Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW REGULATIONS (AMENDMENT) 1996 NO. 265

STATUTORY RULES 1996 No. 265

Issued by the Authority of the Attorney-General and Minister for Justice

Family Law Act 1975

Family Law Regulations (Amendment)

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

The purposes of the amendments to the Family Law Regulations (the Regulations) are to give effect to New South Wales amendment of its referral of power to the Commonwealth prescribing specific provisions of New South Wales legislation as child welfare laws pursuant to the Family Law Act 1975, to provide new arrangements for parentage testing procedures under the Act by repealing existing Part IIA of the Regulations and substituting a new Part IIA, to amend Schedule 5 of the Regulations to specify the now relevant child welfare laws for the State of New South Wales, as set out in its referral legislation and, finally, to amend Schedule 8 to set out the Queensland laws prescribed for the purposes of the definition of 'family violence order' in subsection 60D(1) of the Act.

The Standing Committee of Attorneys-General agreed on 29 June 1990 to amend State referral of powers legislation and section 69ZK (prior to 11 June 1996 section 60H) of the Commonwealth Family Law Act 1975 to remedy the jurisdictional gap between the Family Court and State child welfare courts where neither court has power to make effective orders in relation to children subject to State child welfare laws. It was further agreed to amend States referral of powers legislation in relation to maintenance for children subject to State child welfare legislation.

The Commonwealth amended the Act in 1992 to give effect to the decision.

At present the Commonwealth provisions only operate in respect of the Territories and, from 1 November 1995, the State of Tasmania.

On 11 September 1996 the NSW passed the necessary amendments to its Commonwealth Powers (Family Law - Children) Act 1986 to give effect to the agreement for that State. Accordingly, that State has now requested a Proclamation pursuant to subsection 69ZF(1) of the Act to enable implementation of the agreement, It has been agreed that proclamation of commencement of its amendments to the referral legislation and the Commonwealth Proclamation should be 1 January 1997. Because the referral legislation changes references to certain New South Wales legislation the Regulations need to also commence on 1 January 1997.

Section 69W of the Act enables a Court to order parentage testing where the parentage of the child is in issue. Section 69ZB provides that the regulations may make provision relating to the carrying out of parentage testing procedures under a Court Order and for the preparation of reports relating to the information obtained as a result of carrying out such procedures. Part IIA of the Regulations makes provision for the medical procedures and reports. Regulation 21F of the Regulations provides that a person may be appointed by the Attorney-General to conduct parentage tests and prepare reports for the Court.

Following extensive negotiations with the National Association of Testing Authorities (NATA) arrangements have been concluded whereby NATA will accredit laboratories to undertake parentage testing pursuant to specified criteria and using standards of practice that have been evaluated as entitling the laboratory to be so accredited The new Part 11A of the Regulations makes provision for this new procedure for the undertaking of ordered parentage testing and for the results of that testing to be admissible as evidence in proceedings under the Act.

Subsection 60D(1) of the Act defines a "child welfare law" as a law of a State or Territory prescribed, or included in a class of laws in a State prescribed, for the purposes of the definition. Subregulation 12B(2) of the Regulations provides that for the purposes of the definition of child welfare law each law specified in Schedule 5 of the Regulations is a prescribed law. The New South Wales amendment of its referral legislation has identified the relevant child welfare laws of that State for the purposes of Schedule 5. Schedule 5 is amended by omitting items 5.1 to 5.6 which relate to New South Wales laws, and inserting new items 5.1 to 5.5 which corresponds to the new laws under the New South Wales referral legislation.

Section 60D(1) of the Act defines "family violence order" as an order (including interim order) made under a prescribed law of a State to protect a person from family violence. Regulation 12BB of the Regulations provides that for the purposes of the definition of child welfare law each law specified in Schedule 8 of the Regulations is a prescribed law. Item 3 of Schedule 8 refers to sections 20 and 31 of the Queensland Domestic Violence (Family Protection) Act 1989. The prescription of those sections does not cover a number of other provisions under which orders can be made and that State has requested that additional provisions be prescribed. The amendment to Schedule 8 gives effect to that request and provides much broader protection to victims of family violence.

NOTES ON REGULATIONS

Regulation 1 provides for the commencement of the amending Regulations on 1 January 1997.

Regulation 2 is a formal provision.

Regulation 3 omits and substitutes Part HA of the Regulations dealing with parentage testing procedures and reports. In doing so it divides the Part into Divisions as follows: Division 1 General (Regulations 21A - 21B) Division 2 - Collection, storage and testing of samples (Regulations 21E - 21L) Division 3 - Reports (Regulation 21M) Division 4 -Miscellaneous (Regulation 21N).

Regulation 21 A refers to subsection 69W(1) of the Act as the source of power for the Part.

Regulation 21 B contains a number of definitions for the purposes of the Part.

Regulation 21 C prescribes the types of medical testing procedures which may be undertaken for the purposes of the definition of 'parentage testing procedure' in subsection 60D(1) of the Act

Regulation 21 D provides the requirements for undertaking an appropriate parenting testing procedure. These include the proper collection, storage and testing of samples by a laboratory that has been duly accredited by NATA operating in accordance with the standards of practice that entitle the laboratory to be accredited and the preparation of a report of the testing and its findings.

Regulation 21 E provides for the persons who may take a sample for the purposes of testing under the Regulations.

Regulation 21 F provides that before any sample is taken from a person that person or, if that person is under the age of 18 years or suffering from a mental disability the relevant person described in subregulation 21F(3), must complete an affidavit in accordance with Form 2 and provide a facial photograph of the donor of the sample. The Regulation also provides that the sampler must have completed the requisite declaration in accordance with Form 3.

Regulation 21 G provides the basis and method of taking a sample by means of a needle or syringe.

Regulation 21 H provides the basis and method of taking a sample for the purposes of DNA typing.

Regulation 21 I provides that any sample taken must be stored in an appropriate container, sealed, labelled with relevant particulars completed on the label then signed by both the donor of the sample, or if the sample is from a person under a disability the relevant described person, and the sampler.

Regulation 21 J provides that after taking a sample the sampler is to complete a statement in accordance with Form 4.

Regulation 21 K provides for the packaging, storage and transportation of a sample to a laboratory so as to preserve its integrity and produce results as if the testing had occurred immediately after the taking of the sample. The sampler must also ensure that all necessary documentation accompanies the sample to the laboratory.

Regulation 21 L provides the requirements of timing that a laboratory must satisfy for undertaking testing on a sample coming into its possession.

Regulation 21 M provides for the preparation of a report of the testing in accordance with Form 5. It also provides that a report not completed in accordance with the requirements is of no effect.

Regulation 21 N provides that NATA must, each year, prepare a list of accredited laboratories and for each such laboratory the nominated reporter and provide that list to the Attorney -General, the Family Court of Australia and the Family Court of Western Australia. The AttorneyGeneral is required to publish the list on receipt.

Regulation 4 omits existing Forms 2, 3 and 4 and replaces them with new Forms 2, 3 and 4 which

has information more relevant to the new procedures.

Regulation 5 amends Schedule 5 to reflect the child welfare law set out in the New South Wales referral legislation.

Regulation 6 amends Schedule 8 to extend the range of Queensland family violence orders to which the provisions of Division 11 of Part VII of the Act applies.