EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 182

 

Issued by Authority of the Attorney-General

 

Family Law Act 1975

 

Family Law Amendment Regulations 2008 (No. 2)

 

Section 125 of the Family Law Act 1975 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Subsection 10A (1) of the Act provides that the regulations may prescribe Accreditation Rules. These are rules relating to, among other things, the accreditation of persons as family dispute resolution practitioners. Subsection 10A (2) of the Act provides examples of matters the Accreditation Rules may deal with, such as the standards that are to be met by persons who seek to be accredited and how accreditation is to be recognised.

The purpose of the Regulations is to repeal the sections of the Family Law Regulations 1984 (the Principal Regulations) that will either be consolidated into, or are no longer required, due to the proposed Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (the New Regulations). The New Regulations are the subject of a separate Minute.

The Regulations repeal the following provisions from the Principal Regulations: Parts 4A, 4B and 4C dealing with accreditation and registration of family dispute resolution practitioners and the listing of organisations; regulation 3AA, dealing with the definition and requirements of supervised family dispute resolution which are no longer be required after Parts 4A, 4B and 4C are repealed; regulation 83, which was a temporary (transitional) arrangement which expired on 1 July 2007; and Part 5, Division 1 dealing with family dispute resolution practitioners which is replicated in the New Regulations.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Schedule 1 of the Regulations commence on 1 January 2009. It repeals parts of the Principal Regulations that have been moved to the New Regulations (commencing 1 January 2009) to avoid having identical provisions relating to the work of family dispute resolution practitioners operating at the same time. Schedule 2 commences on 1 July 2009 and repeals provisions in the Principal Regulations relating to accreditation and registration of practitioners (as those are replaced by the New Regulations from 1 July 2009). The different commencement dates allow practitioners to continue to be accredited and registered under the Principal Regulations prior to
1 July 2009, but also means that practitioners can be progressively registered as they meet the new requirements from 1 January 2009.

Details of the New Regulations are as follows:

Regulation 1 – Name of Regulations

Regulation 1 provides that the title of these regulations is the Family Law Amendment Regulations 2008 (No. 2).

Regulation 2 – Commencement

This provides for the Regulations to start on 1 January 2009 or on 1 July 2009.

Regulations 1 to 3 and Schedule 1 commence on 1 January 2009. Schedule 1 repeals the parts of the Principal Regulations that are moved to the New Regulations which commence on 1 January 2009. These Parts relate to the work of family dispute resolution practitioners, issuing a certificate and the certificate itself. This avoids having identical provisions operating at the same time. The other changes in Schedule 1 allow the changes to titles and numbering necessary to ensure the Principal Regulations flow logically after the removal of these parts.

Schedule 2 commences on 1 July 2009. Schedule 2 repeals the parts of the Principal Regulations (Parts 4A, 4B and 4C) relating to the accreditation and registration of family dispute resolution practitioners. Repealing these parts on 1 July 2009 allows the Principal Regulations to continue to operate in parallel with the New Regulations. This means that family dispute resolution practitioners can continue to be accredited and registered under the Principal Regulations before 1 July 2009. The operation of the New Regulations means that practitioners can be progressively registered under these as they meet the new requirements. This will allow a smoother transition to the new accreditation requirements.

Regulation 3 – Amendment of Family Law Regulations 1984

This Regulation provides for the amendment of the Principal Regulations as set out in Schedules 1 and 2.

Schedule 1 – Amendments commencing on 1 January 2009

Item [1] – Regulation 12CAA Certificate by family dispute resolution practitioner

This item repeals regulation 12CAA, dealing with the form of certificate to be used by family dispute resolution practitioners as it is included in the New Regulations at regulation 27.

Item [2] - Part 5, heading

This heading to Part 5 of the Principal Regulations is changed to reflect the removal of the provisions dealing with family dispute resolution. The heading reads: ‘Part 5 Arbitration’ (rather than Part 5 Family Dispute Resolution and Arbitration).

Item [3] – Part 5, Division 1

Division 1 of Part 5 of the Principal Regulations provides for the assessment of suitability for family dispute resolution by a practitioner, family dispute resolution certificates, information to be provided before family dispute resolution commences and practitioner obligations. This Part of Division 1 has been moved to the New Regulations at Part 7. This allows for the New Regulations to be consolidated to include all aspects relating to family dispute resolution which are spread out in several parts of the Principal Regulations.

Item [4] – Part 5, Division 2, heading

To ensure numbering and heading consistency, this removes the Division 2 heading.

Item [5] – Regulation 67A, heading

This heading to regulation 67A of the Principal Regulations is changed to reflect the removal of Division 1 and reads: ‘67A Definitions for Part 5’ (rather than Definitions for Division 2).

Item [6] – Regulation 67A

To reflect the removal of Division 1, the word ‘Division’ is removed and replaced by the word ‘Part’.

Item [7] – Schedule 7A

Schedule 7A prescribes the form for the certificate issued by a family dispute resolution practitioner under subsection 60I (8) of the Act. Item 7 removes the prescribed form from the Principal Regulations. The prescribed form is included in the New Regulations at Schedule 1.

Schedule 2 – Amendments commencing on 1 July 2009

Item [1] – Regulation 3, definitions of accredited family dispute resolution practitioner, family dispute resolution applicant, Family Dispute Resolution Register and supervised family dispute resolution

This item repeals definitions in the Principal Regulations that are no longer required due to the repeal of Parts 4A, 4B and 4C by item [3] below.

accredited family dispute resolution practitioner: this definition is no longer required in the Principal Regulations as the accreditation of family dispute resolution practitioners is dealt with in the New Regulations.

family dispute resolution applicant: this definition relates to registration in the Family Dispute Resolution Register, which is in Part 4B of the Principal Regulations, a part which has been repealed.

Family Dispute Resolution Register: this refers to the Register established and maintained in Part B, regulation 59A of the Principal Regulations. All aspects of registration of practitioners incorporated in Part 4B are repealed.

Supervised family dispute resolution: this refers to the meaning given in regulation 3AA of the Principal Regulations, which is repealed in Item 2 below.

Item [2] – Regulation 3AA Supervised family dispute resolution

This item repeals the definition of ‘supervised family dispute resolution’ which is no longer required due to the repeal of Parts 4A, 4B and 4C.

Item [3] – Parts 4A, 4B and 4C

Parts 4A, 4B and 4C of the Principal Regulations (which expire on 1 July 2009) are repealed by this item leaving the new Regulations as the only way to become accredited as a family dispute resolution practitioner from 1 July 2009.

Item [4] – Regulation 83

This item repeals regulation 83 of the Principal Regulations. This Regulation was a temporary (transitional) arrangement which expired on 1 July 2007. Regulation 83 has been obsolete since 1 July 2007.