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FAMILY LAW AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 128 OF 2006)

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EXPLANATORY STATEMENT

 


Select Legislative Instrument 2006 No. 128

 

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

 

FAMILY LAW ACT 1975

 

FAMILY LAW AMENDMENT REGULATIONS 2006 (No. 1)

 

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Regulations is to amend the Family Law Regulations 1984 (the Principal Regulations) to:

 

*      reflect recent amendments to terminology within the divorce and child-related provisions of the Act;

 

*      prescribe matters for the purpose of new family dispute resolution procedures, and to reflect recent changes to related terminology, in the Act;

 

*      reflect amendments to the Act extending the jurisdiction of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia;

 

*      prescribe and update existing references to State and Territory laws and agencies for the purpose of the Act; and

 

*      make minor technical amendments to assist the functions of the Family Court of Australia under the Principal Regulations.

 

The Regulations commence on 1 July 2006, to coincide with the commencement of related amendments to the Act - in particular, those made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the Shared Parental Responsibility Act) and the Jurisdiction of Courts (Family Law) Act 2006 (the JCFL Act).

 

Most of the Regulations arise from changes made by the Shared Parental Responsibility Act and the JCFL Act.  However, some are consequential to changes in divorce terminology and technical amendments to the Act made by the Family Law Amendment Act 2005.

 

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2006 (No. 1).

Regulation 2 -- Commencement

Regulation 2 provides for the commencement of the Regulations on 1 July 2006.

Regulation 3 - Amendment of the Family Law Regulations 1984

Regulation 3 provides that Schedule 1 amends the Principal Regulations.

Schedule 1 -- Amendments

Item [1]: Subregulation 3(1), definition of conference, paragraphs (g) and (h)

The definition of 'conference', at subregulation 3(1) of the Principal Regulations is defined to include any attendance by a solicitor who is acting for a party to proceedings on a number of specified individuals, professionals and organisations. 

Paragraph (g) of this definition provides that such professionals include 'a welfare officer'.   This term is removed by the  Family Law Amendment (Shared Parental Responsibility) Act 2006  (Shared Parental Responsibility Act), as the functions currently performed by welfare officers will, in the future be performed by the new 'family consultants' (whose role is discussed below) or 'family counsellors', as appropriate.   

The term 'family counsellor' is introduced by the Shared Parental Responsibility Act. At present, the Family Law Act 1975 (the Act) uses the umbrella term 'primary dispute resolution' to cover almost every form of non-judicial intervention in family conflicts, including counselling, mediation and arbitration. The term is poorly understood in the community and its use in the legislation makes it difficult to differentiate specific types of intervention.

To assist understanding, the Shared Parental Responsibility Act removes the term 'primary dispute resolution' and clearly identifies more specific forms of intervention. As part of this change, the terms 'family and child counselling' and 'family and child mediation' will be removed from the Act and new terms 'family counselling' and 'family dispute resolution' will be introduced.  These services will be provided by 'family counsellors' and 'family dispute resolution practitioners', respectively.

'Family counselling' is defined in the Shared Parental Responsibility Act as a process in which a family counsellor helps one or more people to deal with personal or interpersonal issues relating to marriage, separation or divorce, including issues relating to the care of children.

It is appropriate to change the reference to 'welfare officer', at paragraph (g) of the definition of 'conference', to 'family counsellor' as the paragraph clearly envisages contact by a solicitor with professionals who provide relationship advice and assistance to people affected by separation or divorce.  This is a function properly performed by family counsellors.

Paragraph (h) of the definition of 'conference' currently refers to a person or organisation nominated under subsection 14C(3) or 44(1B) of the Act to assist in considering a reconciliation.

The Shared Parental Responsibility Act repeals section 14C of the Act, which necessitates the removal of the reference to that section in the Principal Regulations.

Subsection 44(1B) of the Act currently provides that an application for divorce shall not be filed (without the leave of the court) within two years of the date of the marriage unless a certificate is filed stating that the parties have considered reconciliation with the assistance of a family and child counsellor or other suitable person or organisation nominated by the Principal Mediator of the Family Court of Australia or an appropriate officer of a family court of a state. 

Subsection 44(1B) is amended by the Shared Parental Responsibility Act as follows:

*   'Family and child counsellor' is changed to 'family counsellor'.

*   The references to the 'Principal Mediator' and 'an appropriate officer of a family court of a state' are removed and replaced with a reference to 'a family consultant'.

This is for two reasons -- firstly, the term 'mediator' is removed from the Act by the Shared Parental Responsibility Act.  Secondly, the role of courts with jurisdiction under the Act in delivering counselling and dispute resolution is changing, with the courts' delivery of these services expected to decrease in parallel with the increasing provision of these services by the community sector.

As an element of this changing role, the courts are moving to a process in which a 'family consultant' will be assigned to each case in the court involving children, and will manage the case, providing a continuing service, as it moves through the court process.  Family consultants will be appointed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court.

*   The ability to nominate organisations or people is removed, to reflect the new role to be performed by family consultants. 

As a result, subsection 44(1B) will, from 1 July 2006, refer only to family counsellors and family consultants, rather than nominated people or organisations.  As family counsellors will be mentioned in paragraph (g) of the definition of conference, due to the amendment to that paragraph set out above, paragraph (h) of the definition is amended to refer only to attendance on a family consultant.   

Item [2]: Subregulation 3(1), definition of intervener

Item 2 amends the definition of 'intervener' in subregulation 3(1) of the Principal Regulations to reflect changes made by Schedule 5 to the Shared Parental Responsibility Act.  Schedule 5 to that Act inserted new Division 10 of Part VII of the Act providing for a child's interests in proceedings to be represented by an 'independent children's lawyer', replacing the previous term 'children's representative' in order to clarify the independent nature of that role.

Item [3]: Regulation 7 - Prescribed information about reconciliation (Act s 12C)

Section 12C of the Act as amended by the Shared Parental Responsibility Act provides that the regulations may prescribe information relating to services available to help with a reconciliation between the parties to a marriage, which is to be included in the documents to be provided under Part IIIA of the Act. These documents are required to be provided, in appropriate cases, by legal practitioners (under subsection 12E(2) of the Act); the principal executive officer of a court with jurisdiction under the Act (under subsection 12F(1) of the Act); and family counsellors, family dispute resolution practitioners and arbitrators (under subsection 12G(1) of the Act).

Item 3 inserts regulation 7 to prescribe that information relating to services available to help with a reconciliation between the parties to a marriage that is to be included in documents provided under Part IIIA of the Act must include information about family counselling and family dispute resolution services.

'Family counselling' is defined at section 10B of the Act as amended by the Shared Parental Responsibility Act as a process in which a family counsellor helps one or more people to deal with personal or interpersonal issues relating to marriage, separation or divorce, including issues relating to the care of children.

'Family dispute resolution' is defined at section 10F of the Act as amended by the Shared Parental Responsibility Act as a process in which a family dispute resolution practitioner, who is independent of all the parties involved in the process, helps people affected , or likely to be affected, by separation or divorce to resolve issues in dispute.

Attendance at family counselling or family dispute resolution services may assist married people to reconcile by providing a controlled forum in which personal or interpersonal issues, or matters in dispute, can be discussed and explored.

Item [4]: Regulation 8 - Appointment of family consultants (Act s 11B)    

Schedule 4 of the Shared Parental Responsibility Act distinguishes services available in the community from those provided by the courts, to assist in clarifying the different roles played by each in assisting people affected by separation and divorce.  One element of these changes is the introduction of 'family consultants' in the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia.

'Family consultants' will assist the court and the parties in cases involving children, and will provide a continuing service as the case moves through the court process. 

Section 11B of the Act as amended by the Shared Parental Responsibility Act provides that 'family consultants' will be appointed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court.  Family consultants appointed by the Family Court of Australia may be appointed under section 38N of the Act (as set out at paragraph (a) of the definition of 'family consultant' at section 11B of the Act), or appointed under the regulations (as set out at paragraph (c) of the definition of 'family consultant' at section 11B of the Act). 

Similarly, family consultants appointed by the Federal Magistrates Court may be appointed under subsection 99(1) of the Federal Magistrates Act 1999 (as set out at  paragraph (b) of the definition of 'family consultant' at section 11B), or appointed under the regulations (as set out at paragraph (c) of the definition of 'family consultant' at section 11B).  

The difference between these two forms of appointment is that family consultants appointed under section 38N of the Act or subsection 99(1) of the Federal Magistrates Act will be officers of the Family Court of Australia or the Federal Magistrates Court (as appropriate), engaged under the Public Service Act 1999, while those appointed under the Regulations are not officers of either court, and may be contracted or employed on a temporary basis. 

Regulation 8 allows the Chief Executive Officers of both the Family Court of Australia and the Federal Magistrates Court to appoint a person as a family consultant, pursuant to paragraph (c) of the definition of family consultant at section 11B of the Act. 

Item [5]: Regulation 10A

Item 5 redrafts regulation 10A of the Principal Regulations, compressing current subregulations 10A(1) and (2) into a single provision. Section 44A of the Act provides that proceedings for a divorce order may not be instituted in, or transferred to, a court of summary jurisdiction, other than a prescribed court. Subregulation 10A(2) of the Principal Regulations currently lists the courts prescribed for the purposes of section 44A of the Act.

In the redrafted paragraph 10A(a), the reference to 'the Registrar or a Deputy Registrar' is changed to 'the Principal Registrar or a Registrar', which more accurately reflects the definition of 'Family Law Magistrate of Western Australia' inserted in the Act by the Jurisdiction of Courts (Family Law) Act 2006.

In the redrafted paragraph 10A(b), the reference to 'established by section 18' is changed to 'constituted by section 4' to reflect consequential changes to the Magistrates Court Act 1930 of the Australian Capital Territory.

Items [6] to [9]: Paragraph 11(1)(a), paragraph 11(1)(b), subregulation 11(1A) and paragraph 11(7)(b)

Items 6 to 9 amends the Principal Regulations to reflect changes in terminology used in the Act in relation to divorce. Provisions in Part 10 of Schedule 1 to the Family Law Amendment Act 2005 changed the terminology used in relation to divorce, including the use of the term 'divorce order' in place of 'decree of dissolution of a marriage.'

Item [10]: New subregulation 11(7A)

Item 10 inserts new subregulation 11(7A) of the Principal Regulations to clarify that a holder of a concession card referred to in subparagraphs 11(7)(d)(i) and (ii) does not include a dependant of the holder of the card. Those subparagraphs provide for exemptions from the court fee payable in respect of certain proceedings under the Act.  

This change is necessary because many of the dependants are children who are covered by the exemption for minors and dependants who are not children are likely to be eligible for a waiver of fees or an exemption in their own right.

Item [11]: Regulation 12AC

Item 11 replaces regulation 12AC of the Principal Regulations, which prescribes a property limit for the Federal Magistrates Court.  In order to facilitate the development of a common registry between the Family Court of Australia and the Federal Magistrates Court, Schedule 7 of the Shared Parental Responsibility Act repealed section 45A of the Act to remove the property limit and capacity to prescribe a property limit for the Federal Magistrates Court.

The replacement regulation 12AC specifies a 'ceiling amount' under paragraph 46(1AA)(a)for the purposes of subsection 46(1) of the Act in relation to contested property proceedings in a court of summary jurisdiction.  Where the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, the replacement regulation specifies the amount of $700,000, above which all property proceedings must be transferred to an appropriate superior court unless the parties consent to a matter of greater value being heard in the lower court.

Item [12]: Paragraphs 12BA(a) and (b)

Regulation 12BA identifies 'child welfare officer' in each State and Territory for the purpose of the definition of that term in subsection 4(1) of the Act.  (While the current regulation mentions the definition in 'subsection 60D(1)' of the Act, item 42 of the Regulations amends the reference to this provision, which is now relocated in the Act to subsection 4(1)).  

Paragraphs 12BA(a) and (b) prescribe certain offices for New South Wales and Tasmania.   Item 12 amends these paragraphs to reflect changes to New South Wales law, and to more properly identify the relevant statutory officer in Tasmania.  

Care proceedings in New South Wales are now governed by the Children (Care and Protection) Act 1987 and the Children and Young Persons (Care and Protection) Act 1998.

The Adoption of Children Act 1965 and Adoption of Children Regulation 1995 have been repealed. These have been replaced by the Adoption Act 2000 (NSW) and the Adoption Regulation 2003 (NSW).  The Community Services (Complaints, Appeals and Monitoring) Act 1993 has also been repealed. 

In Tasmania, the relevant office bearer for the purpose of this regulation is the Secretary to the Department of Health and Human Services.

Item [13]: Regulations 12CC and 12CD

Item 13 amends regulation 12CC of the Principal Regulations, and insert new Regulation 12CD. 

Regulation 12CC is revised to reflect the amendments made to Division 11 of Part VII of the Act by Schedule 5 to the Shared Parental Responsibility Act.  The revised provision reflects:

*        the revised terms of the regulation making power in new subsection 68R(6) of the Act (the power was previously contained in repealed section subsection 69T(6) of the Act); and

*        that Division 11 of Part VII no longer refers to 'a Division 11 contact order.' 

Regulation 12CD is inserted in the Principal Regulations to prescribe State and Territory agencies for the purpose of subsection 69ZW(1) of the Act.

Section 69ZW, inserted by Schedule 3 to the Shared Parental Responsibility Act, gives the court the power to make an order in child-related proceedings requiring a prescribed agency to provide the court with documents or information about:

*           any notification of suspected abuse of the child or family violence affecting the child;

*           any assessments by the agency of investigations into a notification of that kind (or the finding or outcomes of those investigations); or

*           any reports commissioned by the agency in the course of investigating a notification.

Regulation 12CD provides that the prescribed agencies for each State and Territory are those listed at Schedule 9 (inserted by item 41 of the Regulations).  The prescribed agencies include the police departments and child welfare agencies of the States and Territories, as they are the agencies which conduct investigations and hold reports related to issues of child protection and family violence.  The intention is to ensure that where allegations of violence or abuse are made, the court has as much information as possible relevant to those allegations when making a determination about what is in the best interests of the child.

Items [14] and [15]: Regulation 14A, heading and Regulation 14A

Items 14 and 15 amends regulation 14A of the Principal Regulations to reflect that the provision in the Act dealing with the maximum period for a community service order under the Act was changed by Schedule 2 to the Shared Parental Responsibility Act from subsection 70NK(5) to subsection 70NFC(6).

Item [16]: Regulation 15A

Item 16 amends regulation 15A of the Principal Regulations so that an interlocutory decree (other than in relation to a child welfare matter) is a prescribed decree for the purpose of items 1 to 5 of the table in subsection 94AA(1) of the Act. It also amend sthe definition of 'child welfare matter' to ensure it is consistent with the definition set out in subregulation 15A(3).

Previously subsections 94AA(1) to (2C) dealt with leave to appeal being needed in cases of certain 'prescribed decrees' on appeal from the Family Court to the Full Court and from the Federal Magistrates Court to the Family Court. Regulation 15 prescribed those decrees.

Part 11 of  Schedule 1 to the Family Law Amendment Act 2005, which came into effect on 3 August 2005, repealed subsections 94AA(1) to (2C) and substituted new subsections 94AA(1) to (2A). These changes reorganised the content of the previous subsections.   As a result, provisions of regulation 15A no longer correspond to subsections 94AA(1) and (2A).  Item 16 of the Regulations corrects this problem.

In addition, the Jurisdiction of Courts (Family Law) Act 2006 amended the Act by adding item 5 to subsection 94AA(1) to require leave to appeal from the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia to the Family Court of Australia in relation to prescribed decrees.

Item [17]: After subregulation 16(3)

Item 17 inserts new subregulation 16(3A) of the Principal Regulations to clarify that a holder of a concession card referred to in subparagraphs 16(3)(b)(i) and (ii) does not include a dependant of the holder of the card. Those subparagraphs provide for exemptions from the court fee payable in respect of any appeal to the Family Court of Australia for certain concession card holders.   This change is necessary because many of the dependants of such card holders are children who are covered by the exemption for minors, and dependants who are not children are likely to be eligible for a waiver of fees or an exemption in their own right.

Item [18]: Subregulation 17(1)

Item 18 amends subregulation 17(1) of the Principal Regulations to replace reference to 'a decree (other than a decree for principal relief) to 'a decree (other than a divorce order or a decree of nullity of marriage)'.  This amendment reflects provisions contained in Part 10 of Schedule 1 of the Family Law Amendment Act 2005 which changed the divorce terminology under the Act.

Item [19]: Regulation 19

Item 19 amends regulation 19 of the Principal Regulations to mostly refer to Parts of entire Acts, rather than specific provisions of prescribed State and Territory laws, for the purpose of section 114AB of the Act.  These laws are intended to operate concurrently with provisions in the Act relating to the personal protection of parties to a marriage (section 114AB of the Act).  Revised regulation 19 is intended to ensure that the operation of the regulation remains current despite technical amendments to State and Territory laws.

At the same time, item 19 updates references to the applicable Queensland law, being the Domestic and Family Violence Protection Act 1989 (Qld) and the Peace and Good Behaviour Act 1982 (Qld), and the applicable Australian Capital Territory law, now known as the Domestic Violence and Protection Orders Act 2001, and to add reference to the Family Violence Act 2004 (Tas).

Item [20]: Part IIAAA - Protected names and symbols

Item 20 inserts new regulations 21AAA and 21AAB. 

Section 9A of the Act as amended by the Shared Parental Responsibility Act protects the names of services funded by the Government to provide assistance and support to people in the family law system (such as Family Relationship Centres), the domain names used to access these services online, and the symbols (or logos) used to identify these services.  This protection is needed in order to ensure that the public is not misled or deceived as to the nature of services being provided in the family law system.

As the field of family law is a highly emotional area in which people may not always be in a position to objectively or thoroughly assess the credentials of service providers, such consumer protection is of critical importance.

Subsection 9A(4) of the Act provides that the protected names and protected symbols will be prescribed in the regulations.  Regulation 21AAA provides that the list of protected names is set out at Schedule 10 to the Regulations.  Regulation 21AAB provides that the list of protected symbols is set out at Schedule 11 to the Regulations.    

Subsection 9A(1) provides that a person must not, without the Minister's written consent, use or apply a 'protected name' (or a name so closely resembling a protected name as to be likely to be mistaken for it) or a 'protected symbol' (or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it):

*   in relation to a business, trade, profession or occupation;

*   as the name, or part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft;

*   as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire;

*   in relation to goods or services; or

*   in the promotion, by any means, in the supply or use of goods and services.   

The penalty for a breach of subsection 9A(1) is 30 penalty units. (The value of a 'penalty unit' is set out at section 4AA of the Crimes Act 1914. It is currently $110. Thus the penalty for a breach of section 9A is a fine of $3,300).

Section 9A of the Act does not affect rights conferred by law on a person in relation to a registered trademark or a design registered under the Designs Act 2003, that was registered immediately before the commencement of regulations 21AAA or 21AAB.

Additionally, section 9A does not affect the use, or rights conferred by law relating to the use, of a name or symbol by a person in a particular manner if, immediately before the commencement of regulations 21AAA or 21AAB, that person:

*   was using that name or symbol in good faith in that manner, or

*   would have been entitled to prevent another person from passing off goods or services as the goods or services of the first-mentioned person, by means of the use of that name or symbol.

Items [21] and [22]: Subregulation 23(1) and paragraph 23(8)(a)

Schedule 8 to the Shared Parental Responsibility Act removed references to the terminology of 'residence' and 'contact' throughout the Act and substituted revised terminology. The term 'resides' has been replaced by 'lives with' and references to 'contact' have been replaced by the phrases 'spend time with' and 'communicate with'.

Items 21 and 22 revises subregulation 23(1) and paragraph 23(8)(a) of the Principal Regulations respectively to reflect this revised terminology. 

Subregulation 23(1) has also been restructured to reflect modern drafting style.

Items [23] to [25]: Paragraphs 24(1)(a) and 24(3)(a), and subregulation 24(7)

Item 23 amends paragraph 24(1)(a), item 24 amends paragraph 24(3)(a), and item 25 amends subregulation 24(7) of the Principal Regulations. 

The effect of these amendments is to replace reference to a 'residence order, contact order or specific issues order' with reference to 'parenting orders, other than child maintenance orders.' The revised references reflect changes to the terminology of 'contact', 'residence' and 'specific issues orders' made by Schedule 8 to the Shared Parental Responsibility Act.

Schedule 8 to the Shared Parental Responsibility Act removed references to 'contact' throughout the Act and replaced them with the phrases 'a child is to spend time with a person' and 'a child is to communicate with a person'.

Item 26: Part 5, Heading

Currently, Part 5 of the Principal Regulations is entitled 'Primary dispute resolution'.  To assist understanding, the Shared Parental Responsibility Act removed the term 'primary dispute resolution' and clearly identified more specific forms of intervention. Accordingly, the current heading of Part 5 of the Principal Regulations is no longer appropriate and is amended by this item.

The Shared Parental Responsibility Act also removed the terms 'family and child counselling' and 'family and child mediation' from the Act and introduced the new terms 'family counselling' and 'family dispute resolution'.  These services will be provided by family counsellors and family dispute resolution practitioners, respectively.

Item [27]: Part 5, Divisions 1 and 2

Item 27 repeals current Divisions 1 and 2 of Part 5 of the Principal Regulations and substitutes a new Division 1 that deals with family dispute resolution practitioners.  Current Division 1 of Part 5 of the Principal Regulations deals with family and child counsellors in regulations 57 and 58.

 

Current regulation 57 allows the Attorney-General to authorise a person to offer family and child counselling for the purposes of paragraph (c) of the definition of 'family and child counsellor' in subsection 4(1) of the Act.  No family and child counsellor has ever been authorised under this provision.  Reflecting this, the new definition of 'family counsellor', set out at section 10C of the Act as amended by the Shared Parental Responsibility Act does not allow a person to be authorised in this way.  As a result, regulation 57 is no longer needed.  

Current regulation 58 sets out the form of the oath or affirmation of secrecy that family and child counsellors are required to make current section 19 of the Act.  New section 10D of the Act (as amended by the Shared Parental Responsibility Act) combines these existing provisions to simplify the Act and, by moving the terms of the oath or affirmation into the primary legislation, emphasises the importance of confidentiality in family counselling.  Consequently, regulation 58 is no longer needed.

As a result of the repeal of regulations 57 and 58, Part 5 of the Principal Regulations will not contain any provisions relating to family counsellors.  To reflect the new content of Part 5 this item changes the title of that Part to 'Family Dispute Resolution and Arbitration'.  

Regulation 62: Family dispute resolution practitioners - assessment of family dispute resolution practicability

New regulation 62 largely reproduces current regulation 62, which requires community mediators and private mediators to undertake an assessment of the parties to the dispute to determine whether mediation is appropriate, prior to providing mediation.  New regulation 62 differs from the existing regulation 62 as follows:

Changed terminology

To assist understanding, the Shared Parental Responsibility Act removes the term 'primary dispute resolution' and clearly identifies more specific forms of intervention. As part of this change, the terms 'family and child counselling' and 'family and child mediation' will be removed from the Act and new terms 'family counselling' and 'family dispute resolution' will be introduced.  These services will be provided by family counsellors and family dispute resolution practitioners, respectively.

'Family dispute resolution' is defined as a process in which a family dispute resolution practitioner, who is independent of all the parties involved in the process, helps people affected , or likely to be affected, by separation or divorce to resolve issues in dispute.

The Shared Parental Responsibility Act does not distinguish between family dispute resolution practitioners who are employed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court, those who are employed by approved family dispute resolution organisations and those who meet the requirements specified in the Principal Regulations.  All family dispute resolution practitioners receive the same benefits, and are subject to the same requirements, when conducting family dispute resolution.  As a result, the references to 'community mediators' and 'private mediators' are removed from regulation 62 and replaced with 'family dispute resolution practitioners'. 

Conduct of the assessment     

 

Currently, regulation 62 requirements the mediator to personally conduct the assessment of the parties to determine whether mediation is appropriate.  New regulation 62 removes this requirement so that the assessment does not have to be conducted by the family dispute resolution practitioner personally.  Instead, the family dispute resolution practitioner must be satisfied that such an assessment has been conducted.  This reflects the operating practice of many dispute resolution services, by allowing the assessment to be conducted by specialist intake and assessment officers. 

 

Regardless of whether the assessment is conducted by a family dispute resolution practitioner or another person, it must include a consideration of the matters set out in subregulation 62(2).

Factors to be considered in the assessment

Subregulation 62(2) provides that the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by a number of specified matters.  These matters have been amended from those currently set out in subregulation 62(2), as follows:

 

*      Paragraph 62(2)(a)Paragraph 62(2)(a) provides that the one of the matters to be taken into account when considering the ability of any party to negotiate freely in the dispute is the history of family violence (if any) among the parties.  The substance of paragraph 62(2)(a) is unchanged in the new version of regulation 62.  The only change is that the reference to the provision in the Act that contains the definition of 'family violence' (that is, subsection 60D(1) of the Act) has been removed. That reference was unnecessary as, under paragraph 13(1)(b) of the Legislative Instruments Act 2003, expressions used in any legislative instrument (which includes regulations) have the same meaning as in the enabling legislation.  Accordingly, any reference to family violence in the Principal Regulations is automatically defined as it is in the Act. 

 

*      Paragraph 62(2)(c): Paragraph 62(2)(c) provides that one of the matters to be taken into account when considering the ability of any party to negotiate freely in the dispute is the equality of bargaining power among the parties.  The substance of paragraph 62(2)(c) is unchanged in the new version of regulation 62.  The only change is that the current examples of situations where there may not be an equality of bargaining power among the parties have been removed.  This has been done as the examples, which refer to a party being economically or linguistically disadvantaged in comparison with another party may be misleading, to the extent that they imply that the equality of bargaining power among the parties would necessarily be unequal in such circumstances.  In practice, such disadvantages result in unequal bargaining power among the parties such that family dispute resolution would not be appropriate.  For example, linguistic difficulties can be addressed by the involvement of an interpreter in the dispute resolution process.

Regulation 63 Information to be given to parties before family dispute resolution

New regulation 63 largely reproduces current regulation 63, which places an obligation on community mediators and private mediators to ensure that specified written information is provided to each party to the mediation at least one day before the mediation is conducted.  New regulation 63 differs from the existing regulation 63 as follows:

Changed terminology

To assist understanding, the Shared Parental Responsibility Act removes the term 'primary dispute resolution' and clearly identifies more specific forms of intervention. As part of this change, the terms 'family and child counselling' and 'family and child mediation' will be removed from the Act and new terms 'family counselling' and 'family dispute resolution' will be introduced.  These services will be provided by family counsellors and family dispute resolution practitioners, respectively.

 

As a result, the references to 'mediators' and 'mediation' are removed from regulation 63 and replaced with 'family dispute resolution practitioners' and 'family dispute resolution'. 

Specified information

Subregulation 63(1) sets out the information to be provided prior to family dispute resolution.  This information differs from that currently set out in subregulation 63(1), as follows:

 

Subparagraph 63(1)(b)(iii)

 

Current subparagraph 63(1)(b)(iii) provides that the written information to be provided prior to the mediation must refer to the requirements under Division 4 of Part VII of the Act to register a parenting plan in respect of the child.   This subparagraph has been removed as the requirement to register parenting plans was removed from the Act by the Family Law Amendment Act 2003.

 

Paragraph 63(1)(c)

 

Current paragraph 63(1)(c) provides that the written information to be provided prior to the mediation must set out that the mediator's role is to facilitate discussion between the parties in relation to the dispute and is not to advise the parties what to do in relation to each other, or to provide legal advice.  Currently, the family and child mediator's role specifically excludes the provision of advice.  As a result, dispute resolution processes that include the provision of advice (such as conciliation) are currently regarded as a form of 'family and child counselling'. This is problematic, as counselling and dispute resolution need to be clearly delineated in order to allow the successful introduction of compulsory dispute resolution (as included in the Shared Parental Responsibility Act).  The new definitions of 'family counselling' and 'family dispute resolution' introduced by the Shared Parental Responsibility Act achieve a clear differentiation of the two processes.  'Family dispute resolution' includes both facilitative and advisory processes.

As a result of the scope of family dispute resolution, that is, that it may involve the family dispute resolution practitioner providing advice to the parties, it would no longer be appropriate to tell parties that the family dispute resolution practitioner's role is only to facilitate discussion and not to provide advice.  As a result subparagraph 63(1)(c)(ii) is removed from the Principal Regulations.

However, a family dispute resolution practitioner is still not permitted to provide legal advice to the parties (except where the family dispute resolution practitioner is also a legal practitioner).  Accordingly, the requirement to the inability of the family dispute resolution practitioner to provide legal advice in the written information to be provided to parties to the family dispute resolution is retained at paragraph 63(1)(c).

 

Current paragraph 63(1)(e) and new paragraph 63(1)(e)

Current paragraph 63(1)(e) provides that the written information to be provided prior to the mediation must set out that mediation is not compulsory in order to commence proceedings in the Family Court.  This paragraph has been removed as it is no longer strictly accurate due to the operation of new section 60I of the Act as amended by the Shared Parental Responsibility Act.

Section 60I of the Shared Parental Responsibility Act provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with a court exercising jurisdiction under the Act for an order under Part VII of the Act.  (This requirement is subject to some exceptions, including in cases involving family violence or child abuse). 

There is a staged commencement of the requirement for people to attend a dispute resolution process before applying for a Part VII order. The three phases are set out in subsections 60I(2) to (6) of the Act. The reason for the staged commencement is to allow for the rollout of the Family Relationship Centres and the increased funding for dispute resolution services announced in the 2005-06 Federal Budget. This will ensure there are sufficient dispute resolution services to assist in meeting the demand.

Phase 1 is for proceedings filed from the commencement of the Shared Parental Responsibility Act, that is 1 July 2006 to 30 June 2007.  During this time, people who have a dispute about matters that may be dealt with by a parenting order must comply with the dispute resolution procedures relevant to a parenting order that are set out in the Family Law Rules 2004 (the Rules). Currently, Rule 1.05 provides that before starting a case, each prospective party to the case must comply with the pre-action procedures, set out in Part 2 of Schedule 1 to the Rules, which include attempting to resolve the dispute using dispute resolution methods.

This requirement will apply to all courts exercising jurisdiction under the Act, including the Federal Magistrates Court and State and Territory Courts, with such modifications as may be necessary.  It is intended that the penalties set out in the Rules for non-compliance or unreasonable non-compliance (such as case management consequences or cost orders) in clause 2 of Part 2 of the Rules will apply during Phase 1.

Under Phase 2 the requirement to attend dispute resolution will apply to applications for a Part VII order in relation to a child that are made on or after 1 July 2007 and before a date to be fixed by Proclamation (which is expected to be 30 June 2008) where none of the parties have previously applied for a Part VII order in relation to the child.

Under Phase 3, which will commence on a date to be fixed by Proclamation (which is expected to be 1 July 2008) the requirement to attend dispute resolution will apply to all applications for a Part VII order.

New paragraph 63(1)(e) requires details on the section 60I requirement to be included in the written information that is provided to parties prior to family dispute resolution.

 

Current paragraph 63(1)(h)

Current paragraph 63(1)(h) provides that the written information to be provided prior to the mediation must set out that under section 19M of the Act the mediator is immune from civil liability for anything said or done by him or her in the performance of his or her functions as a mediator. 

This paragraph has been removed as family dispute resolution practitioners no longer have immunity under the Act.

 

Current paragraph 63(1)(j) and new paragraph 63(1)(h)

New paragraph 63(1)(h) largely reproduces current paragraph 63(1)(j), which provides that the written information to be provided prior to the mediation must set out that under section 19N of the Act evidence of anything said, or an admission made, at mediation is not admissible in any court or in any proceedings before a person authorised by a law of the Commonwealth or a State or Territory, or by the consent of the parties, to hear evidence. 

The substance of section 19N will, to the extent that that section relates to family dispute resolution practitioners, appear at section 10J of the Act as amended by the Shared Parental Responsibility Act.  As a result, new paragraph 63(1)(h) refers to section 10J, rather than section 19N. 

Paragraph 63(1)(h) also clarifies that an admission or disclosure made in family dispute resolution that indicates that a child under 18 has been abused or is at risk of abuse may be admitted as evidence, unless there is sufficient evidence of the admission or disclosure available to the court from other sources.

 

Current paragraph 63(1)(k) and new paragraph 63(1)(i)

New paragraph 63(1)(i) reproduces the substance of current paragraph 63(1)(k), which provides that the written information to be provided by the mediator must set out the mediator's confidentiality and disclosure obligations.

The references in the current paragraph to 'community mediators' and 'private mediators' are removed and replaced by a reference to family dispute resolution practitioners. This change is needed as the Shared Parental Responsibility Act does not distinguish between family dispute resolution practitioners who are employed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court, those who are employed by approved family dispute resolution organisations and those who meet the requirements specified in the Principal Regulations.  All family dispute resolution practitioners receive the same benefits, and are subject to the same requirements, when conducting family dispute resolution. 

Currently family and child mediators authorised by approved organisations or the courts are required by section 19K of the Act to make on oath or affirmation of secrecy. The form of this oath or affirmation is set out at regulation 66 of the Principal Regulations.  Private mediators have a duty of confidentiality under regulation 67. This duty of confidentiality requires private mediators to adhere to the same requirements as set down in the oath in regulation 66 of the Principal Regulations.

Section 10H of the Act as amended by the Shared Parental Responsibility Act combines these existing provisions to simplify the Act and, by moving the terms of the oath or affirmation into the primary legislation, emphasise the importance of confidentiality.  As a result of these changes the references in current paragraph 63(1)(k) to section 19K of the Act and regulation 67 of the Principal Regulations are removed and replaced by the reference to section 10H of the Act. 

A Note has been added to regulation 63 to draw the attention of family dispute resolution practitioners to other information provision requirements imposed upon them by sections 12G and 63DA of the Act.

Section 12G of the Act as amended by the Shared Parental Responsibility Act obliges family dispute resolution practitioners (among others) who deal with a married person who is considering instituting proceedings for a divorce order, or financial or Part VII proceedings (i.e. proceedings about children), to give that person (and, in appropriate cases, that person's spouse) documents containing the information prescribed in the regulations pursuant to section 12C. Section 12C provides that the regulations may prescribe information relating to services available to help with a reconciliation between the parties to a marriage, which is to be included in the documents provided under Part IIIA of the Act as amended by the Shared Parental Responsibility Act. 

A family dispute resolution practitioner does not have to provide this document if he or she has reasonable grounds to believe that the person has already been given these documents, or if he or she considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.

Section 63DA of the Act as amended by the Shared Parental Responsibility Act sets out the obligations of advisers (which includes family dispute resolution practitioners) when they are giving advice to people in relation to parenting plans. It aims to assist people making parenting plans to understand what the plan may include, the effect of the plan and the availability of programs to assist people who experience difficulties with their agreements or who need to negotiate a change in an agreement.

Regulation 64 - Obligations of family dispute resolution practitioner -- general

New regulation 64 largely reproduces current regulation 64, which sets out the obligations of community mediators and private mediators when providing family and child mediation services under the Act. 

To assist understanding, the Shared Parental Responsibility Act removes the term 'primary dispute resolution' and clearly identifies more specific forms of intervention. As part of this change, the terms 'family and child counselling' and 'family and child mediation' will be removed from the Act and new terms 'family counselling' and 'family dispute resolution' will be introduced.  These services will be provided by family counsellors and family dispute resolution practitioners, respectively.

 

As a result, the references to 'mediators' and 'mediation' are removed from regulation 64 and replaced with 'family dispute resolution practitioners' and 'family dispute resolution'. 

 

Further, the Shared Parental Responsibility Act does not distinguish between family dispute resolution practitioners who are employed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court, those who are employed by approved family dispute resolution organisations and those who meet the requirements specified in the Regulations.  All family dispute resolution practitioners receive the same benefits, and are subject to the same requirements, when conducting family dispute resolution.  As a result, the references to 'community mediators' and 'private mediators' are removed from regulation 64 and replaced with 'family dispute resolution practitioners'. 

Current paragraph 64(d) has been amended to clarify that legal advice may be provided by family dispute resolution practitioners who are legal practitioners.

New paragraph 64(e), which provides that a family dispute resolution practitioner must not use information acquired from a family dispute resolution for personal gain or to the detriment of any person, reproduces the substance of current subregulation 65(2).  This provision has been moved as it is sets out a general obligation on family dispute resolution, rather than an obligation related to avoidance of conflict of interest, and is thus more appropriately situated in regulation 64, rather than regulation 65.  

Regulation 65 Obligations of family dispute resolution practitioner -- avoidance of conflict of interest  

New regulation 65 largely reproduces current regulation 65, which sets out the obligations of community mediators and private mediators to avoid conflicts of interest. 

To assist understanding, the Shared Parental Responsibility Act removes the term 'primary dispute resolution' and clearly identifies more specific forms of intervention. As part of this change, the terms 'family and child counselling' and 'family and child mediation' will be removed from the Act and new terms 'family counselling' and 'family dispute resolution' will be introduced.  These services will be provided by family counsellors and family dispute resolution practitioners, respectively.

 

As a result, the references to 'mediators' and 'mediation' are removed from regulation 65 and replaced with 'family dispute resolution practitioners' and 'family dispute resolution'.

 

Further, the Shared Parental Responsibility Act does not distinguish between family counsellors or family dispute resolution practitioners who are employed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court, those who are employed by approved family counselling and/or family dispute resolution organisations and those who meet the requirements specified in the Regulations.  All family counsellors and family dispute resolution practitioners receive the same benefits, and are subject to the same requirements, when conducting family dispute resolution.  As a result, the references to 'community mediators' and 'private mediators' are removed from regulation 65 and replaced with 'family dispute resolution practitioners'. 

 

New regulation 65 has also been restructured to make it easier to understand.

 

Item [28]: Part 5, Division 2A, heading

Item 5 of this Schedule replaces current Divisions 1 and 2 of Part 5 of the Principal Regulations with a new Division 1.  As a result of this change, this item changes current Division 2A of Part 5, which contains the regulations relating to arbitration, to Division 2 of Part 5, to ensure that the numbering of the divisions is sequential and easy to follow.

Item [29]: Regulation 67A, heading

Item 6 of this Schedule changes Division 2A to Division 2.  Consequently, this item changes the heading to regulation 67A to refer to the new title of this Division.

Item [30]: Regulation 67B, heading

The current heading of regulation 67B refers to the requirements for arbitrators to be prescribed under subsection 4(1) of the Act.  The Shared Parental Responsibility Act restructures the Act to group provisions relating to non-judicial interventions logically, by topic.  As a result of this restructure, the ability to prescribe requirements for arbitrators is now set out at new section 10M of the Act as amended by the Shared Parental Responsibility Act.  Accordingly, this item changes the reference to subsection 4(1) of the Act in the heading of regulation 67B to section 10M of the Act.      

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [31]: Regulation 67D, heading

Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'.  The Shared Parental Responsibility Act repeals these terms and replaces them with 'relevant property or financial arbitration' and 'section 13E arbitration', respectively.  As a result of this change to terminology, the reference to section 19D of the Act in the heading of regulation 67D is changed to section 13E of the Act. 

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [32]: Regulation 67E, heading

Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'.  The Shared Parental Responsibility Act repeals these terms and replaces them with 'relevant property or financial arbitration' and 'section 13E arbitration', respectively.

The Shared Parental Responsibility Act also restructures the Act to group provisions relating to non-judicial interventions logically, by topic.  As a result of this restructure the substance of current section 19E of the Act is reproduced in new section 13F of the Act as amended by the Shared Parental Responsibility Act.

Accordingly, this item removes the references to 'private arbitration' and 'Act s 19E' in the heading of regulation 67E and replaces them with 'relevant property or financial arbitration' and 'Act s13F', respectively.

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [33]: Regulation 67J

Current section 19L of the Act provides that an arbitrator must, before starting to perform the functions of an arbitrator, make an oath or affirmation in accordance with the form prescribed in the Regulations.  Current regulation 67J prescribes the form of that oath or affirmation.

In order to simplify the legislation, section 19L is removed from the Act by the Shared Parental Responsibility Act and the requirement for arbitrators to make an oath or affirmation is set out at regulation 67J, together with the form of that oath or affirmation.  As a result, this item removes the reference to section 19L of the Act from regulation 67J. 

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [34]: Regulation 67N, note

Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'.  The Shared Parental Responsibility Act repeals these terms and replaces them with 'relevant property or financial arbitration' and 'section 13E arbitration', respectively.

The Shared Parental Responsibility Act also restructures the Act to group provisions relating to non-judicial interventions logically, by topic.  As a result of this restructure the substance of current section 19E of the Act is reproduced in new section 13F of the Act as amended by the Shared Parental Responsibility Act.

Accordingly, this item removes the references to 'private arbitration', 'section 19D arbitration', 'subsection 19D(3)' and 'subsection 19E(1)'  in the note to regulation 67N and replaces them with 'relevant property or financial arbitration', 'section 13E arbitration', 'subsection 13E(2)' and 'section 13F', respectively.

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [35]: Regulation 67Q, heading

The Shared Parental Responsibility Act restructures the Act to group provisions relating to non-judicial interventions logically, by topic.  As a result of this restructure the ability to register an arbitration award with the court, which is currently set out at sections 19D and 19E of the Act will be set out at section 13H of the Act as amended by the Shared Parental Responsibility Act.  

As a result of this change to terminology, the reference to sections 19D and 19E in the heading of regulation 67Q is changed to section 13H. 

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [36]: Part 5, Division 3

Currently section 19Q of the Act allows regulations to be made to prescribe the conditions under which counselling, mediation and arbitration services may be advertised in the registries of the Family Court of Australia.  The related regulations are set out in Division 3 of Part 5 of the Principal Regulations. 

The Shared Parental Responsibility Act repeals section 19Q of the Act, as advertising in the Court's registries properly comes within the administrative responsibility of the Court, and does not require legislative dictation.  Consequently, this item repeals Division 3 of Part 5 of the Principal Regulations.

Item [37]:  New regulations 82 and 83

Item 37 inserts new regulations 82 and 83.  In order to ensure the quality of services delivered by family counsellors, family dispute resolution practitioners and workers in Government funded children's contact services, competency-based Accreditation Rules are currently being developed by the Community Services and Health Industry Skills Council. 

To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' and 'family dispute resolution' under the Shared Parental Responsibility Act) without interruption on the introduction of the Accreditation Rules a transition period is provided.

Item 118 of Schedule 4 to the Shared Parental Responsibility Act provides that the transition period begins at the time Part 3 of Schedule 4 to the Shared Parental Responsibility Act commences (which is expected to be proclaimed as 1 July 2006) and ends on the day prescribed by regulations made for the purpose of this definition. 

Regulation 82 prescribes the end date for the transition period as 30 June 2009.

Currently, in order to be a 'family and child mediator', as defined at subsection 4(1) of the Act a person must:

*   paragraph (a) - be employed or engaged by the Family Court or a Family Court of a State to provide family and child mediation services;

*   paragraph (b)  - be authorised by an approved mediation organisation to offer family and child mediation on behalf of the organisation; or

*   paragraph (c) - be a person who otherwise offers family and child mediation.

Regulations 60 and 61 of the Principal Regulations impose criteria for the qualifications, training and experience required of those mediators who do not fall within paragraphs (a) and (b) of the definition of 'family and child mediator'.

New regulation 83 reproduces the substance of current regulations 60 and 61, with appropriate changes to terminology to reflect the amendments made by the Shared Parental Responsibility Act.  As this provision is transitional in nature, it is appropriate that it appears in Part VI of the Principal Regulations, which deals with repeals, savings and transitional matters.

In order to ensure the quality of services delivered by family counsellors, family dispute resolution practitioners and workers in Government funded children's contact services, competency-based Accreditation Rules are currently being developed by the Community Services and Health Industry Skills Council. 

To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' and 'family dispute resolution' under the Shared Parental Responsibility Act) without interruption on the introduction of the Accreditation Rules, a transition period is provided.

During this transition period, people who meet the requirements currently set out at regulations 60 and 61 of the Principal Regulations, or who meet those requirements in the first twelve months of the transition period, will be taken to be family dispute resolution practitioners under the Act.

Item [38]: Schedule 1, Form 7, heading

Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'.  The Shared Parental Responsibility Act repeals these terms and replaces them with 'relevant property or financial arbitration' and 'section 13E arbitration', respectively.

To reflect this change, this item changes the title of Form 7 to refer to 'relevant property and financial arbitration' rather than 'private arbitration'.

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [39]: Schedule 1, Form 7

Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'.  The Shared Parental Responsibility Act repeals these terms and replaces them with 'relevant property or financial arbitration' and 'section 13E arbitration', respectively.

To reflect this change, this item changes each reference to 'private arbitration' in Form 7 to 'relevant property and financial arbitration'.

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

Item [40]: Schedule 5

Item 40 revises Schedule 5, which lists State and Territory child welfare laws that are prescribed for the purposes of the definition of this term in subsection 4(1) of the Act.  The definition was previously located in subsection 60D(1) of the Act, but has been relocated by amendments made in the Shared Parental Responsibility Act, and this change is reflected in the revised Schedule.

The revised Schedule 5 prescribes the whole of each applicable State and Territory law in its entirety, rather than specific provisions of each Act, as was previously the case.  This is to ensure that the operation of the Schedule remains current despite technical amendments to State and Territory laws. 

The revised Schedule also updates references to applicable child welfare laws in New South Wales, Queensland, and Tasmania.

Item [41] - Schedules 8 to 11

Item 41 redrafts Schedule 8 to the Principal Regulations, and inserts new Schedules 9, 10 and 11.

Schedule 8 is applicable to regulation 12BB of the Principal Regulations, and prescribes State and Territory laws dealing with 'family violence orders' for the purpose of the definition of that term in subsection 4(1) of the Act. 

The revised Schedule 8 prescribes the whole of each applicable State and Territory law in its entirety, rather than specific provisions of each Act, as was previously the case.  This is to ensure that the operation of the Schedule remains current despite technical amendments to State and Territory laws. 

The revised Schedule also updates references to applicable child welfare laws in Queensland and Tasmania.

Schedule 9  Evidence relating to child abuse or family violence - prescribed State or Territory agencies

Item 41 also inserts Schedule 9 in the Principal Regulations as mentioned in new regulation 12CD, inserted by item 13 of the Regulations.   Regulation 12CD provides that the prescribed agencies for each State and Territory are those listed at Schedule 9.

Schedule 10  Protected Names

Item 41 also inserts Schedule 10 in the Principal Regulations for the purpose of new regulation 21AAA (see item 20 of the Regulations).

Section 9A of the Act as amended by the Shared Parental Responsibility Act protects the names of services funded by the Government to provide assistance and support to people in the family law system (such as Family Relationship Centres), the domain names used to access these services online, and the symbols (or logos) used to identify these services.  This protection is needed in order to ensure that the public is not misled or deceived as to the nature of services being provided in the family law system.

As the field of family law is a highly emotional area in which people may not always be in a position to objectively or thoroughly assess the credentials of service providers, such consumer protection is of critical importance.

Subsection 9A(4) of the Act provides that the protected names and protected symbols will be prescribed in the regulations.  Regulation 21AAA provides that the list of protected names is set out at Schedule 10 to the Regulations.  This item sets out the list of protected names, which are Family Relationship Centre, Family Relationship Advice Line, Family Relationships Online and different permutations of internet domain names relating to these services. 

Family Relationship Centres, the Family Relationship Advice Line and Family Relationships Online are new services that will be funded by the Australian government.  Family Relationship Centres will be a source of information for families at all stages, including people starting relationships, those having relationship difficulties, and those affected when families separate.  Centres will also offer individual, group and joint sessions to help separating families make workable arrangements for their children without having to go to court. 

The Family Relationship Advice Line and Family Relationships Online will provide information on family relationship issues, advice on parenting arrangements after separation or referral to other local family services.

Schedule 11  Protected Symbols

Section 9A of the Act as amended by the Shared Parental Responsibility Act assists in protecting the names of services funded by the Government to provide assistance and support to people in the family law system (such as Family Relationship Centres), the domain names used to access these services online, and the symbols (or logos) used to identify these services.  This protection is needed in order to ensure that the public is not misled or deceived as to the nature of services being provided in the family law system.

As the field of family law is a highly emotional area in which people may not always be in a position to objectively or thoroughly assess the credentials of service providers, such consumer protection is of critical importance.

Subsection 9A(4) of the Act provides that the protected names and protected symbols will be prescribed in the regulations.  Regulation 21AAB provides that the list of protected symbols is set out at Schedule 11 to the Regulations.  This item sets out the protected symbols, which will be used by Family Relationship Centres, the Family Relationship Advice Line and Family Relationships Online.

Family Relationship Centres, the Family Relationship Advice Line and Family Relationships Online are new services that will be funded by the Australian government.  Family Relationship Centres will be a source of information for families at all stages, including people starting relationships, those having relationship difficulties, and those affected when families separate.  Centres will also offer individual, group and joint sessions to help separating families make workable arrangements for their children without having to go to court. 

The Family Relationship Advice Line and Family Relationships Online will provide information on family relationship issues, advice on parenting arrangements after separation or referral to other local family services. 

Item [42]: Further amendments -- definitions

The definitions in Part VII of the Act were moved, by Schedule 9 to the Shared Parental Responsibility Act, to the general definitions section at subsection 4(1) of the Act.

There are a number of amendments to the Principal Regulations that are consequential on this change.

The majority of definitions have been moved from subsection 60D(1) of Part VII of the Act.  Item 42 amends references to 'subsection 60D(1)' in a number of provisions of the Principal Regulations to 'subsection 4(1)'. The relevant provisions that currently refer to subsection 60D(1) and are amended by item 12 are: subregulations 12B(1) and (2), regulations 12BA and 12BB and regulation 21C.

Item 42 also amends a reference in subparagraph 14(a)(i) of the Principal Regulations to reflect that the definition of 'overseas child order' in section 70F of the Act has also been moved to the general definition provision in subsection 4(1) of that Act.

Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'.  The Shared Parental Responsibility Act repeals these terms and replaces them with 'relevant property or financial arbitration' and 'section 13E arbitration', respectively.

The Shared Parental Responsibility Act also restructures the Act to group provisions relating to non-judicial interventions logically, by topic.  As a result of this restructure the substance of some current sections is reproduced in new sections of the Act.

To reflect these changes, this item contains a table that replaces references in the Regulations to arbitration terms and sections in the current Act with those terms and sections that will appear in the Act as amended by the Shared Parental Responsibility Act.

No substantive changes have been made to the arbitration provisions of the Act or the Principal Regulations.

 

Consultation on the content of the Regulations was undertaken under section 17 of the Legislative Instruments Act 2003 with the Family Court of Australia, the Family Court of Western Australia, the Federal Magistrates Court of Australia, the Department of Justice in each State and Territory and the Department responsible for child welfare in each State and Territory.  The consultation involved exchange of correspondence and discussions.

 



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