Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010

No. 147, 2010 as amended

Compilation start date: 12 April 2013

Includes amendments up to: Act No. 13, 2013

About this compilation

The compiled Act

This is a compilation of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 as amended and in force on 12 April 2013. It includes any amendment affecting the compiled Act to that date.

This compilation was prepared on 29 April 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled Act is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is set out in the endnotes.

Modifications

If a provision of the compiled Act is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled Act has expired or otherwise ceased to have effect in accordance with a provision of the Act, details of the provision are set out in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Schedule(s) 1

Schedule 1—Validation of certain parenting orders 2

Schedule 2—Amendments 10

Family Law Act 1975 10

Endnotes 11

Endnote 1—Legislation history 11

Endnote 2—Amendment history 12

Endnote 3—Application, saving and transitional provisions 13

Endnote 4—Uncommenced amendments 14

Endnote 5—Misdescribed amendments 15

An Act to validate certain parenting orders and amend the Family Law Act 1975, and for related purposes
1 Short title

This Act may be cited as the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010.
2 Commencement

This Act commences on the day after this Act receives the Royal Assent.
3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Validation of certain parenting orders 1 Interpretation 1

In this Schedule:

affected order has the meaning given by subitems 2(1) and (3).

consider has the same meaning as in section 65DAA of the Family Law Act 1975.

court, except in subitems 4(2) and (3), means a court exercising jurisdiction in relation to a matter arising under the Family Law Act 1975 or this Act.

enforceable includes able to be dealt with by proceedings under Division 13A of Part VII of the Family Law Act 1975 relating to a contravention of an order.

enforcement law has the meaning given by subitem 4(3).

liability includes a duty, responsibility or obligation.

Registrar means:

required matters, for an order, has the meaning given by subitem 2(2).

right includes an interest, status, power or authority.

 a

(a) a Registrar within the meaning of the Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 37A of the Family Law Act 1975; or

 b

(b) a Judicial Registrar appointed under Family Law Act 1975, to the extent that his or her powers were or are exercised under a delegation of the Family Court’s powers under Rules of Court made under section 26B of that Act; orsection 26A of the

c

(c) a Registrar within the meaning of the Federal Magistrates Act 1999, to the extent that his or her powers were or are exercised:

 i

under section 102 of that Act; or

 ii

under a delegation of the Federal Magistrates Court’s powers under Rules of Court made under section 103 of that Act.

 2

(2) Any other expression has the same meaning in this Schedule as in the Family Law Act 1975.

 2 Meaning of affected order etc. 1

(1) An affected order is, subject to subitem (3), an order (including an interim order) in relation to a child:

 a

(a) that was made or purportedly made by a court or Registrar under Family Law Act 1975:section 65D of the

i

(i) on or after the commencement of Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006; and

 ii

before the commencement of this item; and

Note: Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced on 1 July 2006.

the affected order is that order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

 b

that:

 i

provides for the child’s parents to have equal shared parental responsibility for the child; or

 ii

was made on the basis that another order provides for the child’s parents to have equal shared parental responsibility for the child; and

 c

in relation to which the court or Registrar did not consider the required matters for the order.

 2

(2) The required matters for the order are:

 a

if the order was made or purportedly made without the consent of all the parties to the proceedings:

 i

in any case—whether the child spending equal time with each of the parents was reasonably practicable; and

 ii

if the order does not provide for the child to spend equal time with each of the parents—whether the child spending substantial and significant time with each of the parents was reasonably practicable; or

 b

if the order was made or purportedly made with the consent of all the parties to the proceedings:

 i

(i) in any case—the matters referred to in paragraphs 65DAA(1)(a) to (c) of the Family Law Act 1975; and

 ii

if the order does not provide for the child to spend equal time with each of the parents—the matters referred to in paragraphs 65DAA(2)(c) to (e) of that Act.

 3

If a court or Registrar has:

 a

varied, revoked, set aside, revived or suspended an order to which paragraphs (1)(a), (b) and (c) apply; or

 b

purported to vary, revoke, set aside, revive or suspend such an order;

 3 Rights and liabilities under affected orders 1

Subject to item 5, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if each affected order were an order in relation to which the court or Registrar making the order had considered the required matters for the order.

 2

A right or liability conferred, imposed or affected by subitem (1):

 a

is exercisable or enforceable; and

 b

is to be regarded as always having been exercisable or enforceable;

as if it were a right or liability conferred, imposed or affected by an order made by the court or Registrar in or in relation to the proceedings for the order.

as if the order were an order made under the Family Law Act 1975.

Note: Section 60CA of the Family Law Act 1975 requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

 3

The rights and liabilities conferred, imposed or affected by subitem (1) include (but are not limited to) the right of a person who was a party to the proceeding or purported proceeding in which the affected order was made to:

 a

appeal against the order; or

 b

apply for review in relation to the order;

 4

Without limiting the grounds on which the person may appeal against the order or apply for review in relation to the order, the person may do so on the ground that the court or Registrar that made the order failed to consider the required matters for the order.

 5

(5) To avoid doubt, this item does not affect the application of Family Law Act 1975 in relation to an affected order.section 60CA of the

4 Effect of things done etc. under or in relation to rights and liabilities 1

Any act or thing done or omitted to be done before, at or after the commencement of this Schedule in relation to a right or liability conferred, imposed or affected by item 3:

 a

has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and

 b

is taken always to have had the same effect, and to have given rise to the same consequences, for the purposes of any written or other law;

as if it were done or omitted to be done to give effect to, or under the authority of or in reliance on, an order made under Family Law Act 1975.section 65D of the

an order, or a particular kind of order, made by a court exercising federal jurisdiction (whether or not the provision also applies to other orders of courts).

 2

However, if, before the commencement of this Schedule, a court purported to convict a person of an offence against an enforcement law on the basis that an affected order was a valid order, nothing in this item is to be taken to validate or confirm that conviction.

 3

(3) An enforcement law is a provision of a law of the Commonwealth, other than a law relating to contempt of court, that sets out a consequence for a person if the person:

 a

contravenes; or

 b

acts in a specified way while there is in force;

 5 Circumstances in which item 3 ceases to have effect

If:

item 3 is to be regarded as having ceased to have effect in respect of the affected order when the new order took effect.

 a

(a) before the commencement of this Schedule, a court or Registrar made an order (the new order) on the basis that an affected order was or might be invalid; and

 b

the new order:

 i

conferred or imposed rights or liabilities similar to or different from those purportedly conferred or imposed by the affected order; or

 ii

affected rights or liabilities in the same way as they were purportedly affected by the affected order or in a different way;

 6 Powers in relation to declared rights and liabilities 1

(1) A court or Registrar may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by item 3 (an item 3 right or liability) as if it were a right or liability conferred, imposed or affected by an order that was made under section 65D of the Family Law Act 1975.

 2

In addition to the powers of a court or Registrar under subitem (1), the court or Registrar also has power to make an order achieving any other result that could have been achieved if:

 a

(a) the affected order had been an order that was made under Family Law Act 1975; andsection 65D of the

b

the court or Registrar had been considering whether:

 i

to vary, revoke, set aside, revive or suspend that order; or

 ii

to extend the time for the doing of anything in relation to the proceedings for that order; or

 iii

to grant a stay of proceedings for that order.

 3

(3) This item has effect, in relation to varying, revoking, setting aside, reviving or suspending an item 3 right or liability, subject to the same conditions and limitations as apply under the Family Law Act 1975 in relation to varying, revoking, setting aside, reviving or suspending an order that was made under section 65D of the Family Law Act 1975.

 4

Despite subitem (3), if the affected order was made without the consent of the parties, the court or Registrar does not need to be satisfied, before varying, revoking, setting aside, reviving or suspending an item 3 right or liability, that there are circumstances justifying reconsideration of how the best interests of the child should be best served.

 5

Any of the following:

 a

an order under this item by the Supreme Court of the Northern Territory, or the Family Court of Western Australia;

 b

a decree or decision of a Judge of the Supreme Court of the Northern Territory, or the Family Court of Western Australia, rejecting an application that he or she disqualify himself or herself from further hearing a matter arising under subitem (1);

is taken, for the purposes of Family Law Act 1975, to be a decree of that court, or a decree or decision of that Judge, exercising original or appellate jurisdiction under that Act.section 94 of the

is taken, for the purposes of Family Law Act 1975, to be a decree of that court, or a decree or decision of that magistrate, exercising original jurisdiction under that Act.section 94AAA of the

6

Any of the following:

 a

an order under this item by the Federal Magistrates Court;

 b

a decree or decision of a Federal Magistrate rejecting an application that he or she disqualify himself or herself from further hearing a matter arising under subitem (1);

 c

an order under this item by the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia;

 d

a decree or decision of a Family Law Magistrate of Western Australia rejecting an application that he or she disqualify himself or herself from further hearing a matter arising under subitem (1);

 7

(7) An order under this item by a court of summary jurisdiction of a State or Territory (other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia) is taken, for the purposes of Family Law Act 1975, to be a decree of that court exercising jurisdiction under that Act.section 96 of the

7 Proceedings for contempt etc.

If (whether before, at or after the commencement of this Schedule) a person has:

the interference or failure is, and is taken always to have been, a matter that can be dealt with in the same manner as if the interference or failure had been in relation to a right conferred or affected, or a liability imposed or affected, by an order validly made under Family Law Act 1975.section 65D of the

a

interfered with a right conferred or affected by item 3 in relation to an affected order of the Federal Magistrates Court, the Family Court of Western Australia, a court of summary jurisdiction or a Registrar; or

 b

failed to satisfy or comply with a liability imposed or affected by item 3 in relation to an affected order of the Federal Magistrates Court, the Family Court of Western Australia, a court of summary jurisdiction or a Registrar;

 8 Evidence

The court record, or a copy of the court record, of an affected order may be adduced in evidence to show the existence, nature and extent of each right or liability conferred, imposed or affected by item 3.

 9 Schedule does not apply to certain orders

Nothing in this Schedule applies to an order declared or held to be invalid, or to have been made without power, by a court before the commencement of this Schedule.

 10 Jurisdiction of courts 1

Subject to subitem (3), jurisdiction is conferred on the Family Court, the Federal Magistrates Court and the Supreme Court of the Northern Territory, and the Family Court of Western Australia is invested with federal jurisdiction, with respect to matters arising under this Schedule.

 2

Subject to subitem (3), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Schedule.

 3

(3) A court only has jurisdiction with respect to a matter arising under this Schedule if it has jurisdiction with respect to an equivalent matter arising under the Family Law Act 1975. The court’s jurisdiction under this Schedule is subject to the same conditions and limitations as would apply to it in dealing with the equivalent matter.

 11 Effect of change of name of Federal Magistrates Court

To the extent that this Schedule applies after the commencement of Schedule 2 to the Federal Circuit Court of Australia Legislation Amendment Act 2012:

 a

(a) a reference in this Schedule to the Federal Magistrates Act 1999 is taken to include a reference to the Federal Circuit Court of Australia Act 1999; and

 b

a reference in this Schedule to a Federal Magistrate is taken to include a reference to a Judge of the Federal Circuit Court of Australia; and

 c

a reference in this Schedule to the Federal Magistrates Court is taken to include a reference to the Federal Circuit Court of Australia.

 Amendments

Family Law Act 1975

 1 Subsections 65DAA(1) and (2)

Omit “If”, substitute “Subject to subsection (6), if”.

 2 At the end of section 65DAA (after the notes)

Add:

Consent orders

the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).

Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

 6

If:

 a

the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and

 b

the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;

 7

To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.

 3 Application of amendments

The amendments made by this Schedule apply to any order made after the commencement of this item, whether proceedings were initiated, or an application for the order was made, before, at or after that commencement.

Endnotes

Endnote 1—Legislation history

This endnote sets out details of the legislation history of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010.

Endnote 2—Amendment history

This endnote sets out the amendment history of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010.

Endnote 3—Application, saving and transitional provisions

This endnote sets out application, saving and transitional provisions for amendments of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010.

There are no application, saving or transitional provisions.

Endnote 4—Uncommenced amendments

This endnote sets out amendments of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 that have not yet commenced.

There are no uncommenced amendments.

Endnote 5—Misdescribed amendments

This endnote sets out amendments of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 that have been misdescribed.

There are no misdescribed amendments.