party to the marriage by the other party — new sub-section 83(5A) to be inserted by sub—clause 45(d).
205. New sub-clause 45(b) makes a drafting amendment necessary on account of the amendment made by sub-clause 45(c).
Clause 46 — Registered maintenance agreements
206. Existing sub—section 86(2) provides that, where a maintenance agreement is registered in a court under section 86, the court may exercise the powers conferred on it by s.83 in relation to the variation or discharge of maintenance orders, in relation to the terms of the agreement as if the agreement were an order of the court. This clause repeals sub—section 86(2) and inserts in its place new sub—sections 86(2) and 86(2A). The new sub-sections are necessary on account of the insertion by clause 28 of new section 66N under — 58 — which child maintenance orders will now be varied. The new sub—sections provide that where the agreement makes provision for the maintenance of a party to a marriage or a child of a marriage, those provisions may be varied by a court under section 83 in the case of a party to a marriage, or section 66N in the case of a child of a marriage, as if the agreement were an order made by consent.
Clause 47 - Operation of maintenance agreements entered into in substitution for rights under the Act
207. This clause —
inserts new sub—sections 87(4A), (4B) and (4C); and
repeals sub—sections 87(13) and (14).
208. New sub-section 87(4A) provides that the approval of a maintenance agreement under section 87 does not prevent a subsequent application for maintenance by a party to the agreement if the court is satisfied that, at the time the agreement was approved, the circumstances of the party were such that, having regard to 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. This new sub-section will be a qualification to the general rule contained in paragraph 87 4(b) of the Principal Act that where a maintenance agreement is approved under section 87, the court may not make orders with respect to the financial matters dealt with by the agreement unless the approval of the agreement is revoked. — 59 —
209. New sub—section 87(4B) makes it clear that, in the circumstances in which new sub—section 87(4A) applies, a party to a~marriage who is a party to the agreement approved under section 87 may apply to a court under section 83 for variation of the maintenance provisions in the agreement as if the agreement were an order made by consent.
210. New sub—section 87(4C) provides that the approval of a maintenance agreement under section 87 does not exclude or limit the power of a court having jurisdiction under Part VII to make any order under that Part in relation to a child of the marriage and, where the agreement makes provision for the maintenance of a child of the marriage, new section 66N appliesi~i relation to the variation of the agreement, as if the agreement were an order made by consent.
211. Existing sub—sections 87(13) and (14) permit the court to make a maintenance order for a child where the court is satisfied that the arrangements for the child made in a maintenance agreement approved under section 87 are no longer proper. Provisions concerning the maintenance of a child in an agreement approved under section 87 will in the future be variable under new section 66N. New section 66N contains a range of grounds upon which maintenance orders or agreements can be varied including the ground for variation now provided in sub—sections 87(13) and (14).
Clause 48 - -
212-. This -clause inserts new section 87A, the primary purpose of which is to enable the income—testing for social security purposes of maintenance received other than by way of periodic sums. — 60 —
213. New sub-section 87A(l) provides that where a maintenance agreement (whether or not registered under section 86 or approved under section 87) requires the payment of a lump sum, or the transfer of property and one of the purposes of the payment or transfer is to make provision for the maintenance of a party to a marriage or a child or children of the marriage, then the agreement must state that it is one to which section 87A applies. The agreement must also specify —
the party, child or children for whose maintenance provision is made by the payment or transfer; and
the portion •of the payment, or the value of the portion of the property, attributable to the provision of maintenance for that party or child or children as the case may be.
214. New sub-section 87A provides that where a maintenance agreement does not comply with sub-section 87A(1), then any payment or transfer under the agreement will be taken not to make provision for the maintenance of a party to the relevant marriage or of a child of the marriage.
Clause 49 — Institution of spousal maintenance proceedings by 4 authority or nerson
215. This clause amends section 89A of the Principal Act, which provides for the institution of child or spousal 4 maintenance proceedings by a Commonwealth, State or Territory officer, to confine its application to spousal maintenance.
An equivalent provision in relation to child maintenance - new section 70E — is inserted by clause 35. — 61 —
Clause 50 — Certain instruments not liable to duty
216. This clause amends section 90 of the Principal Act, which provides that instruments executed for the purposes of orders and certain maintenance agreements under Part VIII are not liable to Commonwealth, State or Territory duties or charges, to extend that protection to instruments executed for the purpose of child maintenance orders under new Part VII.
Clause 51 — Interventions b~other persons
217. The clause replaces existing sub—section 92(1A) of the Principal Act in a revised drafting form to take account of the provisions of new section 66W relating to parentage. P There is no substantive change to the provision.
Clause 52 — Proceedings in absence of parties
218. This clause inserts new sub—sections 98A(3) and (4) in the Principal Act. Section 98A makes provision for the making of Rules of Court to hear proceedings for dissolution of marriage in the absence of the parties. Sub—paragraph 98A(1)(b) provides that the Rules do not apply where there are children of a marriage who have not attained the age of 18 years. New sub—section 98A(3) defines ‘child of a marriage’ for the purposes of that paragraph in terms identical to new section 55A(3).
219. New sub—section 98A(4) defines, for the purposes of new sub—section 98A(3), relevant time in relation to the separation of the parties. It is identical in operation to new sub—section 55A(4). — 62 —
Clause 53 — Repeal
220. This clause repeals sections 99 and 99A of the Principal
Act as a consequence of the insertion of new Division 8 — Evidence of parentage. These provisions were inserted in the Act in 1983 but were not brought into operation because of practical difficulties.
Clause 54 — Proof of Birth. Death or Marriage
221. This clause amends section 102 of the Principal Act, which provides that original or certified copies of birth, death or marriage records may be received in evidence, to include new paragraph 102(b) relating to parentage 4 information. This is a consequential amendment as a result of the insertion of new section 66R by clause 28.
Clause 55 - Persons not to be imprisoned for failure to comply with certain orders
222. This clause amends section 107 of the Principal Act, which provides that no person shall be imprisoned for contravention of maintenance orders, to include in new paragraph 107(l)(b) a reference to orders made in proceedings 4 under new Part VII. Child maintenance proceedings, amongst other things, have been removed from the definition of “matrimonial cause” by clause 5 and this amendment to sub—section 107(1) is consequential on that amendment.
223. The words in sub—section 107(1) following ‘matrimonial cause’ and sub—section 107(2) of the Principal Act are to be omitted. Those provisions are spent, having a practical operation only at the time of the commencement of the Principal Act. — 63 —
Clause 56 — Inter—State enforcement of child hearing expenses orders
224. This clause omits sub—section 109(1) which sets out the types of expenses in relation to childbearing that may be the subject of an order by a State court. Provision for those types of expenses is now being made in new Division 9 of new Part VII in relation to ex—nuptial children within the scope of the referred powers. This will have operation in relation to orders made by Queensland and Western Australian courts. The clause inserts a new sub—section 109(1) which recognises for enforcement purposes orders made by State courts of the same nature as is provided by new Division 9.
Clause 57 — Overseas enforcement of maintenance orders
225. This clause makes a number of amendments to section 110 of the Principal Act consequential upon the amendments to section 109 made by clause 56.
Clause 58 — Injunctions
226. This clause makes two drafting amendments to section 114 of the Principal Act. Paragrahs (a) of this clause removes reference in paragraph 1l4(1)(a) of a ‘child of a marriage’ as a consequence of the insertion of new section 70C by clause 35.
227. Paragraph (b) of this clause omits words from the end of paragraph ll4(l)(c) as a consequence of the insertion of the definition of ‘education’ in new section 60.
Clause 59 — Powers of arrest
228. This clause amends section 114AA of the Principal Act by omitting the definition ‘police officer’ in sub—section (7) as a consequence of including a definition of that term in sub—section 4(1) of the Principal Act. — 64 —
Clause 60 — Operation of State and Territory laws
229. This clause effects drafting amendments to section 114AB of the Principal Act as a consequence of the insertion of new sections 70C and section 70D by clause 35.
Clause 61 — Offers of settlement
230. This clause amends sub—section 117C(1) of the Principal Act, which provides a procedure for the filing of offers of settlement in proceedings relating to financial matters, as a consequence of the insertion into new Part VII of the Principal Act of Divisions 6 and 9 relating to child maintenance and recovery of child bearing expenses. -
Clause 62 — Regulations
231. This clause amends paragraph l25(l)(f) to include a reference to Part VII to enable a prescribed authority to institute proceedings for the enforcement of maintenance orders in respect of children to be made under new Part VII of the Act.
Clause 63 — Formal amendments
232. This clause inserts a Schedule of formal amendments to the Principal Act. These amendments are all of a drafting nature.
Part III — Transitional. and application provisions
Clause 64 — Application of relief from time limits applying in relation to institution of- certain proceedings - -
233. Section 44(4) of the Principal Act is -being amended -by clause 19 to enable the court to extend the time limits within — 65 —
which an application for maintenance-can be brought where the applicant for’ maintenance would be unable to support him or herself without an income tested pension, allowance or benefit. This clause ensures that there is no retrospectivity in respect of the application of the amended provision.
Clause 65 — Transitional provision in relation to section ~6 of the Family Law Act
234. Section 46 of the Principal Act is being amended by both the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Bill 1987 and clause 20 of this Bill. This clause delays the coming into operation of the amendments made to section 46 by this Bill until the amendments made by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Bill come into operation. Both Acts are to be proclaimed-to commence operation. It is possible that the Proclamation in relation to this Bill may precede the Proclamation in respect of theAdditional Jurisdiction Bill.
Clause 66 — Application of certain provisions in relatign to children born before commencement of Act
235. This clause clarifies that provisions relating to questions of the parentage of a child being provided by this Bill apply in relation to children whenever they were born, and not just to children born after the commencement of this Bill.
Clause 67 -— Application of specification regiuir~ments in orders and agreements
236. This clause makes it clear that new sections 66L, 77A and 87A, which require the specification of any maintenance provision in the payment of a lump sum or in the transfer of — 66 — property under any order or maintenance agreement, only apply to orders made or agreements entered into after the commencement of this Bill.
clause ~$ — Savings provisions in relation to injunctions
237. This clause clarifies that, in respect of injunctive proceedings in respect of children under section 114 or powers of arrest in respect of matters affecting children under ll4AA instituted before the commencement of new section 70C and section 70D, those proceedings will continue as if the new sections had not been passed.
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