Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Changes to approval of organisations
1 Subsection 4(1) (definition of voluntary organization )
Repeal the definition.
2 Subsection 13A(1)
Repeal the subsection.
3 Subsection 13A(2)
Omit "the organisation" (first occurring), substitute "an organisation".
4 Paragraph 13A2(b)
Repeal the paragraph, substitute:
(b) the organisation's activities include, or will include, family and child counselling.
5 Subsection 13B(1)
Repeal the subsection.
6 Subsection 13B(2)
Omit "the organisation" (first occurring), substitute "an organisation".
7 Paragraph 13B(2)(b)
Repeal the paragraph, substitute:
(b) the organisation's activities include, or will include, family and child mediation.
8 After Part I
Insert:
Part IA -- Protection of names
9A Use of protected names and symbols
(1) A person must not, without the Minister's written consent:
(a) use in relation to a business, trade, profession or occupation; or
(b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or
(c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or
(d) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of the supply or use of goods or services:
either:
(e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or
(f) a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it.
Penalty: 30 penalty units.
(2) Subsection (1), so far as it applies in relation to a particular protected name or protected symbol, does not affect rights conferred by law on a person in relation to:
(a) a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995 ; or
(b) a design registered under the Designs Act 2003 ;
that was so registered, or was registered under the Designs Act 1906 , at the protection time in relation to the name or symbol.
(3) This section, so far as it applies in relation to a particular protected name or protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol ) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person:
(a) was using the relevant name or symbol in good faith in that manner; or
(b) would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first - mentioned person.
(4) In this section:
"protected name" means a name prescribed for the purposes of this definition.
"protected symbol" means a symbol whose design is set out in the regulations.
"protection time" means:
(a) in relation to a protected name--the time immediately before the commencement of the regulation prescribing the name; or
(b) in relation to a protected symbol--the time immediately before the commencement of the regulation setting out the design of the symbol.
Part 3 -- Changes to dispute resolution
9 Subsection 4(1)
Insert:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first - mentioned person or the other person, and where there is unequal power in the relationship between the child and the first - mentioned person.
10 Subsection 4(1)
Insert:
"Accreditation Rules" means regulations made under section 10A.
11 Subsection 4(1) (definition of approved counselling organisation )
Repeal the definition.
12 Subsection 4(1) (definition of approved mediation organisation )
Repeal the definition.
13 Subsection 4(1)
Insert:
"arbitration" has the meaning given by section 10L.
14 Subsection 4(1) (definition of arbitrator )
Repeal the definition, substitute:
"arbitrator" has the meaning given by section 10M.
15 Subsection 4(1) (definition of child counselling )
Repeal the definition.
16 Subsection 4(1) (definition of community mediator )
Repeal the definition.
17 Subsection 4(1) (definition of court counsellor )
Repeal the definition.
18 Subsection 4(1) (definition of court mediator )
Repeal the definition.
19 Subsection 4(1) (definition of family and child counselling )
Repeal the definition.
20 Subsection 4(1) (definition of family and child counsellor )
Repeal the definition.
21 Subsection 4(1) (definition of family and child mediation )
Repeal the definition.
22 Subsection 4(1) (definition of family and child mediator )
Repeal the definition.
23 Subsection 4(1)
Insert:
"family consultant" has the meaning given by section 11B.
24 Subsection 4(1)
Insert:
"family counselling" has the meaning given by section 10B.
25 Subsection 4(1)
Insert:
"family counsellor" has the meaning given by section 10C.
26 Subsection 4(1)
Insert:
"family dispute resolution" has the meaning given by section 10F.
27 Subsection 4(1)
Insert:
"family dispute resolution practitioner" has the meaning given by section 10G.
28 Subsection 4(1) (definition of marriage counselling )
Repeal the definition.
29 Subsection 4(1)
Insert:
"post-separation parenting program" means a program:
(a) that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and
(b) that consists of lectures, discussions (including group discussions) or other activities; and
(c) that is provided by an organisation that meets the conditions in section 65LB.
30 Subsection 4(1) (definition of private arbitration )
Repeal the definition.
31 Subsection 4(1) (definition of private mediator )
Repeal the definition.
32 Subsection 4(1)
Insert:
"relevant property or financial arbitration" has the meaning given by subsection 10L(2).
33 Subsection 4(1)
Insert:
"section 13E arbitration" has the meaning given by subsection 10L(2).
34 Subsection 4(1) (definition of welfare officer )
Repeal the definition.
35 After subsection 4(1)
Insert:
(1AA) A reference in this Act to a person or people involved in proceedings is a reference to:
(a) any of the parties to the proceedings; and
(b) any child whose interests are considered in, or affected by, the proceedings; and
(c) any person whose conduct is having an effect on the proceedings.
36 Parts II and III
Repeal the Parts, substitute:
Part II -- Non - court based family services
(1) The regulations may prescribe Accreditation Rules. These are rules relating to:
(a) the accreditation of persons as family counsellors; and
(b) the accreditation of persons as family dispute resolution practitioners; and
(c) the accreditation of persons to perform other roles prescribed by regulations made for the purposes of this paragraph.
(2) Examples of matters that the Accreditation Rules may deal with are:
(a) the standards that are to be met by persons who seek to be accredited; and
(b) who is responsible for determining whether a person meets the Accreditation Rules; and
(c) how accreditation is to be recognised (for example, by establishment of a register or other method); and
(d) the standards and other obligations that accredited persons must continue to meet to remain accredited; and
(e) who is responsible for monitoring compliance with ongoing requirements in the Rules; and
(f) the consequences of accredited persons failing to comply with the provisions of this Act and the Rules; and
(g) the obligations of accredited persons in relation to the monitoring of their compliance; and
(h) how and by whom an accredited person may have his or her accreditation (or recognition of that accreditation) suspended or cancelled; and
(i) review of decisions to refuse, suspend or cancel accreditation (or recognition of accreditation); and
(j) the process for handling complaints involving accredited persons; and
(k) who may deliver recognised training to accredited persons, and
(l) dealing with individuals or other persons who make false or misleading representations about a person's status as an accredited person.
Division 2 -- Family counselling
10B Definition of family counselling
Family counselling is a process in which a family counsellor helps:
(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children.
10C Definition of family counsellor
(1) A family counsellor is:
(a) a person who is accredited as a family counsellor under the Accreditation Rules; or
(b) a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or
(c) a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family counsellor; or
(d) a person who is authorised to act under section 93D of the Federal Magistrates Act 1999 , or engaged under subsection 115(1A) of that Act, as a family counsellor; or
(e) a person who is authorised by a Family Court of a State to act as a family counsellor.
(2) The Minister must publish, at least annually, a list of organisations designated for the purposes of paragraph (b) of the definition of family counsellor .
(3) An instrument under this section is not a legislative instrument.
10D Confidentiality of communications in family counselling
(1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2) A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5) A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
(7) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(8) In this section:
"communication" includes admission.
10E Admissibility of communications in family counselling and in referrals from family counselling
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b) a person (the professional ) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(4) A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
Division 3 -- Family dispute resolution
10F Definition of family dispute resolution
Family dispute resolution is a process (other than a judicial process):
(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and
(b) in which the practitioner is independent of all of the parties involved in the process.
10G Definition of family dispute resolution practitioner
A family dispute resolution practitioner is:
(a) a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules; or
(b) a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or
(c) a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family dispute resolution practitioner; or
(d) a person who is authorised to act under section 93D of the Federal Magistrates Act 1999 , or engaged under subsection 115(1A) of that Act, as a family dispute resolution practitioner; or
(e) a person who is authorised by a Family Court of a State to act as a family dispute resolution practitioner.
(2) The Minister must publish, at least annually, a list of organisations designated for the purposes of paragraph (b) of the definition of family dispute resolution practitioner .
(3) An instrument under this section is not a legislative instrument.
10H Confidentiality of communications in family dispute resolution
(1) A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
(2) A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5) A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6) A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).
(7) Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the practitioner's evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.
(8) In this section:
"communication" includes admission.
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family dispute resolution practitioner conducting family dispute resolution; or
(b) a person (the professional ) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).
(4) A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
10K Family dispute resolution practitioners must comply with regulations
(1) The regulations may prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services they provide.
(2) The regulations may prescribe penalties not exceeding 10 penalty units in respect of offences against regulations made for the purposes of subsection (1).
(1) Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.
(2) Arbitration may be either:
(a) section 13E arbitration --which is arbitration of Part VIII proceedings carried out as a result of an order made under section 13E; or
(b) relevant property or financial arbitration --which is arbitration (other than section 13E arbitration) of:
(i) Part VIII proceedings, Part VIIIA proceedings, Part VIIIB proceedings or section 106A proceedings; or
(ii) any part of such proceedings; or
(iii) any matter arising in such proceedings; or
(iv) a dispute about a matter with respect to which such proceedings could be instituted.
An arbitrator is a person who meets the requirements prescribed in the regulations to be an arbitrator.
10N Arbitrators may charge fees for their services
(1) An arbitrator conducting arbitration may charge the parties to the arbitration fees for conducting it.
(2) The arbitrator must give written information about those fees to the parties before the arbitration starts.
Note: There may be Rules of Court or regulations relating to the costs of arbitration and how they are assessed or taxed (see paragraphs 123(1)(se) and 125(1)(bc)).
An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.
Note: Communications with arbitrators are not confidential, and may be admissible in court.
Part III -- Family consultants
Division 1 -- About family consultants
11A Functions of family consultants
The functions of family consultants are to provide services in relation to proceedings under this Act, including:
(a) assisting and advising people involved in the proceedings; and
(b) assisting and advising courts, and giving evidence, in relation to the proceedings; and
(c) helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and
(d) reporting to the court under sections 55A and 62G; and
(e) advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.
Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.
11B Definition of family consultant
"A" family consultant is a person who is:
(a) appointed as a family consultant under section 38N; or
(b) appointed as a family consultant in relation to the Federal Magistrates Court under the Federal Magistrates Act 1999 ; or
(c) appointed as a family consultant under the regulations; or
(d) appointed under a law of a State as a family consultant in relation to a Family Court of that State.
Note: The Chief Executive Officers of the Family Court and the Federal Magistrates Court have all of the functions and powers of family consultants, and may direct consultants in the performance of their functions. See Division 1A of Part IVA of this Act and Division 1A of Part 7 of the Federal Magistrates Act 1999 .
11C Admissibility of communications with family consultants and referrals from family consultants
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family consultant performing the functions of a family consultant; or
(b) a person (the professional ) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is admissible in proceedings under this Act.
Note 1: Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).
Note 2: Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.
(2) Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).
(3) Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:
(a) it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
11D Immunity of family consultants
A family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.
Division 2 -- Courts' use of family consultants
11E Courts to consider seeking advice from family consultants
(1) If, under this Act, a court has the power to:
(a) order a person to attend family counselling or family dispute resolution; or
(b) order a person to participate in a course, program or other service (other than arbitration); or
(c) order a person to attend appointments with a family consultant; or
(d) advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;
the court:
(e) may, before exercising the power, seek the advice of:
(i) if the court is the Family Court or the Federal Magistrates Court--a family consultant nominated by the Chief Executive Officer of that court; or
(ii) if the court is the Family Court of a State--a family consultant of that court; or
(iii) if the court is not mentioned in subparagraph (i) or (ii)--an appropriately qualified person (whether or not an officer of the court);
as to the services appropriate to the needs of the person and the most appropriate provider of those services; and
(f) must, before exercising the power, consider seeking that advice.
(2) If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought:
(a) whom the court is seeking advice from; and
(b) the nature of the advice the court is seeking.
11F Court may order parties to attend appointments with a family consultant
(1) A court exercising jurisdiction in proceedings under this Act may order one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant.
Note: Before exercising this power, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
(2) When making an order under subsection (1), the court must inform the parties of the effect of section 11G (consequences of failure to comply with order).
(3) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests under an order made under section 68L.
11G Consequences of failure to comply with order under section 11F
(1) If a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:
(a) the order made by the court; or
(b) any instruction the consultant gives to the person;
the consultant must report the failure to the court.
(2) On receiving the report, the court may make any further orders it considers appropriate.
(3) The court may make orders under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests under an order made under section 68L.
(1) The objects of this Part are:
(a) to ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation, in situations where a reconciliation between the couple seems a reasonable possibility; and
(b) to ensure that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust to:
(i) separation or divorce; and
(ii) orders made under this Act; and
(c) to ensure that people affected, or likely to be affected, by separation or divorce are informed about ways of resolving disputes other than by applying for orders under this Act.
Division 2 -- Kind of information to be provided
(1) The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non - court based family services and court's processes and services.
(2) Without limitation, information prescribed under this section must include information about:
(a) the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and
(b) the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and
(c) the steps involved in the proposed proceedings; and
(d) the role of family consultants; and
(e) the arbitration facilities available to arbitrate disputes in relation to separation and divorce.
12C Prescribed information about reconciliation
The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage.
12D Prescribed information about Part VII proceedings
(1) The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII.
(2) Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.
Division 3 -- Who must provide information, and when
12E Obligations on legal practitioners
(1) A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non - court based family services and court's processes and services).
(2) A legal practitioner who is consulted by, or who is representing, a married person who is a party to:
(a) proceedings for a divorce order in relation to the marriage; or
(b) financial or Part VII proceedings in relation to the marriage;
must give the person documents containing the information prescribed under section 12C (about reconciliation).
(3) A legal practitioner representing a party in proceedings under Part VII must give the party documents containing the information prescribed under section 12D (about Part VII proceedings).
Note: Section 63DA also imposes information - giving obligations on legal practitioners dealing with people involved in Part VII proceedings.
(4) A legal practitioner does not have to comply with subsection (1), (2) or (3) if the practitioner has reasonable grounds to believe that the person has already been given documents containing the prescribed information mentioned in that subsection.
(5) A legal practitioner does not have to comply with subsection (2) if the practitioner considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.
12F Obligations on principal executive officers of courts
Obligation to give prescribed information
(1) The principal executive officer of a court that has jurisdiction under this Act must ensure that any person who is considering instituting proceedings under this Act is, on the first occasion the person deals with a registry of the court, given documents containing the information prescribed under:
(a) section 12B (about non - court based family services and court's processes and services); and
(b) section 12C (about reconciliation).
Obligation to respond to requests for information
(2) The principal executive officer of a court that has jurisdiction under this Act must ensure that, if a person involved in proceedings under this Act requests an officer or staff member of the court for information about family counselling services or family dispute resolution services, the person is given documents containing information about those services.
Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.
12G Obligations on family counsellors, family dispute resolution practitioners and arbitrators
(1) A family counsellor, family dispute resolution practitioner or arbitrator who deals with a married person considering instituting:
(a) proceedings for a divorce order in relation to the marriage; or
(b) financial or Part VII proceedings in relation to the marriage;
must give the married person (and in appropriate cases, that person's spouse) documents containing the information prescribed under 12C (about reconciliation).
Note: Section 63DA also imposes information - giving obligations on family counsellors and family dispute resolution practitioners (not arbitrators) dealing with people involved in Part VII proceedings.
(2) A family counsellor, family dispute resolution practitioner or arbitrator does not have to comply with subsection (1), if he or she:
(a) has reasonable grounds to believe that the person has already been given documents containing the prescribed information or
(b) considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.
Part IIIB -- Court's powers in relation to court and non - court based family services
(1) The objects of this Part are:
(a) to facilitate access to family counselling:
(i) to help married couples considering separation or divorce to reconcile; and
(ii) to help people adjust to separation or divorce; and
(iii) to help people adjust to court orders under this Act; and
(b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and
(c) to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and
(d) to give the court the power to require parties to proceedings under this Act to make use of court or non - court based family services appropriate to the needs of the parties.
(2) The object mentioned in paragraph (1)(b) also lies behind the general requirement in section 60I for family dispute resolution services to be used before applications for orders under Part VII are made.
Division 2 -- Help with reconciliation
13B Court to accommodate possible reconciliations
(1) A court exercising jurisdiction in:
(a) proceedings for a divorce order; or
(b) financial or part VII proceedings instituted by a party to a subsisting marriage;
must consider, from time to time, the possibility of a reconciliation between the parties to the marriage.
(2) If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation.
(3) If the court adjourns the proceedings under subsection (2), the court must advise the parties to attend family counselling, or use the services of another appropriate person or organisation.
Note: Before advising the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
(4) If, after an adjournment under subsection (2), either of the parties requests that the proceedings resume, the court must resume the proceedings as soon as practicable.
Division 3 -- Referrals to family counselling, family dispute resolution and other family services
(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
Note 2: The court can also order parties to attend appointments with a family consultant (see section 11F).
(2) The court may suggest a particular purpose for the attendance or participation.
(3) The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
Note: For example, the participation of children, grandparents or other relatives may be encouraged.
(4) The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.
(5) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests under an order made under section 68L.
13D Consequences of failure to comply with order under section 13C
(1) If a party fails to comply with an order of a court under section 13C, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court.
(2) On receiving the report, the court may make any further orders it considers appropriate.
(3) The court may make orders under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests under an order made under section 68L.
Division 4 -- Court's role in relation to arbitration of disputes
13E Court may refer Part VIII proceedings to arbitration
(1) With the consent of all of the parties to the proceedings, a court exercising jurisdiction in Part VIII proceedings may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration.
(2) If the court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make any additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.
13F Court may make orders to facilitate arbitration of certain disputes
A court that has jurisdiction under this Act may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.
13G Family Court and Federal Magistrates Court may determine questions of law referred by arbitrator
(1) An arbitrator of section 13E arbitration or relevant property or financial arbitration may, at any time before making an award in the arbitration, refer a question of law arising in relation to the arbitration for determination by:
(a) a single judge of the Family Court; or
(b) a single judge of the Family Court of a State; or
(c) the Federal Magistrates Court.
(2) The arbitrator may do so:
(a) on his or her own initiative; or
(b) at the request of one or more of the parties to the arbitration if the arbitrator considers it appropriate to do so.
(3) The arbitrator must not make an award in the arbitration before the judge or Federal Magistrates Court has either:
(a) determined the question of law; or
(b) remitted the matter to the arbitrator having found that no question of law arises.
13H Awards made in arbitration may be registered in court
(1) A party to an award made in section 13E arbitration or in relevant property or financial arbitration may register the award:
(a) in the case of section 13E arbitration--in the court that ordered the arbitration; or
(b) otherwise--in a court that has jurisdiction under this Act.
(2) An award registered under subsection (1) has effect as if it were a decree made by that court.
13J Family Court or Federal Magistrates Court can review registered awards
(1) A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:
(a) a single judge of the Family Court; or
(b) a single judge of the Family Court of a State; or
(c) the Federal Magistrates Court.
Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).
(2) On a review of an award under this section, the judge or Federal Magistrates Court may:
(a) determine all questions of law arising in relation to the arbitration; and
(b) make such decrees as the judge or Federal Magistrates Court thinks appropriate, including a decree affirming, reversing or varying the award.
13K Family Court and Federal Magistrates Court may set aside registered awards
(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:
(a) the Family Court; or
(b) the Federal Magistrates Court; or
(c) a Family Court of a State;
the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.
(2) The court may only make a decree under subsection (1) if the court is satisfied that:
(a) the award or agreement was obtained by fraud (including non - disclosure of a material matter); or
(b) the award or agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
(d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.
37 Subsection 26B(1)
Omit "19G", substitute "13K".
38 Subsection 37(2)
Omit "(other than the court counsellors)".
39 At the end of section 37
Add:
(3) Despite subsection (2), the Principal Registrar must not give directions that relate to an officer's functions as a family consultant, family counsellor or family dispute resolution practitioner.
40 Paragraph 37A(1)(e)
Repeal the paragraph, substitute:
(e) the power to make orders under:
(i) sections 11F and 11G; and
(ii) sections 13C and 13D; and
(iii) subsection 65LA(1); and
(iv) paragraph 70NEB(1)(a);
(ea) the power to direct a family consultant to give a report under section 62G;
41 Paragraph 37A(2)(e)
Omit "19G", substitute "13K".
42 After Division 1 of Part IVA
Insert:
Division 1A -- Administration of Court's family services
38BA Chief Executive Officer has functions of family consultants
(1) The Chief Executive Officer has all of the functions conferred on family consultants by section 11A, and any associated powers and duties.
(2) Without limiting subsection (1), sections 11C (admissibility of communications with family consultants) and 11D (immunity of family consultants) apply to the Chief Executive Officer while the Chief Executive Officer is performing those functions.
(3) The Chief Executive Officer is responsible for administering the functions of family consultants.
38BB Chief Executive Officer may delegate powers and functions that relate to family consultants
(1) The Chief Executive Officer may, in writing, delegate to a family consultant any of the Chief Executive Officer's powers, functions and duties in relation to the functions of family consultants mentioned in section 11A.
(2) A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Chief Executive Officer.
38BC Chief Executive Officer may give directions that relate to family services functions
The Chief Executive Officer may give directions that relate to:
(a) a Court officer's functions as a family consultant; or
(b) a Court officer's or staff member's functions as a family counsellor or family dispute resolution practitioner.
(1) The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family counselling under this Act.
(2) The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family dispute resolution under this Act.
(3) If an officer who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section:
(a) section 11C (admissibility of communications with family consultants) does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and
(b) the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a person involved in those proceedings.
43 Paragraphs 38N(1)(d), (da), (daa) and (db)
Repeal the paragraphs, substitute:
(d) such family consultants as are necessary;
44 After subsection 38R(1)
Insert:
(1A) The Chief Executive Officer may engage persons to perform:
(a) family counselling services under this Act; or
(b) family dispute resolution services under this Act.
45 Subsection 38R(2)
After "subsection (1)", insert "or (1A)".
46 Paragraph 41(4)(c)
Omit "counselling facilities", substitute "appropriate family counselling and family dispute resolution services, and family consultants,".
47 Paragraph 44(1B)(a)
Repeal the paragraph, substitute:
(a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:
(i) a family counsellor; or
(ii) if the court is the Family Court, the Federal Magistrates Court or the Family Court of a State--an individual or an organisation nominated for the parties by a family consultant; or
(iii) if the court is not the Family Court, the Federal Magistrates Court or the Family Court of a State--an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and
48 Subsection 55A(2)
Omit "a family and child counsellor or welfare officer", substitute "a family consultant".
49 Section 60C (table item 3)
Repeal the table item, substitute:
3 | Division 3--Reports relating to children under 18 preparation of reports for use in proceedings relating to children under 18 |
50 Division 3 of Part VII (heading)
Repeal the heading, substitute:
Division 3 -- Reports relating to children under 18
51 Section 62A
Repeal the section, substitute:
This Division deals with the preparation of reports for use in proceedings relating to children who are under 18.
52 Sections 62B, 62C, 62CA, 62D, 62E and 62F
Repeal the sections, substitute:
If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order.
Note: Before informing the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
53 Subsection 62G(2)
Omit "a family and child counsellor or welfare officer", substitute "a family consultant".
Note: The heading to section 62G is altered by omitting " family and child counsellors and welfare officers " and substituting " family consultants ".
54 Subsections 62G(4) and (5)
Repeal the subsections, substitute:
(4) The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
(5) For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that a party to proceedings, or the child, attend an appointment or a series of appointments with a family consultant).
Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
55 Subsection 62G(6)
Omit "counsellor or welfare officer", substitute "family consultant".
56 Section 62H
Repeal the section.
57 Subsection 65F(1)
Repeal the subsection.
58 Paragraph 65F(2)(a)
Omit "a conference with a family and child counsellor or a welfare officer", substitute "family counselling".
59 Paragraph 65L(1)(a)
Omit "a family and child counsellor or a welfare officer", substitute "a family consultant".
Note: The heading to section 65L is altered by omitting " Counsellors " and substituting " Family consultants ".
60 Paragraph 65L(1)(b)
Omit "a family and child counsellor or a welfare officer", substitute "a family consultant".
61 Subsection 65LA(1)
Repeal the subsection, substitute:
(1) In proceedings for a parenting order, the court may make an order directing a party to the proceedings to attend a post - separation parenting program.
Note: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the party's needs (see section 11E).
62 Subsection 65LA(3) (definition of post - separation parenting program or program )
Repeal the definition.
63 Subsection 65LA(3) (definition of post - separation parenting program provider or provider )
Repeal the definition.
64 After section 65LA
Insert:
65LB Conditions for providers of post - separation parenting programs
(1) An organisation meets the conditions in this section if:
(a) it is a recipient organisation (see subsection (2)); or
(b) there is a recipient organisation in relation to the organisation (see subsection (3)).
(2) An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order to provide services that include post - separation parenting programs.
(3) An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if:
(a) both:
(i) the other organisation is a member of the organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation's members may provide services that include post - separation parenting programs; or
(b) both:
(i) the organisation acts on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include post - separation parenting programs.
(4) The Minister may, in writing, designate for the purposes of this section:
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making post - separation parenting programs available.
(5) An instrument under this section is not a legislative instrument.
65 Subsection 67ZA(1)
Repeal the subsection, substitute:
(1) This section applies to a person in the course of performing duties or functions, or exercising powers, as:
(a) the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; or
(b) the Registrar or a Deputy Registrar of the Family Court of Western Australia; or
(c) a Registrar of the Federal Magistrates Court; or
(d) a family consultant; or
(e) a family counsellor; or
(f) a family dispute resolution practitioner; or
(g) an arbitrator; or
(h) a lawyer independently representing a child's interests.
Note: The heading to section 67ZA is altered by omitting " counsellor, mediator " and substituting " family counsellor, family dispute resolution practitioner ".
66 Subsection 102A(5) (paragraph (b) of the definition of examined )
Omit "family and child counsellor or welfare officer", substitute "family counsellor or family consultant".
67 Before subsection 111CV(1)
Insert:
(1A) This section covers:
(a) a court; and
(b) the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; and
(c) the Registrar or a Deputy Registrar of a Registry of the Family Court of a State; and
(d) a Registrar of the Federal Magistrates Court; and
(e) a family consultant; and
(f) a family counsellor; and
(g) a family dispute resolution practitioner; and
(h) an arbitrator; and
(i) the provider of a course, program or service which a person is ordered to participate in under this Act.
68 Subsection 111CV(1)
Omit "A court must inform a competent authority of another country about any information the court", substitute "A court or person covered by this section must inform a competent authority of another country about any information the court or person".
69 Subsection 111CV(5)
Repeal the subsection.
70 Subsection 115(2)
Omit "representatives of organisations that provide family and child counselling", substitute "family counsellors, family dispute resolution practitioners".
71 Paragraph 123(1)(j)
Repeal the paragraph, substitute:
(j) authorising an officer making an investigation mentioned in paragraph (h) to:
(i) take evidence on oath or affirmation; and
(ii) receive in evidence a report from a family consultant under section 55A or 62G; and
(iii) receive in evidence a report from a person who has had dealings with a party to the matter under investigation under section 65F, 65L, 65LA, 70NEB or 70NEG; and
(ja) enabling the summoning of witnesses before an officer making an investigation mentioned in paragraph (h) for the purposes of giving evidence or producing books or documents; and
72 Paragraph 123(1)(s)
Repeal the paragraph, substitute:
(s) providing for and in relation to:
(i) the attendance at family counselling by parties to proceedings under this Act; and
(ii) the attendance at family dispute resolution by parties to proceedings under this Act; and
(iii) the giving of advice and assistance by family consultants to people involved in proceedings under this Act; and
(iv) the participation by parties to proceedings under this Act in courses, programs and other services (other than those mentioned in subparagraph (i), (ii) or (iii)) that the parties are ordered by the court to participate in; and
(v) the use, for the purposes of proceedings under this Act, by courts exercising jurisdiction under this Act and officers of such courts, of reports about the future conduct of the proceedings that have been prepared by persons who dealt with the parties in accordance with Rules of Court made under subparagraphs (i), (ii), (iii) or (iv); and
73 Paragraph 123(1)(sa)
Omit "court mediators", substitute "family consultants".
74 Paragraph 123(1)(sb)
Omit "mediation or".
75 Paragraph 123(1)(sb)
Omit "section 19E", substitute "sections 13E and 13F".
76 Paragraph 123(1)(sc)
Omit "mediated or".
77 After paragraph 123(1)(sc)
Insert:
(sca) prescribing the disputes, proceedings or matters in relation to which family consultants may, or must not, perform their functions; and
78 Paragraph 123(1)(sd)
Repeal the paragraph, substitute:
(sd) providing for and in relation to:
(i) the functions to be performed by family consultants; and
(ii) the procedures to be followed in performing those functions; and
(iii) the procedures to be followed by persons involved in proceedings in relation to which a family consultant is performing functions; and
(iv) the procedures to be followed when a family consultant ceases performing functions in relation to a dispute, proceeding or matter; and
(sda) providing for and in relation to:
(i) the procedures to be followed by a family counsellor authorised under subsection 38BD(1) or engaged under subsection 38R(1A); and
(ii) the procedures to be followed by persons attending family counselling with such a counsellor; and
(iii) the procedures to be followed when family counselling with such a counsellor ends; and
(sdb) providing for and in relation to:
(i) the procedures to be followed by a family dispute resolution practitioner authorised under subsection 38BD(2) or engaged under subsection 38R(1A); and
(ii) the procedures to be followed by persons attending family dispute resolution with such a practitioner; and
(iii) the procedures to be followed when family dispute resolution with such a practitioner ends; and
(sdc) providing for and in relation to:
(i) the procedures to be followed by an arbitrator in relation to a dispute, proceeding or matter under this Act; and
(ii) the attendance by persons at conferences conducted by arbitrators for the purpose of arbitrating a dispute, proceeding or matter under this Act; and
(iii) the procedure to be followed when arbitration ends, both where it has resulted in an agreement or award and where it has not; and
79 Paragraph 123(1)(se)
Repeal the paragraph, substitute:
(se) prescribing matters relating to the costs of arbitration by arbitrators, and the assessment or taxation of those costs; and
(sea) prescribing matters relating to the costs of family counselling by family counsellors authorised under subsection 38BD(1) or engaged under subsection 38R(1A); and
(seb) prescribing matters relating to the costs of family dispute resolution by family dispute resolution practitioners authorised under subsection 38BD(2) or engaged under subsection 38R(1A); and
80 Subparagraph 123(1)(sf)(i)
Omit "19D or 19E", substitute "13H".
81 Subparagraph 123(1)(sf)(ii)
Omit "19F", substitute "13J".
82 Subparagraph 123(1)(sf)(ii)
Omit "19G", substitute "13K".
83 Paragraph 125(1)(ba)
Repeal the paragraph, substitute:
(ba) providing for and in relation to the authorisation of:
(i) officers or staff members of the Family Court as family counsellors under subsection 38BD(1); and
(ii) officers or staff members of the Family Court as family dispute resolution practitioners under subsection 38BD(2); and
84 After paragraph 125(1)(bb)
Insert:
(bba) the registration of awards made in section 13E arbitration and relevant property or financial arbitration; and
85 Paragraph 125(1)(bc)
Omit "(sc), (sd) or (se)", substitute "(sc), (sca), (sd), (sda), (sdb), (sdc), (se), (sea) or (seb)".
86 Paragraph 125(1)(ca)
Repeal the paragraph, substitute:
(ca) prescribing fees payable for services provided by the Family Court in circumstances other than where a court orders or directs the provision of the services; and
87 Section 4
Omit "promote the use of primary dispute resolution", substitute "promote the use of dispute resolution".
88 Section 5
Insert:
"Accreditation Rules" means regulations made under section 10A of the Family Law Act 1975 .
89 Section 5 (definition of Family and child counsellor )
Repeal the definition.
90 Section 5
Insert:
"family consultant" means a family consultant within the meaning of the Family Law Act 1975 .
91 Section 5 (definition of Welfare officer )
Repeal the definition.
92 Part 4 (heading)
Repeal the heading, substitute:
Part 4 -- Dispute resolution for proceedings other than proceedings under the Family Law Act 1975
93 Before section 21
Insert:
20A This Part does not apply to proceedings under the Family Law Act 1975
This Part applies to proceedings in the Federal Magistrates Court other than proceedings under the Family Law Act 1975 .
Note 1: For proceedings under the Family Law Act 1975 , see in particular Parts II, III, IIIA and IIIB of that Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the Federal Magistrates Court in relation to proceedings under that Act.
Note 2: This Part (other than Division 2: see section 33) applies to proceedings under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 .
94 Section 21 (definition of primary dispute resolution processes )
Repeal the definition.
95 Section 21
Insert:
"dispute resolution processes" means procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes:
(a) counselling; and
(b) mediation; and
(c) arbitration; and
(d) neutral evaluation; and
(e) case appraisal; and
(f) conciliation.
Note: The heading to section 21 is altered by omitting " Primary dispute " and substituting " Dispute ".
96 Section 22
Omit "primary".
Note: The heading to section 22 is altered by omitting " primary ".
97 Section 23 (including the note)
Omit "primary" (wherever occurring).
Note: The heading to section 23 is altered by omitting " primary ".
98 Section 24
Omit "primary".
Note: The heading to section 24 is altered by omitting " primary ".
99 Subsection 25(1)
Omit "primary".
Note: The heading to section 25 is altered by omitting " primary ".
100 Subsection 27(1)
Omit "primary" (wherever occurring).
Note: The heading to section 27 is altered by omitting " primary ".
101 Subsections 27(2), 28(1) and (2) and 29(1)
Omit "primary".
Note: The headings to sections 28 and 29 are altered by omitting " primary ".
102 Paragraph 29(2)(a)
Omit "primary".
103 Subparagraphs 29(2)(b)(i) and (ii)
Omit "primary".
104 Paragraph 29(2)(c)
Omit "primary".
105 Section 30
Omit "primary" (wherever occurring).
Note: The headings to sections 30 and 31 are altered by omitting " primary ".
106 After Division 1 of Part 7
Insert:
Division 1A -- Administration of Federal Magistrates Court's family services
93A Chief Executive Officer has functions of family consultants
(1) The Chief Executive Officer has all of the functions conferred on family consultants by section 11A of the Family Law Act 1975 , and any associated powers and duties.
(2) Without limiting subsection (1), sections 11C (admissibility of communications with family consultants) and 11D (immunity of family consultants) of that Act apply to the Chief Executive Officer while the Chief Executive Officer is performing the functions of a family consultant.
(3) The Chief Executive Officer is responsible for administering the functions of family consultants appointed by the Chief Executive Officer.
93B Chief Executive Officer may delegate powers and functions that relate to family consultants
(1) The Chief Executive Officer may, in writing, delegate to a family consultant any of the Chief Executive Officer's powers, functions and duties in relation to the functions of family consultants mentioned in section 11A of the Family Law Act 1975 .
(2) A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Chief Executive Officer.
93C Chief Executive Officer may give directions that relate to family services functions
The Chief Executive Officer may give directions that relate to:
(a) a Court officer's functions as a family consultant; or
(b) a Court officer's or staff member's functions as a family counsellor or family dispute resolution practitioner.
(1) The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family counselling under Family Law Act 1975 .
(2) The Chief Executive Officer may authorise an officer or staff member of the Federal Magistrates Court to provide family dispute resolution under the Family Law Act 1975 .
(3) If an officer who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section:
(a) section 11C of the Family Law Act 1975 (admissibility of communications with family consultants) does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and
(b) the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a party to those proceedings.
107 Paragraph 87(1)(f)
Repeal the paragraph, substitute:
(f) authorising an officer making an investigation mentioned in paragraph (e) to:
(i) take evidence on oath or affirmation; and
(ii) receive in evidence a report from a family consultant under section 55A or 62G of the Family Law Act 1975 ; and
(iii) receive in evidence a report from a person who has had dealings with a party to a matter under investigation under section 65F, 65L, 65LA, 70NEB or 70NEG of the Family Law Act 1975 ; and
(fa) enabling the summoning of witnesses before an officer making an investigation mentioned in paragraph (e) for the purposes of giving evidence or producing books or documents; and
108 Subsection 87(2)
Repeal the subsection, substitute:
(2) The Rules of Court may make provision for or in relation to:
(a) attendance at family counselling by parties to proceedings under the Family Law Act 1975 ; and
(b) attendance at family dispute resolution by parties to proceedings under the Family Law Act 1975 ; and
(c) the giving of advice and assistance by family consultants to people involved in proceedings under the Family Law Act 1975 ; and
(d) the participation by parties to proceedings under the Family Law Act 1975 in courses, programs and other services that the parties are ordered by the court to participate in; and
(e) the use, for the purposes of proceedings under the Family Law Act 1975 , by the Federal Magistrates Court and officers of the Court in family law and child support proceedings, of reports about the future conduct of the proceedings that have been prepared by persons who dealt with the parties in accordance with Rules of Court made under paragraphs (a), (b), (c) or (d).
109 At the end of subsection 99(1)
Add:
; (f) such family consultants as are necessary.
110 Paragraph 102(2)(k)
Repeal the paragraph, substitute:
(k) the power to make orders under the following provisions of the Family Law Act 1975 :
(i) sections 11F and 11G;
(ii) sections 13C and 13D;
(iii) subsection 65LA(1);
(iv) paragraph 70NEB(1)(a);
(ka) the power to direct a family consultant to give a report under section 62G of the Family Law Act 1975 ;
111 After section 111
Insert:
Family consultants who are officers of the Federal Magistrates Court are to be persons engaged under the Public Service Act 1999 .
Note: Family consultants who are not officers of the Federal Magistrates Court may be appointed under regulations made under the Family Law Act 1975 . See paragraph 11B(b) of the Family Law Act 1975 .
112 After subsection 115(1)
Insert:
(1A) The Chief Executive Officer may engage persons to perform:
(a) family counselling services under the Family Law Act 1975 ; or
(b) family dispute resolution services under the Family Law Act 1975 .
113 Subsection 115(2)
After "subsection (1)", insert "or (1A)".
Income Tax Assessment Act 1997
113A Subsection 30 - 70(1) (table item 8.1.1)
Repeal the item, substitute:
8.1.1 | a public fund established and maintained by a * non - profit company solely for the purpose of providing money to be used in giving or providing marriage education under the Marriage Act 1961 to individuals in Australia | see section 30 - 75 | |
8.1.2 | a public fund: (a) that is established and maintained by a * non - profit company which receives funding from the Commonwealth to provide family counselling or family dispute resolution within the meaning of the Family Law Act 1975 ; and (b) that is established and maintained solely for the purpose of providing money to be used in providing family counselling or family dispute resolution within the meaning of the Family Law Act 1975 to individuals in Australia | none | |
113B Section 30 - 75
Repeal the section, substitute:
30 - 75 Marriage education organisations must be approved
You can deduct a gift that you make to a public fund covered by item 8.1.1 of the table in subsection 30 - 70(1) only if the company has been approved by the Minister under section 9C of the Marriage Act 1961 .
114 Section 9D
Repeal the section.
115 Paragraph 16(2A)(a)
Omit "and child" (wherever occurring).
116 Paragraph 16(2A)(b)
Omit "and child".
117 Subsection 16(7)
Omit " and child ".
Part 4 -- Transitional matters relating to family counselling and family dispute resolution
118 Definitions
(1) Terms used in this Part that are defined in the Family Law Act 1975 have the same meaning in this Part as they have in that Act.
(2) In this Part:
approved family counselling organisation means:
(a) an organisation in respect of which an approval is in force under item 120; or
(b) an organisation that is taken to be an approved family counselling organisation because of item 123.
approved family dispute resolution organisation means:
(a) an organisation in respect of which an approval is in force under item 125; or
(b) an organisation that is taken to be an approved family dispute resolution organisation because of item 128.
commencement means the time at which Part 3 of this Schedule commences.
transition period means the period:
(a) commencing at commencement; and
(b) ending on the day prescribed by regulations made for the purposes of this definition.
119 Persons who are taken to be family counsellors during the transition period
During the transition period, a person who is authorised by an approved family counselling organisation to offer family counselling on behalf of the organisation is taken to be a family counsellor within the meaning of section 10C of the Family Law Act 1975 .
120 Approval of family counselling organisations
(1) During the transition period, the Minister may, by notice in writing to an organisation, approve the organisation as a family counselling organisation if, and only if, the Minister is satisfied that:
(a) the organisation is a recipient organisation (see subitem (2)); or
(b) there is a recipient organisation in relation to the organisation (see subitem (3)).
Note: If an organisation meets the requirements for approval under both this item and item 125, the Minister may approve the organisation as both a family counselling organisation and a family dispute resolution organisation.
(2) An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subitem (4) in order to provide services that include family counselling.
(3) An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if:
(a) both:
(i) the other organisation is a member of the organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subitem (4) in order that the organisation's members may provide services that include family counselling; or
(b) both:
(i) the organisation acts on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subitem (4) in order that the organisations on whose behalf it acts may provide services that include family counselling.
(4) The Minister may, in writing, designate for the purposes of subitem (1):
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making family counselling and family dispute resolution services available.
(5) An instrument under this item is not a legislative instrument.
121 Termination and revocation of approvals
(1) An organisation ceases to be approved under item 120 if:
(a) the organisation; or
(b) if the organisation is not the recipient organisation within the meaning of subitem 120(2)--the recipient organisation in relation to the organisation within the meaning of subitem 120(3);
either:
(c) ceases to receive; or
(d) ceases to be approved to receive;
funding under a program or part of a program designated by the Minister under subitem 120(4).
(2) The Minister must revoke the approval of an organisation under item 120 if the organisation requests the revocation.
(3) The Minister's power to revoke an approval must be exercised by notice in writing to the organisation concerned.
122 Minister to publish lists of approved family counselling organisations
The Minister must publish annually, in such manner as the Minister thinks appropriate, a list of all approved family counselling organisations.
123 Approved counselling organisations become approved family counselling organisations
(1) If, immediately before commencement, there is in force in respect of an organisation an approval under section 13A of the Family Law Act 1975 , the organisation is, during the transition period, taken to be approved as a family counselling organisation under item 120 of this Schedule.
Note: An organisation may be approved before commencement under both section 13A and section 13B of the Family Law Act 1975 . If that is the case, then both this item and item 128 will apply to the organisation.
(2) Subitem (1) does not prevent:
(a) the organisation's approval from being terminated; or
(b) the Minister from revoking the organisation's approval;
under item 121.
124 Persons who are taken to be family dispute resolution practitioners during the transition period
During the transition period, these persons are taken to be family dispute resolution practitioners within the meaning of section 10G of the Family Law Act 1975 :
(a) a person who is authorised by an approved family dispute resolution organisation to offer family dispute resolution on behalf of the organisation;
(b) a person, other than a person mentioned in paragraph (a), who:
(i) on commencement; or
(ii) by the end of the period of 12 months starting on commencement;
meets the requirements specified in regulations made for the purposes of this paragraph.
125 Approval of family dispute resolution organisations
(1) During the transition period, the Minister may, by notice in writing to an organisation, approve the organisation as a family dispute resolution organisation if, and only if, the Minister is satisfied that:
(a) the organisation is a recipient organisation (see subitem (2)); or
(b) there is a recipient organisation in relation to the organisation (see subitem (3)).
Note: If an organisation meets the requirements for approval under both this item and item 120, the Minister may approve the organisation as both a family counselling organisation and a family dispute resolution organisation.
(2) An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subitem (4) in order to provide services that include family dispute resolution.
(3) An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if:
(a) both:
(i) the other organisation is a member of the organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation's members may provide services that include family dispute resolution; or
(b) both:
(i) the organisation acts on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include family dispute resolution.
(4) The Minister may, in writing, designate for the purposes of subitem (1):
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making family counselling and family dispute resolution services available.
(5) An instrument under this item is not a legislative instrument.
126 Termination and revocation of approvals
(1) An organisation ceases to be approved under item 125 if:
(a) the organisation; or
(b) if the organisation is not the recipient organisation within the meaning of subitem 125(2)--the recipient organisation in relation to the organisation within the meaning of subitem 125(3);
either:
(c) ceases to receive; or
(d) ceases to be approved to receive;
funding under a program or part of a program designated by the Minister under subitem 125(4).
(2) The Minister must revoke the approval of an organisation under item 125 if the organisation requests the revocation.
(3) The Minister's power to revoke an approval must be exercised by notice in writing to the organisation concerned.
127 Minister to publish lists of approved family dispute resolution organisations
The Minister must publish annually, in such manner as the Minister thinks appropriate, a list of all approved family dispute resolution organisations.
128 Approved mediation organisations become approved family dispute resolution organisations
(1) If, immediately before commencement, there is in force in respect of an organisation an approval under section 13B of the Family Law Act 1975 , the organisation is, on and from commencement, taken to be approved as a family dispute resolution organisation under item 125.
Note: An organisation may be approved before commencement under both section 13A and section 13B of the Family Law Act 1975 . If that is the case, then both this item and item 123 will apply to the organisation.
(2) Subitem (1) does not prevent:
(a) the organisation's approval from being terminated; or
(b) the Minister from revoking the organisation's approval;
under item 126.
Part 5 -- Application and transitional provisions relating to other changes to dispute resolution
129 Definition of commencement
In this Part:
commencement means the time at which Part 3 of this Schedule commences.
130 Notices filed under section 15
If, at commencement, a notice filed under section 15 of the Family Law Act 1975 as in force at any time before commencement has not been acted on, an appropriate officer of the court in which the notice is filed must arrange for the parties to the marriage to which the notice relates to be interviewed by a family counsellor for the purpose of assisting the parties to reconcile or to improve their relationship with each other or any of their children.
131 Arbitration awards registered under section 19D or 19E are taken to be registered under section 13H
If:
(a) at any time before commencement, an award in an arbitration had been registered under section 19D or 19E of the Family Law Act 1975 ; and
(b) the award is still registered immediately before commencement;
the registration of the award continues to have effect after commencement as if it had been done under section 13H of that Act.
132 Powers under Division 4 of Part IIIB of the Family Law Act 1975 may be exercised in relation to section 19D arbitration and private arbitration
For the purposes of section 13G, 13H, 13J and 13K:
(a) a reference to section 13E arbitration includes a reference to section 19D arbitration (within the meaning of the Family Law Act 1975 as in force immediately before commencement); and
(b) a reference to relevant property or financial arbitration includes a reference to private arbitration of a dispute (within the meaning of the Family Law Act 1975 as in force immediately before commencement).
133 Subsection 44(1B) certificates
A certificate in relation to the parties to a marriage, signed before commencement by a person mentioned in subparagraph 44(1B)(a)(i) or (ii) of the Family Law Act 1975 (as in force immediately before commencement), may be filed in relation to an application for a divorce order in relation to the marriage in satisfaction of the requirement in subsection 44(1B) of that Act as amended by this Schedule.
134 Request for counselling under section 62C or 62CA
If, at commencement, a notice filed under section 62C or 62CA of the Family Law Act 1975 has not been acted on, an appropriate officer of the court in which the notice is filed must arrange for the parties to the proceedings to which the notice relates (and the child and any other persons the officer thinks appropriate) to be interviewed by a family counsellor to assess whether counselling is appropriate in all the circumstances, and, if it is:
(a) to discuss the care, welfare and development of the child; and
(b) if there are differences between the parties in relation to matters affecting the care, welfare and development of the child, to try to resolve those differences.
135 Order under subsection 62F(2)
If, at commencement, an order under subsection 62F(2) of the Family Law Act 1975 has not yet been complied with, the order is taken to have been complied with if the parties to which the order relate attend a conference with a family counsellor (within the meaning of the Family Law Act 1975 as amended by this Schedule).
136 Reports under section 62G
If, at commencement, a family and child counsellor or welfare officer (within the meaning of the Family Law Act 1975 as in force immediately before commencement) has been directed to give a report under subsection 62G(2) of that Act and has not yet given that report:
(a) the person must still provide the report; and
(b) references in section 62G of that Act (as amended by this Schedule) to a family consultant are taken to be references to the person who provides the report.
137 Pre - parenting order counselling for the purposes of section 65F
If, before commencement, parties to proceedings attended a conference with a family and child counsellor or a welfare officer to discuss the matter to which the proceedings relate, the attendance at that conference is taken to satisfy the requirement in subsection 65F(2) of the Family Law Act 1975 (as amended by this Schedule) to attend a conference with a family counsellor.
138 Supervision etc. of parenting orders
If:
(a) under a court order made before commencement under section 65L of the Family Law Act 1975 , a person is required to do either or both of the following:
(i) supervise compliance with a parenting order;
(ii) give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order; and
(b) immediately after commencement, the person is not a family consultant within the meaning of the Family Law Act 1975 as amended by this Schedule;
then the court may make another order substituting a family consultant for the person.
138A Application of amendments of the Income Tax Assessment Act 1997
The amendments made by items 113A and 113B of this Schedule apply to gifts made on or after commencement.
139 Regulations may prescribe matters relating to this Schedule
(1) The Governor - General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.
(2) The Governor - General may make regulations prescribing matters:
(a) required or permitted by this Schedule to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.