Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW (AMENDMENT) REGULATIONS 2001 (NO. 1) 2001 NO. 31

STATUTORY RULES 2001 No. 31

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW (AMENDMENT) REGULATIONS 2001 (No. 1)

Subsection 125(1) of the Family Law Act 1975 ("the Act") empowers the Governor-General to make Regulations for the purposes of the Act.

Sections 19D and 19E of the Act provide for arbitration of family law disputes relating to matters dealt with by Part VIII of the Act. Part VIII deals with property, spousal maintenance and maintenance agreements.

The purpose of the Regulations is to:

•       establish a new Part (Division 2A) in the Regulations to facilitate court ordered and private arbitration of

disputes relating to matters dealt with by Part VIII of the Family Law Act;

•       provide for a new maximum of nine Judges of the Family Court who will comprise the Appeal Division of the Court;

•       provide for a maximum of 200 hours of community service that the Family Court may order under subsections 70NK(5) and 112AG(6) of the Act; and

•       provide a definition of prescribed decrees in relation to which leave to appeal would be required, similar to that which was contained in subsection 94AA(4) of the Act.

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

Regulation 1 provides that the Regulations are called the Family Law Amendment Regulations 2001 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 - Amendment of Family Law Regulations 1984

Regulation 3 provides that the Family Law Regulations 1984 ("the Principal Regulations") are amended by Schedule 1 of the Family Law Amendment Regulations 2001 (No. 1).

SCHEDULE 1

Item 1 - amendment to Regulation 3 (definitions)

This item inserts a definition of 'legal practitioner' into the Regulations taking account of the proposed Regulation 67B which sets out the qualifications that arbitrators are required to have under the Act.

Item 2 - 12AB

The purpose of this regulation is to provide for the appointment of a maximum of nine Judges of the Family Court who will comprise the Appeal Division of the Court. In accordance with subsection 22(2AA) the Chief Justice and the Deputy Chief Justice are deemed to be part of the Appeal Division.

The increase to nine was included in response to the steady increase in the number and complexity of appeals being heard by the Appeal Division of the Court.

Item 3 - 14A

The purpose of this regulation is to prescribe that where the Family Court makes a community service sentence or order, the maximum period of the sentence or order will be 200 hours in whichever State and Territory the sentence or order is made.

Item 4

The purpose of this regulation is to include a definition of prescribed decrees in relation to which leave to appeal would be required, similar to that which was previously contained in subsection 94AA(4) of the Act, but which was removed by the Family Law Amendment Act 2000.

Item 5

This item removes regulation 18A of the Regulations, which prescribed the maximum period for subsection 112AG(6) of the Act. This is now prescribed by new regulation 14A.

Items 6, 8 and 11

These items remove the current references to 'approved' in reference to an arbitrator. Arbitrators are no longer approved but must meet the criteria set out in regulation 67B to be able to act as an arbitrator.

Item 7 - Division 2A

Regulation 67A

This regulation inserts a definition of arbitration, which incorporates both court-ordered consensual arbitration under section 19D of the Act and private arbitration under section 19E of the Act. It also provides a definition of arbitration agreement that refers to the requirements set out in new regulation 67F.

Regulation 67B

This regulation sets out the qualifications that a person must have to be an arbitrator under sections 19D and 19E of the Act. The person must firstly be a legal practitioner, and either a family law specialist accredited by a State or Territory legal professional body or a legal practitioner who has practised as such for at least 5 years with at least 25% of the work having related to family law matters. In addition the person must have successfully completed specialist arbitration training and have their name on a list held by the Law Council of Australia or by a body nominated by that Council.

Regulation 67C

The intention of this provision is to make it clear that any property dealt with by an approved Part VIII spousal maintenance agreement is not to be the subject of an award by an arbitrator.

Regulation 67D

This regulation provides that an application for consensual court-ordered arbitration must be filed jointly by the parties to evidence their consent, in accordance with new Form 6. The application must be accompanied by a statement which sets out a range of matters relating to the dispute and also be accompanied by a financial statement as set out in Form 17 of the Family Law Rules 1984. The statement must also detail any dealings or agreements between the parties in relation to the property that is the subject of the arbitration.

Regulation 67E

This regulation provides that a party may make an application for private arbitration either individually or jointly with the other party or parties. An application must be in accordance with new Form 7.

Regulation 67F

This regulation provides that parties to arbitration may make an agreement in relation to an arbitration under section 19D or 19E of the Act. Such an agreement must be in writing and signed by each party to the arbitration, and contain certain information specified in the regulation, relating to the parties to the arbitration, the arbitrator, the issues to be dealt with by the arbitration, the conduct of the arbitration and payment of costs involved.

Regulation 67G

This regulation applies only if the parties to arbitration have not entered into an arbitration agreement. It provides that at least 28 days notice must be given to the other parties before conducting an arbitration, whether court-ordered or private. That notice must contain a number of matters. The regulation is designed to make it clear just what the matters are that are in dispute and that will be dealt with by the arbitration, and also to make clear the time and place of the arbitration, and an estimate of the likely time that will be needed for the arbitration. The notice must also contain details as to the likely costs of the arbitration.

Regulation 67H

This regulation deals with the costs of arbitration. It provides that the costs of an arbitration are to be shared equally between the parties to an arbitration unless the parties otherwise agree in writing. Where an arbitration agreement is not entered into, the parties must consent in writing to the payment of the arbitrator's fees before the arbitration can proceed. If the parties do not consent in writing to the payment of the fees before the arbitration starts the arbitrator can proceed no further with the arbitration. In the case of section 19D arbitration the arbitrator must refer the matter back to the court that first ordered the arbitration.

Regulation 671

This regulation specifies the duties of arbitrators. That is, the arbitrator is to determine the issues in dispute between the parties according to the Family Law Act 1975. The arbitrator is also required to conduct the arbitration in accordance with the common law principles of procedural fairness, including giving parties a fair opportunity to be heard and to respond to the issues raised by the other side. There is also a duty to disclose whether an arbitrator forms a bias against one of the parties during the arbitration.

Regulation 67J

This regulation provides a standard form of oath or affirmation which an arbitrator must make before an arbitration. The oath declares that the arbitrator will not disclose any communication or admission made to the arbitrator in his or her capacity as arbitrator, unless the arbitrator reasonably believes such disclosure to be necessary for the reasons set out in the regulation.

Regulation 67K

This regulation provides that the arbitrator may suspend the arbitration (or in the case of a court-ordered arbitration, may refer a matter back to the court) where a party does not comply with a procedural direction given by the arbitrator.

Regulation 67L

This regulation provides that an arbitrator must terminate an arbitration, or, for an arbitration under section 19D, refer the matter back to the court, if the arbitrator considers that a party does not have capacity to take part in the arbitration. That is, if the person does not understand the nature of the arbitration, or is incapable giving adequate instruction to his or her representative, or satisfactorily appear in person at the arbitration.

Regulation 67M

This regulation provides that a party, to arbitration may appear in person, or be represented by a legal practitioner.

Regulation 67N

This regulation sets out the powers of an arbitrator to require persons to attend an arbitration to give evidence, produce documents, or give evidence and produce documents. The arbitrator has such powers in both court-ordered consensual arbitration and private arbitration.

The regulation also provides that a party to arbitration may apply to the court for the issue of a subpoena requiring a person, including persons not party to the arbitration, to give evidence, produce documents or give evidence and produce documents. Such an application must be made in accordance with Form 3 of the Family Law Rules 1984.

Regulation 670

This regulation provides that the arbitrator will not be bound by the rules of evidence, if the parties so agree.

Regulation 67P

This regulation provides that an arbitrator must make an award at the end of arbitration. The arbitrator must set out the reasons for the decision and indicate the evidence upon which the findings of fact are based when making the award. Copies of awards must be provided to the parties, and if the arbitration was under section 19D, the arbitrator must inform the court that an award has been made.

Regulation 67Q

An application to register an award made in court ordered consensual and private arbitration must be made in accordance with Form 8, and served on each other party to the award. On being served with a copy of the application, a party may bring to the attention of the court a reason why the award should not be registered by, for example, filing an affidavit to that effect within 28 days of service. If there is no reason given to not register the award then the court must register it. If there is a reason given then the court must decide whether to nonetheless register the award after giving the parties an opportunity to be heard.

Regulation 67R

The court in which an award is registered must give parties to the arbitration notice of the date and place of registration of the award.

Regulation 67S

This regulation provides that a party to a registered award may apply for enforcement as if it were an order under Part VIII of the Act. Part VIII deals with property, spousal maintenance and maintenance agreements.

Regulation 67T

Where the court (on application by one of the parties) makes a decree on questions of law relating to a registered award, the party who registered the award is also responsible for registering the decree. An application to register the decree must be made in accordance with Form 9.

Item 9 - Title of Part 5, Division 3, Subdivision 4

This amends the title of Part 5, Division 3, Subdivision 4 of the Regulations from 'Advertising: approved arbitrators' to 'Advertising: arbitrators'.

Item 10 - Regulation 73 heading

This amends the title of Regulation 73 from 'Content of advertising - approved' to 'Content of advertising -arbitrator'.

Item 12 - Forms

This item sets out new Form 6 - application for arbitration, Form 7 - application relating to private arbitration, Form 8 - application to register arbitration award and Form 9 application to register decree affecting registered arbitration award.