EXPLANATORY STATEMENT

 

SELECT LEGISLATIVE INSTRUMENT 2010 No. 255

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

 

FAMILY LAW ACT 1975

 

FAMILY LAW AMENDMENT REGULATIONS 2010 (No. 4)

 

Subsection 125(1) 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 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 Regulations amend the Family Law Regulations 1984 (the Principal Regulations) to reflect amendments to the Status of Children Act 1978 (Qld) and the commencement of the Surrogacy Act 2010 (Qld) and the Relationships Register Act 2010 (NSW).

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

The Regulations commence on the day after the Regulations were registered under the Legislative Instruments Act 2003.

In particular, the Regulations:

·         update the list of state and territory laws prescribed for the rules in the Act relating to the parentage of children born through artificial conception procedures;

·         prescribe laws in Queensland to recognise court orders determining the parentage of children born under surrogacy arrangements;

·         prescribe laws in New South Wales providing for the registration of relationships, and certain kinds of relationships registered under those laws, for the purpose of the definition of ‘de facto relationship’ in the Act; and

·         prescribe laws in New South Wales providing for the registration of relationships, to enable de facto couples who have registered their relationship under those laws to satisfy the requirements for invoking the jurisdiction of the Family Court for making a property settlement or maintenance order under the Act.

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 2010 (No. 4).

 

Regulation 2 – Commencement

Regulation 2 provides for the Regulations to commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

Regulation 3 - Amendment of the Family Law Regulations 1984

Regulation 3 provides that the Family Law Regulations 1984 (the Principal Regulations) are amended as set out in the Schedule.

Schedule – Amendments

Item [1]: Regulation 12BC, table

This item amends regulation 12BC to ensure that the Relationships Register Act 2010 (NSW) is prescribed as the relevant law and a relationship registered under section 4 of that Act is prescribed as the kind of relationship for the purposes of the definition of ‘de facto relationship’ in paragraph 4AA(2)(g) of the Family Law Act 1975.

This ensures that if a couple living together in New South Wales on a genuine domestic basis is registered on the New South Wales Relationships Register, this may be taken into account in determining whether they are in a de facto relationship for the purposes of the Family Law Act 1975.

Item [2]: Regulation 12C, table, item 3

This item substitutes references in regulation 12C to subsections 14A, 15, 16 and 17 of the Status of Children Act 1975 (Qld) with references to subsections 17, 18, 19C, 19D and 19E of that Act. The amendments take account of the renumbering of the provisions in the Status of Children Act 1978 (Qld).

This ensures that parents of children born to married or de facto couples through artificial conception procedures in Queensland are recognised as parents for the purposes of the Family Law Act 1975.

Item [3]: Regulation 12CA, table, item 2

This item substitutes a reference in regulation 12CA to section 18AB in the Status of Children Act 1975 (Qld) with a reference to section 23 of that Act. The amendment takes account of the renumbering of the provisions in the Status of Children Act 1978 (Qld).

This ensures that women who give birth to a child in Queensland, as a result of the carrying out of an artificial conception procedure, are considered the child’s mother for the purposes of the Family Law Act 1975.

Item [4]: Regulation 12CAA

This item amends regulation 12CAA to prescribe section 22 of the Surrogacy Act 2010 (Qld).

This ensures that court orders determining the parentage of children born under surrogacy arrangements in Queensland are recognised for the purposes of the Family Law Act 1975.

Item [5]: Regulation 15AB, table

This item amends regulation 15AB to prescribe the Relationships Register Act 2010 (NSW) for the purposes of paragraph 90SB(d) of the Family Law Act 1975.

This ensures that couples living in New South Wales on a genuine domestic basis whose relationship has been registered on the New South Wales Relationships Register, are recognised as living in a de facto relationship for the purposes of sections 90SB, 90SE, 90SG and 90SM of the Family Law Act 1975. Under these sections the court may, following the breakdown of a de facto relationship, make an order relating to maintenance or altering property interests between the de facto couple.

The Regulations incorporate by reference the Relationships Register Act 2010 (NSW), which sets out the requirements for registration of relationships in New South Wales.

The Relationships Register Act 2010 (NSW) may be viewed at the following website:

http://www.legislation.nsw.gov.au/maintop/view/inforce/act+19+2010+cd+0+N

A copy of the Act can also be purchased from Salmat, a print-on-demand and mail order service, located at 2 Military Road, Matraville, NSW 2036. Contact details for Salmat are: Telephone: 1300 656 986, facsimile: 02 9311 1076 and e-mail: bookshop@salmat.com.au.

 

Consultation on the content of the Regulations was undertaken under section 17 of the

Legislative Instruments Act 2003 with the Queensland Department of Justice and the New South Wales Department of Justice and Attorney General.  The consultation occurred by way of exchange of correspondence and discussions between the Commonwealth and Queensland and New South Wales officials.