Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW REGULATIONS (AMENDMENT) 1997 NO. 251

STATUTORY RULES 1997 No. 251

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW REGULATIONS (AMENDMENT)

Subsection 114AB(1) of the Family Law Act 1975 ("the Act") provides that sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections. Section 114AB(2) of the Act provides that where proceedings have been instituted under a prescribed law of a State or Territory they cannot institute proceedings under sections 68B or 114 unless the proceedings under State or Territory law have lapsed, been discontinued or been dismissed or any orders made as a result of the proceedings have been set aside. Where the person didn't institute a proceeding but took other action neither that person nor any other person must be required to do an act or to refrain from doing an act.

The State and Territory laws prescribed for this purpose are listed in Regulation 19 of the Regulations. The laws presently prescribed include sections 172, 173 and 174 of the Justices Act 1902 (WA). These provisions are to be repealed upon the commencement of the Restraining Orders Act 1997 (WA) ("the new Act") on 15 September 1997. The new Act provides a more comprehensive scheme than that provided by the Justices Act 1902 therefore the specific corresponding provisions of the new Act are not readily identifiable. The Western Australian Ministry of Justice therefore indicated that it would be preferable to prescribe a number of Parts of the new Act in Regulation 19.

These Regulations prescribe Parts 1 to 6 and Divisions 1 and 2 of Part 9 of the new Act as prescribed laws of Western Australia for the purposes of subsections 114AB(1) and (2) of the Act.

Division 11 of Part VII of the Family Law Act governs the interaction of contact orders with State/Territory family violence orders with die purpose of resolving inconsistencies between contact orders made under the Act and family violence orders made under State or Territory legislation. Subsection 60D(1) defines, for the purposes of Part VII, "family violence order" as meaning an order made under a prescribed law of a State or Territory to protect a person from family violence. The same subsection also defines "member of the family" and "family violence". Regulation 12BB provides that for the purposes of that definition the prescribed laws of the States and Territories are specified in Schedule 8 of the Regulations. Schedule 8 sets out the prescribed laws of all States and Territories in relation to family violence orders.

The schedule presently provides that the prescribed laws of Western Australia. for this purpose are sections 172 to 178 and sections 179 to 182B of the Justices Act 1902. These provisions are to be repealed upon the commencement of the new Act. The Western Australian Ministry of Justice has indicated that the corresponding provisions of the new Act are contained in Parts 1 to 7 and Part 9 of the new Act

These Regulations prescribe Parts 1 to 7 and Part 9 of the new Act as the prescribed laws of Western Australia relating to Family Violence Orders.