Family Court Act 1997

Reprint 4: The Act as at 14 March 2014


Guide for using this reprint

What the reprint includes

Endnotes, Compilation table, and Table of provisions that have not come into operation

1.Details about the original Act and legislation that has amended its text are shown in the Compilation table in endnote 1, at the back of the reprint. The table also shows any previous reprint.

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3.A table of provisions that have not come into operation, to be found in endnote 1a if it is needed, lists any provisions of the Act being reprinted that have not come into operation and any amendments that have not come into operation. The full text is set out in another endnote that is referred to in the table.

Notes amongst text (italicised and within square brackets)

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Notes of this kind may also be at the foot of Schedules or headings.

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·removed (because it was repealed or deleted from the law); or

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The text of anything removed or omitted can be found in an earlier reprint (if there is one) or one of the written laws identified in the Compilation table.

Reprint numbering and date

1.The reprint number (in the footer of each page of the document) shows how many times the Act has been reprinted. For example, numbering a reprint as “Reprint 3” would mean that the reprint was the 3rd reprint since the Act was passed. Reprint numbering was implemented as from 1 January 2003.

2.The information in the reprint is current on the date shown as the date as at which the Act is reprinted. That date is not the date when the reprint was published by the State Law Publisher and it is probably not the date when the most recent amendment had effect.

 

 

 

 

Reprinted under the Reprints Act 1984 as

at 14 March 2014

Family Court Act 1997

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Contents of this Act2

4.References in section headings and definitions to comparable provisions of Commonwealth Family Law Act2

5.Terms used3

6.Meaning of member of the family — FLA s. 4(1AB)16

7.Meaning of relative — FLA s. 4(1AC)18

7A.Meaning of major long‑term issues — FLA s. 4(1)18

8.Meaning of court19

9A.Meaning of family violence etc. — FLA s. 4AB19

Part 2 — Family Court of Western Australia

Division 1 — The Family Court

9.Family Court continued21

10.Constitution etc. of Court21

Division 2 — Judges

11.Appointment of judges21

12.Seniority22

13.Oath of office22

14.Style and title of judges23

15.Salaries and allowances of judges23

16.Leave of judge23

17.Judges may continue certain superannuation scheme23

18.Tenure of office24

19.Judges’ Salaries and Pensions Act 1950 applies to Family Court judges24

20.Next senior judge may act if Chief Judge unable to act, or office vacant24

21.Acting Chief Judge25

22.Acting judges25

23.Effect of acting as judge26

24.Dual appointments27

Division 3 — Officers of the Court and staff

25.Officers of Court28

26.Principal Registrar and registrars may be magistrates30

27.Personal staff for judges31

28.Other Court staff31

29.Marshal31

30.Functions under federal jurisdiction32

31.Functions under non‑federal jurisdictions32

32.Judicial notice of signatures32

33.Delegation of powers to registrars — FLA s. 37A32

33A.Engagement of consultants etc. — FLA s. 38R35

Division 4 — Administration of Court’s family services

34.Director of Court Counselling has functions of family consultants — FLA s. 38BA35

34A.Director of Court Counselling may delegate powers and functions that relate to family consultants — FLA s. 38BB36

34B.Director of Court Counselling may give directions that relate to family services functions — FLA s. 38BC36

34C.Director of Court Counselling may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner — FLA s. 38BD37

34D.Director of Court Counselling may engage persons to perform family counselling services or family dispute resolution services — FLA s. 38R(1A)37

Part 3 — Jurisdiction of courts and transfer, staying and dismissal of proceedings

Division 1 — Jurisdiction of the Family Court

35.Federal jurisdiction of Court38

36.Non‑federal jurisdictions of Court38

37.Principles to be applied, and matters to be considered, by Court in its non‑federal jurisdiction — FLA s. 4340

Division 2 — Jurisdiction of courts of summary jurisdiction

38.Federal jurisdiction of courts of summary jurisdiction41

39.Non‑federal jurisdictions of courts of summary jurisdiction41

40.Functions of officers of courts of summary jurisdiction41

Division 3 — Jurisdiction of other courts

41.Courts making family violence orders have certain jurisdiction under this Act42

Division 4 — Transfer, staying and dismissal of proceedings

43.Transfer of proceedings from courts of summary jurisdiction in certain cases — FLA s. 69N42

43A.Transfer of proceedings from Magistrates Court in other cases44

44.Transfer of proceedings to another court — FLA s. 45(2)46

45.Stay or dismissal of proceedings46

46.Orders on transfer or staying proceedings46

46A.Change of venue — FLA s. 27A47

Part 4  Non‑court based family services

Division 1 — Family counselling

47.Term used: family counselling — FLA s. 10B48

48.Term used: family counsellor — FLA s. 10C48

49.Confidentiality of communications in family counselling — FLA s. 10D49

50.Admissibility of communications in family counselling and in referrals from family counselling — FLA s. 10E50

Division 2 — Family dispute resolution

51.Term used: family dispute resolution — FLA s. 10F51

52.Term used: family dispute resolution practitioner — FLA s. 10G52

53.Confidentiality of communications in family dispute resolution — FLA s. 10H52

54.Admissibility of communications in family dispute resolution and in referrals from family dispute resolution — FLA s. 10J54

55.Family dispute resolution practitioners must comply with regulations — FLA s. 10K55

Division 3 — Arbitration

56.Meaning of arbitration — FLA s. 10L55

57.Meaning of arbitrator — FLA s. 10M56

58.Arbitrators may charge fees for their services — FLA s. 10N56

59.Immunity of arbitrators — FLA s. 10P56

Part 4A  Family consultants

Division 1 — About family consultants

60.Functions of family consultants — FLA s. 11A57

61.Term used: family consultant — FLA s. 11B57

62.Admissibility of communications with family consultants and referrals from family consultants — FLA s. 11C58

63.Immunity of family consultants — FLA s. 11D59

Division 2 — Courts’ use of family consultants

64.Courts to consider seeking advice from family consultants — FLA s. 11E59

65.Court may order parties to attend, or arrange for child to attend, appointments with family consultant — FLA s. 11F60

65A.Consequences of failure to comply with order under section 65 — FLA s. 11G60

Part 4B  Obligations to inform people about non‑court based family services and about court’s processes and services

Division 1 — Introduction

65B.Objects of this Part — FLA s. 12A62

Division 2 — Kind of information to be provided

65C.Prescribed information about non‑court based family services and court’s processes and services — FLA s. 12B63

65D.Prescribed information about reconciliation — FLA s. 12C63

65E.Prescribed information about Part 5 proceedings —FLA s. 12D64

Division 3 — Who must provide information and when

65F.Obligations on legal practitioners — FLA s. 12E64

65G.Obligations on executive manager — FLA s. 12F65

65H.Obligations on family counsellors, family dispute resolution practitioners and arbitrators — FLA s. 12G65

Part 4C — Court’s powers in relation to court and non‑court based family services

Division 1 — Introduction

65I.Objects of this Part — FLA s. 13A67

Division 2 — Help with reconciliation

65J.Court to accommodate possible reconciliations — FLA s. 13B68

Division 3 — Referrals to family counselling, family dispute resolution and other family services

65K.Court may refer parties to family counselling, family dispute resolution and other family services — FLA s. 13C68

65L.Consequences of failure to comply with order under section 65K — FLA s. 13D69

Division 4 — Court’s role in relation to arbitration of disputes

65M.Court may refer Part 5A proceedings to arbitration — FLA s. 13E70

65N.Court may make orders to facilitate arbitration of certain disputes — FLA s. 13F70

65O.Court may determine questions of law referred by arbitrator — FLA s. 13G71

65P.Awards made in arbitration may be registered in court — FLA s. 13H71

65Q.Court can review registered awards — FLA s. 13J72

65R.Court may set aside registered awards — FLA s. 13K72

Part 5 — Children

Division 1 — Introductory

Subdivision 1 — Objects and principles

66.Object of Part and principles underlying it — FLA s. 60B73

Subdivision 2 — Best interests of the child: court proceedings

66A.Child’s best interests paramount consideration in making parenting order — FLA s. 60CA74

66B.Proceedings to which Subdivision applies — FLA s. 60CB75

66C.How a court determines what is in child’s best interests — FLA s. 60CC75

66D.How views of child are expressed — FLA s. 60CD78

66E.Children not required to express views — FLA s. 60CE79

66F.Informing court of relevant family violence orders — FLA s. 60CF79

66G.Court to consider risk of family violence — FLA s. 60CG79

66HA.Informing court of care arrangements under child welfare laws — FLA s. 60CH80

66HB.Informing court of notifications to, and investigations by, prescribed government agencies — FLA s. 60CI80

Subdivision 3A — Best interests of the child: adviser’s obligations

66HC.Adviser’s obligations in relation to best interests of child — FLA s. 60D81

Subdivision 3 — Family dispute resolution

66H.Attending family dispute resolution before applying for Part 5 Order — FLA s. 60I82

66I.Family dispute resolution not attended because of child abuse or family violence — FLA s. 60J86

Division 2 — Parental responsibility

67.What this Division does — FLA s. 61A87

68.Term used: parental responsibility — FLA s. 61B88

69.Each parent has parental responsibility (subject to court orders) — FLA s. 61C88

70.Parenting orders and parental responsibility — FLA s. 61D88

70A.Presumption of equal shared parental responsibility when making parenting orders — FLA s. 61DA88

70B.Application of presumption of equal shared parental responsibility after interim parenting order made — FLA s. 61DB89

71.Appointment and responsibilities of guardian89

71A.Application to Aboriginal or Torres Strait Islander children — FLA s. 61F91

Division 3 — Reports relating to children under 18

72.Court’s obligation to inform people to whom orders under this Part apply about family counselling, family dispute resolution and other family services — FLA s. 62B91

73.Reports by family consultants — FLA s. 62G91

Division 4 — Parenting plans

74.What this Division does — FLA s. 63A93

75.Parents encouraged to reach agreement — FLA s. 63B93

76.Meaning of parenting plan and related terms — FLA s. 63C93

77.Parenting plans may include child support provisions —FLA s. 63CAA95

78.Parenting plan may be varied or revoked by further written agreement — FLA s. 63D96

78A.Obligations of advisers — FLA s. 63DA96

78B.Registered parenting plans — FLA s. 63DB99

79.Registration of revocation of registered parenting plan — FLA s. 63E99

80.Child welfare provisions of registered parenting plans — FLA s. 63F100

81.Child maintenance provisions of registered parenting plans — FLA s. 63G101

82.Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans — FLA s. 63H102

Division 5 — Parenting orders — what they are

83.What this Division does — FLA s. 64A103

84.Meaning of parenting order and related terms — FLA s. 64B103

85.Parenting orders may be made in favour of parents or other persons — FLA s. 64C105

85A.Parenting orders subject to later parenting plans — FLA s. 64D105

Division 6 — Parenting orders other than child maintenance orders

Subdivision 1 — Introductory

86.What this Division does — FLA s. 65A106

86A.Child’s best interests paramount consideration in making a parenting order — FLA s. 65AA107

87.Division does not apply to child maintenance orders — FLA s. 65B107

Subdivision 2 — Applying for and making parenting orders

88.Who may apply for a parenting order — FLA s. 65C107

89.Court’s power to make parenting order — FLA s. 65D108

89AA.Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances — FLA s. 65DAA108

89AB.Court to have regard to parenting plans — FLA s. 65DAB110

89AC.Effect of parenting order that provides for shared parental responsibility — FLA s. 65DAC111

89AD.No need to consult on issues that are not major long‑term issues — FLA s. 65DAE111

89A.Parenting orders — FLA s. 65DA112

91.General requirements for counselling before parenting order made — FLA s. 65F113

92.Special conditions for making parenting order about whom child lives with or allocation of parental responsibility by consent in favour of non-parent — FLA s. 65G114

93.Children who are 18 or over or who have married or entered de facto relationships — FLA s. 65H115

94.What happens when parenting order that deals with whom child lives with does not make provision in relation to death of parent with whom child lives — FLA s. 65K115

95.Family consultants may be required to supervise or assist compliance with parenting orders — FLA s. 65L116

95A.Court may order attendance at post‑separation parenting program — FLA s. 65LA116

95B.Conditions for providers of post‑separation parenting programs — FLA s. 65LB117

Subdivision 3 — General obligations created by certain parenting orders

96.General obligations created by parenting order that deals with whom child lives with — FLA s. 65M118

97.General obligations created by parenting order that deals with whom child spends time with — FLA s. 65N119

98.General obligations created by parenting order that deals with whom child communicates with — FLA s. 65NA119

98A.General obligations created by parenting order that allocates parental responsibility — FLA s. 65P119

99.Court may issue warrant for arrest of alleged offender — FLA s. 65Q120

Subdivision 4 — Dealing with people who have been arrested

100.Situation to which Subdivision applies — FLA s. 65R121

101.Arrested person to be brought before court — FLA s. 65S121

102.Obligation of court where application before it to deal with contravention — FLA s. 65T122

103.Obligation of court where no application before it, but application before another court, to deal with contravention — FLA s. 65U122

104.Obligation of court where no application before any court to deal with contravention — FLA s. 65V124

105.Applications heard as required by section 102(2) or section 103(3)(b) — FLA s. 65W124

Subdivision 5 — Obligations under parenting orders relating to taking or sending children from Western Australia to places outside Australia

106.Term used: parenting order to which this Subdivision applies — FLA s. 65X125

107.Obligations if certain parenting orders have been made — FLA s. 65Y125

108.Obligations if proceedings for the making of certain parenting orders are pending — FLA s. 65Z126

109.Obligations of owners etc. of aircraft and vessels if certain parenting orders made — FLA s. 65ZA127

110.Obligations of owners etc. of aircraft and vessels if proceedings for making of certain parenting orders are pending — FLA s. 65ZB128

111.General provisions applicable to sections 109 and 110 — FLA s. 65ZC(1) and (2)130

112.No double jeopardy — FLA s. 65ZC(3)130

Division 7 — Child maintenance orders

Subdivision 1 — What this Division does

113.What this Division does — FLA s. 66A131

Subdivision 2 — Objects and principles

114.Objects — FLA s. 66B131

115.Principles: parents have primary duty to maintain — FLA s. 66C132

116.Principles: when step‑parents have duty to maintain — FLA s. 66D132

Subdivision 3 — Relationship with Child Support (Assessment) Act

117.Child maintenance order not to be made etc. if application for administrative assessment of child support could be made — FLA s. 66E133

Subdivision 4 — Applying for and making child maintenance orders

118.Who may apply for child maintenance order — FLA s. 66F133

119.Court’s power to make child maintenance order — FLA s. 66G134

120.Approach to be taken in proceedings for child maintenance order — FLA s. 66H134

121.Matters to be taken into account in considering financial support necessary for maintenance of child — FLA s. 66J135

122.Matters to be taken into account in determining contribution that should be made by party etc. — FLA s. 66K136

123.Children who are 18 or over — FLA s. 66L138

124.When step‑parents have duty to maintain — FLA s. 66M138

125.Determining financial contribution of step‑parent — FLA s. 66N139

Subdivision 5 — Other aspects of court powers

126.General powers of court — FLA s. 66P139

127.Urgent child maintenance orders — FLA s. 66Q141

128.Modification of child maintenance orders — FLA s. 66S141

Subdivision 5A — Varying the maintenance of certain children

128A.Varying maintenance of certain children — FLA s. 66SA144

Subdivision 6 — When child maintenance orders stop being in force

129.Effect of child turning 18 — FLA s. 66T145

130.Effect of death of child, person liable to pay or person entitled to receive — FLA s. 66U145

131.Effect of adoption, marriage or entering into de facto relationship — FLA s. 66V146

131A.Children who are 18 or over: change of circumstances — FLA s. 66VA146

132.Recovery of arrears — FLA s. 66W147

Subdivision 7 — Recovery of amounts paid under maintenance orders

132A.Recovery of amounts paid, and property transferred or settled, under maintenance orders — FLA s. 66X148

Division 8 — Other matters relating to children

Subdivision 1 — What this Division does

133.What this Division does — FLA s. 67A150

Subdivision 2 — Liability of parent not married to child’s mother to contribute towards child bearing expenses

135.Father liable to contribute towards maintenance and expenses of mother — FLA s. 67B150

136.Matters to be taken into account in proceedings under Subdivision — FLA s. 67C151

137.Powers of court in proceedings under Subdivision — FLA s. 67D152

138.Urgent orders — FLA s. 67E153

139.Who may institute proceedings — FLA s. 67F153

140.Time limit for institution of proceedings — FLA s. 67G153

141.Orders for, and unspent, child bearing expenses154

Subdivision 3 — Location and recovery of children

143.Meaning of location order and State information order — FLA s. 67J155

144.Who may apply for location order — FLA s. 67K155

145.Child’s best interests paramount consideration in making location order — FLA s. 67L156

146.Provisions about location orders, other than State information orders — FLA s. 67M156

147.Provisions about State information orders — FLA s. 67N156

148.Information provided under location order not to be disclosed except to limited persons — FLA s. 67P158

149.Meaning of recovery order — FLA s. 67Q159

150.How recovery orders authorise or direct people — FLA s. 67R160

151.How recovery orders to stop and search etc. name or describe vehicles, places etc. — FLA s. 67S161

152.Who may apply for recovery order — FLA s. 67T161

153.Court’s power to make recovery order — FLA s. 67U161

154.Child’s best interests paramount consideration in making recovery order — FLA s. 67V161

155.Duration of recovery order — FLA s. 67W162

156.Persons not to prevent or hinder taking of action under recovery order — FLA s. 67X162

157.Obligation to notify persons of child’s return — FLA s. 67Y163

Subdivision 4 — Allegations of child abuse and family violence

158.Meaning of registrar163

159.Where interested person in proceedings makes allegation of child abuse — FLA s. 67Z163

160.Where member of Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc. — FLA s. 67ZA164

161.No liability for notification under section 159 or 160 — FLA s. 67ZB166

162A.Where interested person makes allegation of family violence — FLA s. 67ZBA167

162B.Court to take prompt action in relation to allegations of child abuse or family violence — FLA s. 67ZBB168

Subdivision 5 — Other orders about children

162.Orders relating to welfare of children — FLA s. 67ZC169

163.Orders for delivery of passports — FLA s. 67ZD169

Division 9 — Independent representation of child’s interests

164.Court order for independent representation of child’s interests — FLA s. 68L170

165.Role of independent children’s lawyer — FLA s. 68LA171

166.Order that child be made available for examination — FLA s. 68M172

Division 10 — Family violence

173.Purposes of this Division — FLA s. 68N173

174.Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order — FLA s. 68P174

175.Relationship of order or injunction made under this Act with existing inconsistent family violence order — FLA s. 68Q176

176.Power of court making family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act — FLA s. 68R177

177.Application of Act and rules when exercising section 176 power — FLA s. 68S178

178.Special provisions relating to proceedings to make interim (or interim variation of) family violence order — FLA s. 68T179

Division 11 — Proceedings, parentage presumptions and evidence and jurisdiction as to child welfare laws

Subdivision 1 — What this Division does

183.What this Division does — FLA s. 69A180

Subdivision 2 — Institution of proceedings

184.Certain proceedings to be instituted only under this Act — FLA s. 69B180

185.Who may institute proceedings — FLA s. 69C180

186.Institution of maintenance proceedings by certain persons — FLA s. 69D181

187.Applicant may be in contempt — FLA s. 69F181

Subdivision 3 — Presumptions of parentage

188.Presumptions of parentage arising from marriage — FLA s. 69P181

189.Presumption of paternity arising from cohabitation — FLA s. 69Q182

190.Presumption of parentage arising from registration of birth — FLA s. 69R182

191.Presumptions of parentage arising from findings of courts — FLA s. 69S183

192.Presumption of paternity arising from acknowledgments — FLA s. 69T183

193.Rebuttal of presumptions etc. — FLA s. 69U184

Subdivision 4 — Parentage evidence

194.Evidence of parentage — FLA s. 69V184

195.Orders for conducting parentage testing procedures — FLA s. 69W184

196.Orders associated with parentage testing orders — FLA s. 69X185

197.Orders directed to persons 18 or over — FLA s. 69Y186

198.Orders directed to children under 18 — FLA s. 69Z186

199.No liability if parent etc. consents — FLA s. 69ZA187

200.Regulations about conducting, and reporting on, parentage testing procedures — FLA s. 69ZB187

201.Reports of information obtained may be received in evidence — FLA s. 69ZC188

Subdivision 5 — Child welfare laws not affected

202.Child welfare laws not affected — FLA s. 69ZK188

Division 11A — Principles for conducting child‑related proceedings

Subdivision 1 — Proceedings to which this Division applies

202A.Proceedings to which this Division applies — FLA s. 69ZM189

Subdivision 2 — Principles for conducting child‑related proceedings

202B.Principles for conducting child‑related proceedings — FLA s. 69ZN190

202C.This Division also applies to proceedings in Chambers — FLA s. 69ZO191

202D.Powers under this Division may be exercised on court’s own initiative — FLA s. 69ZP191

Subdivision 3 — Duties and powers related to giving effect to the principles

202E.General duties — FLA s. 69ZQ192

202F.Power to make determinations, findings and orders at any stage of proceedings — FLA s. 69ZR193

202G.Use of family consultants — FLA s. 69ZS194

Subdivision 4 — Matters relating to evidence

202H.Rules of evidence not to apply unless court decides — FLA s. 69ZT194

202J.Evidence of children — FLA s. 69ZV195

202K.Evidence relating to child abuse or family violence — FLA s. 69ZW196

202L.Court’s general duties and powers relating to evidence — FLA s. 69ZX198

Division 12 — State and Territory orders relating to children

204.Registration of State child orders — FLA s. 70C and 70D199

205.Effect of registration — FLA s. 70E199

Division 13 — Consequences of failure to comply with orders, and other obligations, that affect children

Subdivision 1 — Preliminary

205A.Simplified outline of Division — FLA s. 70NAA200

205B.Application of Division — FLA s. 70NAB200

205C.Meaning of contravened an order — FLA s. 70NAC201

205D.Requirements taken to be included in certain orders — FLA s. 70NAD201

205E.Meaning of reasonable excuse for contravening an order — FLA s. 70NAE202

205F.Standard of proof — FLA s. 70NAF204

Subdivision 2 — Court’s power to vary parenting order

205G.Variation of parenting order — FLA s. 70NBA205

205H.Effect of parenting plan — FLA s. 70NBB206

Subdivision 3 — Contravention alleged but not established

205I.Application of Subdivision — FLA s. 70NCA207

205J.Costs — FLA s. 70NCB207

Subdivision 4 — Contravention established but reasonable excuse for contravention

205K.Application of Subdivision — FLA s. 70NDA208

205L.Order compensating person for time lost — FLA s. 70NDB209

205M.Costs — FLA s. 70NDC209

Subdivision 5 — Contravention without reasonable excuse (less serious contravention)

205N.Application of Subdivision — FLA s. 70NEA210

205O.Powers of court — FLA s. 70NEB211

205P.Bonds — FLA s. 70NEC215

205QA.Procedure for enforcing bonds — FLA s. 70NECA216

205Q.Duties of provider of post‑separation parenting program — FLA s. 70NED217

205R.Evidence — FLA s. 70NEF217

205S.Court may make further orders in relation to attendance at program — FLA s. 70NEG218

Subdivision 6 — Contravention without reasonable excuse (more serious contravention)

205SA.Application of Subdivision — FLA s. 70NFA218

205SB.Powers of court — FLA s. 70NFB219

205SC.When court is empowered to make community service order — FLA s. 70NFC222

205SD.Variation and discharge of community service orders — FLA s. 70NFD224

205SE.Bonds — FLA s. 70NFE224

205SF.Procedure for enforcing community service orders or bonds — FLA s. 70NFF225

205SG.Sentences of imprisonment — FLA s. 70NFG226

205SH.Relationship between Subdivision and other laws — FLA s. 70NFH228

Part 5A — De facto relationships

Division 1 — Introductory

205T.Terms used229

205U.Application of Part generally230

205V.Right to certain civil proceedings limited230

Division 2 — Property adjustment orders and maintenance orders

Subdivision 1 — Introductory

205W.This Division does not apply to certain matters covered by binding financial agreements or former financial agreements — FLA s. 71A231

205X.People to whom this Part applies — connection with WA231

205Y.Court not otherwise limited by connection with WA referred to in section 205X232

205Z.Where court may make order under this Division232

205ZA.Declaration of interests in property — FLA s. 78233

Subdivision 2 — Alteration of property interests, and maintenance

205ZB.Applications, and notifications to spouses233

205ZC.Right of de facto partner to maintenance — FLA s. 72234

205ZD.Maintenance orders — FLA s. 75234

205ZE.Urgent de facto partner maintenance cases — FLA s. 77236

205ZF.Specifications in orders of payments etc. for de facto maintenance purposes — FLA s. 77A237

205ZG.Alteration of property interests — FLA s. 79238

205ZH.Setting aside of orders altering property interests — FLA s. 79A242

205ZHA. Notification of criminal confiscation orders etc. — FLA s. 79B244

205ZHB. Court to stay proceedings under this Division affected by criminal confiscation order etc. — FLA s. 79C245

205ZHC. Lifting a stay — FLA s. 79D246

205ZHD. Intervention by DPP — FLA s. 79E247

205ZI.General powers of court — FLA s. 80247

205ZJ.Duty of court to end financial relations of de facto partners — FLA s. 81248

205ZK.Cessation of de facto maintenance orders — FLA s. 82249

205ZL.Modification of de facto maintenance orders — FLA s. 83249

Division 2A — Orders and injunctions binding third parties

Subdivision 1 — Introductory

205ZLA. Object of Division — FLA s. 90AA252

205ZLB. Term used: third party — FLA s. 90AB252

205ZLC. This Division overrides other laws, trust deeds, etc. — FLA s. 90AC252

205ZLD. Extended meaning of property — FLA s. 90AD253

205ZLE. Other provisions of this Act not affected by this Division — FLA s. 90ADA253

Subdivision 2 — Orders under section 205ZG

205ZLF. Court may make an order under section 205ZG binding a third party — FLA s. 90AE253

Subdivision 3 — Orders or injunctions under section 235A

205ZLG. Court may make an order or injunction under section 235A binding a third party — FLA s. 90AF255

Subdivision 4 — Other matters

205ZLH. Orders and injunctions binding on trustees — FLA s. 90AG257

205ZLI. Protection for third party — FLA s. 90AH257

205ZLJ. Service of documents on third party — FLA s. 90AI258

205ZLK. Expenses of third party — FLA s. 90AJ258

Division 3 — Financial agreements

205ZM.Term used: dealt with — FLA s. 90A259

205ZN.Financial agreements before beginning de facto relationship — FLA s. 90B259

205ZO.Financial agreements during de facto relationship — FLA s. 90C260

205ZP.Financial agreements after de facto relationship ends — FLA s. 90D261

205ZQ.Requirements with respect to provisions in financial agreements relating to maintenance of de facto partner or child or children — FLA s. 90E262

205ZR.Certain provisions in agreements — FLA s. 90F262

205ZS.When financial agreements and former financial agreements are binding — FLA s. 90G263

205ZT.Effect of death of party to financial agreement — FLA s. 90H264

205ZU.Termination of financial agreement and former financial agreement — FLA s. 90J264

205ZV.Circumstances in which court may set aside financial agreement, termination agreement or former financial agreement — FLA s. 90K266

205ZW.Validity, enforceability and effect of financial agreements, termination agreements and former financial agreements — FLA s. 90KA268

205ZX.Notification of criminal property confiscation order etc. — FLA s. 90M269

205ZY.Court to stay proceedings under Division 2 affected by criminal confiscation order etc. — FLA s. 90N270

205ZZ.Lifting a stay — FLA s. 90P271

205ZZA.Intervention by DPP — FLA s. 90Q272

Part 6 — Intervention

206.Intervention by Attorney General — FLA s. 91273

207.Intervention by CEO — FLA s. 91B273

208.Intervention by other persons — FLA s. 92274

209.Intervention in child abuse cases — FLA s. 92A274

Part 7 — Appeals

209A.Terms used275

210.Federal jurisdiction275

210A.Non‑federal jurisdictions — appeal from decree of Magistrates Court constituted by family law magistrate275

210AA.Leave to appeal needed in some cases referred to in section 210A278

210AB.Case stated278

211.Non‑federal jurisdictions278

211A.Appeals, and applications for leave, without oral hearing280

211B.Appeal may be dismissed if no reasonable prospect of success280

Part 8 — Procedure and evidence

Division 1 — General matters concerning procedure and evidence

212.Proceedings generally to be in open court — FLA s. 97281

213.Power to give directions282

214A.Children swearing affidavits, being called as witnesses or being present in court — FLA s. 100B282

214B.Oaths and affirmations282

214C.Swearing of affidavits etc.283

215.Protection of witnesses — FLA s. 101284

216.Certificates etc. of birth, death or marriage — FLA s. 102284

217.Admissibility of evidence after medical examination etc. of children — FLA s. 102A(1), (2), (4) and (5)285

218.Leave for child to be examined medically etc. — FLA s. 102A(3)286

219.Assessors — FLA s. 102B286

Division 2 — Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.

219AA.Evidence Act 1906 not excluded287

219AB.Testimony — FLA s. 102C287

219AC.Appearance of persons — FLA s. 102D288

219AD.Making of submissions — FLA s. 102E288

219AE.Conditions for use of links — FLA s. 102F289

219AF.Putting documents to a person — FLA s. 102G291

219AG.Administration of oaths and affirmations — FLA s. 102J292

219AH.Expenses — FLA s. 102K293

219AI.New Zealand proceedings — FLA s. 102L293

Part 9 — Enforcement of decrees

219A.Maintenance orders — more than 12 months old — FLA s. 106294

220.Enforcement of orders as to child maintenance or child bearing expenses294

220A.Rules relating to enforcement — FLA s. 109A294

221.Execution of instruments by order of court — FLA s. 106A297

222.Transactions to defeat claim — FLA s. 106B297

222A.People not to be imprisoned for failure to comply with certain orders — FLA s. 107299

Part 10 — Sanctions for failure to comply with orders, and other obligations, that do not affect children

Division 1 — Interpretation

223.Terms used — FLA s. 112AA300

224.Meaning of contravene an order — FLA s. 112AB301

225.Meaning of reasonable excuse for contravening an order — FLA s. 112AC301

Division 2 — Sanctions for failure to comply with orders

226.Sanctions for failure to comply with orders — FLA s. 112AD302

227.Sentences of imprisonment — FLA s. 112AE303

228.Bonds — FLA s. 112AF305

229.Sentencing alternatives — FLA s. 112AG305

230.Failure to comply with sentencing alternative imposed under s. 226(3)(b) — FLA s. 112AH307

231.Variation and discharge of orders — FLA s. 112AK308

232.Relationship between Division and other laws — FLA s. 112AM309

233.Division does not affect enforcement of child maintenance orders etc. — FLA s. 112AO309

Part 10A — Contempt of court

233A.Terms used310

234.Contempt — FLA s. 112AP310

Part 11 — Injunctions

235.Injunctions — FLA s. 68B312

235A.Injunctions relating to de facto relationships — FLA s. 114313

236.Powers of arrest where injunction breached — FLA s. 68C and s. 114AA314

Part 12 — Miscellaneous

237.Costs — FLA s. 117317

238.Reparation for certain losses and expenses relating to children — FLA s. 117A319

239.Interest on moneys ordered to be paid — FLA s. 117B320

240.Offers of settlement — FLA s. 117C321

241.Ex parte orders322

242.Frivolous or vexatious proceedings — FLA s. 118322

243.Restriction on publication of court proceedings — FLA s. 121323

243A.Use of reasonable force in arresting persons — FLA s. 122AA327

244.Rules327

245.Regulations333

246.Repeal335

247.Transitional and savings335

Schedule 1 — Oath and affirmation of office

Schedule 2 — Transitional and savings

Division 1 — Provisions for repeal of Family Court Act 1975

1.Terms used337

2.Interpretation Act 1984 applies337

3.Persons holding offices under, or employed or engaged for purposes of, the repealed Act337

4.Setting aside of orders made under repealed s. 30 altering property interests339

5.Treatment of orders as to custody, guardianship, access or maintenance or other payments339

6.Treatment of applications for orders as to custody, guardianship, access or maintenance or other payments341

7.Treatment of agreements relating to child welfare matters341

8.Treatment of warrants342

9.Treatment of orders as to information342

10.Other things done for purposes of provisions of repealed Act342

Division 2 — Provisions for Family Court Amendment (Family Violence and Other Measures) Act 2013

11.Application of amendments relating to family violence343

12.Application of other amendments343

Notes

Compilation table345

Provisions that have not come into operation347

Defined terms

 

 

Crest

Reprinted under the Reprints Act 1984 as

at 14 March 2014

Family Court Act 1997

An Act to continue the Family Court of Western Australia, to repeal the Family Court Act 1975 and for related purposes.

Part 1 — Preliminary

1.Short title

This Act may be cited as the Family Court Act 1997 1.

2.Commencement

The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation 1.

3.Contents of this Act

This Act — 

(a)provides for the Family Court of Western Australia and for certain other State courts to exercise the federal jurisdiction invested in them by or under the Family Law Act 1975 of the Commonwealth; and

(b)provides for the Family Court of Western Australia and for certain other State courts to exercise the non‑federal jurisdictions conferred on them by or under this Act; and

(c)provides for the Family Court of Western Australia to exercise jurisdiction under any other written law, or for the purposes of any other Commonwealth law.

4.References in section headings and definitions to comparable provisions of Commonwealth Family Law Act

Without limiting section 32(2) of the Interpretation Act 1984, a reference to “FLA” followed by a section designation — 

(a)in the heading to a section of this Act is a reference to the section of the Family Law Act 1975 of the Commonwealth with which the section in this Act is comparable; or

(b)immediately before a definition in this Act is a reference to the section in the Family Law Act 1975 of the Commonwealth containing a definition with which the definition in this Act is comparable.

5.Terms used

(1)In this Act, unless the contrary intention appears — 

(FLA s. 4(1))

Aboriginal child means a child who is a descendant of the Aboriginal people of Australia;

(FLA s. 4(1))

Aboriginal or Torres Strait Islander culture, in relation to a child —

(a)means the culture of the Aboriginal or Torres Strait Islander community or communities to which the child belongs; and

(b)includes Aboriginal or Torres Strait Islander lifestyle and traditions of that community or communities;

(FLA s. 4(1))

abuse, in relation to a child, means —

(a)an assault, including a sexual assault, of the child; or

(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d)serious neglect of the child;

(FLA s. 4(1))

adopted in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children;

(FLA s. 4(1))

alleged contravention in Part 5 Division 6 Subdivision 4, means the alleged contravention because of which the alleged offender is arrested;

(FLA s. 4(1))

alleged offender in Part 5 Division 6 Subdivision 4, means the person who is arrested;

(FLA s. 4(1))

application for a confiscation declaration means any of the following —

(a)an application under section 30 of the Criminal Property Confiscation Act 2000, for a declaration that property has been confiscated;

(b)an application under section 27 of the Criminal Property Confiscation Act 2000, for a confiscable property declaration;

(c)an application under section 32A(1) of the Misuse of Drugs Act 1981 that a person be declared a drug trafficker;

(FLA s. 4(1))

arbitration has the meaning given by section 56;

(FLA s. 4(1))

arbitrator has the meaning given by section 57;

(FLA s. 4(1))

arresting person means the person who arrests the alleged offender;

(FLA s. 4(1))

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places;

Australian legal practitioner has the meaning given in the Legal Profession Act 2008 section 3;

(FLA s. 4(1))

birth includes stillbirth;

(FLA s. 4(1))

captain, in relation to an aircraft or vessel, means the person in charge or command of the aircraft or vessel;

CEO means the CEO as defined in section 3 of the Children and Community Services Act 2004;

Chief Judge means the judge appointed under section 11(2) to be the Chief Judge of the Court;

(FLA s. 4(1))

child —

(a)in Part 5, includes an adopted child, a child whose parentage has been transferred under the Surrogacy Act 2008 and a stillborn child; and

(b)in Part 5 Division 6 Subdivision 5, means a person who has not attained the age of 18 years (including a person who is an adopted child or a child whose parentage has been transferred under the Surrogacy Act 2008);

child bearing expenses means a matter in respect of which a payment may be ordered to be made under Subdivision 2 of Division 8 of Part 5;

(FLA s. 4(1))

childbirth maintenance period, in relation to the birth of a child, means the period that begins on the day mentioned in paragraph (a) or (b) and ends 3 months after the child’s birth —

(a)if the mother —

(i)works in paid employment; and

(ii)is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and

(iii)stops working after being so advised and more than 2 months before the child is due to be born,

the period begins on the day on which she stops working; or

(b)in any other case, the period begins on the day that is 2 months before the child is due to be born;

(FLA s. 4(1))

child maintenance order has the meaning given by section 84(5);

(FLA s. 4(1))

child maintenance provisions, in relation to a parenting plan, has the meaning given by section 76(5);

(FLA s. 4(1))

child‑related proceedings has the meaning given by section 202A;

Child Support (Assessment) Act means the Child Support (Assessment) Act 1989 of the Commonwealth as adopted by the Child Support (Adoption of Laws) Act 1990;

Child Support (Registration and Collection) Act means the Child Support (Registration and Collection) Act 1988 of the Commonwealth as adopted by the Child Support (Adoption of Laws) Act 1990;

(FLA s. 4(1))

child welfare law means this Act, the Adoption Act 1994, the Children and Community Services Act 2004, the Young Offenders Act 1994 and any other written law providing for — 

(a)the imprisonment, detention or residence of a child; or

(b)the care, treatment and protection of a child who has a mental illness;

(FLA s. 4(1))

child welfare officer in relation to a State or Territory, means —

(a)a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or

(b)a person authorised in writing by such a person for the purposes of Part 5;

(FLA s. 4(1))

child welfare provisions, in relation to a parenting plan, has the meaning given by section 76(4);

Commissioner of Police means the Commissioner of Police appointed under section 5 of the Police Act 1892;

(FLA s. 4(1))

community service order has the meaning given by section 205SC;

(FLA s. 4(1))

confiscation declaration means any of the following —

(a)a declaration under section 30 of the Criminal Property Confiscation Act 2000 that property has been confiscated;

(b)a confiscable property declaration under section 27 of the Criminal Property Confiscation Act 2000;

(c)a declaration under section 32A(1) of the Misuse of Drugs Act 1981 that a person is a drug trafficker;

(FLA s. 4(1))

contravened an order, in Part 5 Division 13, has the meaning given by section 205C;

Court or Family Court of Western Australia means the Family Court of Western Australia continued by this Act;

court has a meaning affected by section 8;

(FLA s. 4(1))

criminal confiscation order means any of the following —

(a)a confiscation declaration;

(b)a freezing order, within the meaning of the Criminal Property Confiscation Act 2000;

(c)a freezing notice, within the meaning of the Criminal Property Confiscation Act 2000;

(FLA s. 4(1))

department means a department of the Public Service;

Director of Court Counselling means the Director of Court Counselling appointed under section 25(1)(d);

(FLA s. 4(1))

DPP means the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1991;

(FLA s. 4(1))

education includes apprenticeship or vocational training;

( FLA s. 4(1))

exposed to family violence, in relation to a child, has the meaning given in section 9A(3);

(FLA s. 4(1))

family consultant has the meaning given by section 61;

(FLA s. 4(1))

family counselling has the meaning given by section 47;

(FLA s. 4(1))

family counsellor has the meaning given by section 48;

Family Court of Australia means the Family Court of Australia created by the Family Law Act;

(FLA s. 4(1))

family dispute resolution has the meaning given by section 51;

(FLA s. 4(1))

family dispute resolution practitioner has the meaning given by section 52;

Family Law Act means the Family Law Act 1975 of the Commonwealth and includes rules, regulations and proclamations for the time being in force under that Act;

family law magistrate means a person who is both a magistrate appointed under the Magistrates Court Act 2004 and either the Principal Registrar or a registrar of the Family Court of Western Australia;

( FLA s. 4(1))

family violence has the meaning given in section 9A(1);

(FLA s. 4(1))

family violence order means an order (including an interim order) made under a law of a State or a Territory to protect a person from family violence;

income tested pension, allowance or benefit has the meaning given by the Family Law Act;

(FLA s. 4(1))

independent children’s lawyer, for a child, means an Australian legal practitioner who represents the child’s interests in proceedings under an appointment made under a court order under section 164(2);

(FLA s. 4(1))

information about a child’s location, in the context of a location order made or to be made by a court in relation to a child, means information about — 

(a)where the child is; or

(b)where a person who the court has reasonable cause to believe has the child is;

(FLA s. 4(1))

interests in relation to a child, includes matters related to the care, welfare or development of the child;

judge or Family Court judge means a judge of the Court;

(FLA s. 4(1))

location order has the meaning given by section 143(1);

(FLA s. 4(1))

made in favour, in relation to a parenting order (other than a child maintenance order), has the meaning given by section 84(6);

(FLA s. 4(1))

major long‑term issues has the meaning given by section 7A;

(FLA s. 4(1))

medical expenses includes medical, surgical, dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy expenses;

(FLA s. 4(1))

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or a Territory that provides for the registration or licensing of medical practitioners and who has current entitlement to practise in that State or Territory;

( FLA s. 4(1))

member of the family has the meaning given in section 6;

metropolitan region has the meaning given to that term in the Planning and Development Act 2005 section 4;

order means an order of a court and includes a judgment and an order dismissing an application or refusing to make an order;

(FLA s. 4(1))

order under this Act affecting children, in relation to a court, means —

(a)a parenting order; or

(b)an injunction granted by a court —

(i)under section 235; or

(ii)under section 235A insofar as the injunction is for the protection of a child;

or

(c)an undertaking given to, and accepted by, the court —

(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or

(ii)that relates to a bond referred to in paragraph (g);

or

(d)a subpoena issued under the rules of Court —

(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or

(ii)that relates to a bond referred to in paragraph (g),

being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or

(e)a registered parenting plan within the meaning of section 76(6); or

(f)a community service order made under section 205SB(2)(a); or

(g)a bond entered into —

(i)under a parenting order; or

(ii)under section 205SB(2)(b); or

(iii)for the purposes of section 205SG(6),

and includes an order, injunction, plan or bond that —

(iv)is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and

(v)has been registered in the first‑mentioned court;

(FLA s. 4(1))

parent, when used in Part 5 in relation to a child who has been adopted, means an adoptive parent of the child;

(FLA s. 4(1))

parentage testing order has the meaning given by section 195(1);

(FLA s. 4(1))

parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition;

(FLA s. 4(1))

parental responsibility, in Part 5, has the meaning given by section 68;

(FLA s. 4(1))

parenting order has the meaning given by section 84(1);

(FLA s. 4(1))

parenting plan has the meaning given by section 76;

(FLA s. 4(1))

Part 5 Order means an order made under Part 5;

(FLA s. 4(1))

Part 5A proceedings means proceedings under Part 5A for orders with respect to the maintenance of a de facto partner or to the property of de facto partners, but does not include any proceedings specified in the regulations for the purposes of this definition;

(FLA s. 4(1))

pending, in Part 5 Division 6 Subdivision 5, has a meaning affected by section 106(2);

(FLA s. 4(1))

post‑separation parenting program has the meaning given by the Family Law Act;

(FLA s. 4(1))

primary order means an order under this Act affecting children and includes such order as varied;

principal officer —

(a)in relation to a department or an organisation within the meaning of the Public Sector Management Act 1994, means the chief executive officer or chief employee (as those terms are defined in the Public Sector Management Act 1994) of the department or organisation; and

(b)in relation to any other State entity, means a person who is the chief executive officer of the State entity;

proceedings means a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connection with a proceeding;

(FLA s. 4(1))

professional ethics includes — 

(a)rules of professional conduct; and

(b)rules of professional etiquette; and

(c)a code of ethics; and

(d)standards of professional conduct;

(FLA s. 4(1))

reasonable excuse for contravening, in relation to an order, includes the meanings given by section 205E;

(FLA s. 4(1))

recovery order has the meaning given by section 149;

registered parenting plan has the meaning given by section 76(6);

(FLA s. 4(1))

registrar means —

(a)in relation to the Court, means the Principal Registrar, a deputy registrar or a registrar; and

(b)in relation to the Magistrates Court, means a registrar of that court at the place where that court was held;

(FLA s. 4(1))

Registry Manager means —

(a)in relation to the Family Court of Western Australia, the Principal Registrar of that Court; and

(b)in relation to a court other than the Family Court of Western Australia, the principal officer of the court or any other appropriate officer of the court;

(FLA s. 4(1))

relative, of a child —

(a)in Part 5, means —

(i)a step‑parent of the child; or

(ii)a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the child; or

(iii)a grandparent of the child; or

(iv)an uncle or aunt of the child; or

(v)a nephew or niece of the child; or

(vi)a cousin of the child;

and

(b)in section 6, has the meaning given by section 7;

(FLA s. 4(1))

relevant property or financial arbitration has the meaning given by section 56(2);

(FLA s. 4(1))

section 65M arbitration has the meaning given by section 56(2);

(FLA s. 4(1))

State child order means an order made under the law of a State that —

(a)however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or

(b)however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or

(c)however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18;

State entity means —

(a)a department or an organisation within the meaning of the Public Sector Management Act 1994; or

(b)a body corporate, other than such an organisation or a local government, established for a public purpose by a written law;

State information order has the meaning given by section 143(2);

(FLA s. 4(1))

step‑parent, in relation to a child, means a person who — 

(a)is not a parent of the child; and

(b)is or has been married to, or in a de facto relationship with, a parent of the child; and

(c)treats, or at any time during the marriage treated, the child as a member of the family formed with the parent;

(FLA s. 4(1))

Torres Strait Islander child means a child who is a descendant of the Indigenous inhabitants of the Torres Strait Islands;

(FLA s. 4(1))

video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places.

(2)A reference in this Act to a person who has parental responsibility for a child is a reference to a person who —

(a)has some or all of that responsibility solely; or

(b)shares some or all of that responsibility with another person.

(3)A reference in this Act to a person who shares parental responsibility for a child with another person is a reference to a person who shares some or all of the parental responsibility for the child with that other person.

(4)A reference in this Act to a person or people involved in proceedings is a reference to —

(a)any of the parties to the proceedings; and

(b)any child whose interests are considered in, or affected by, the proceedings; and

(c)any person whose conduct is having an effect on the proceedings.

[Section 5 amended by No. 25 of 2002 s. 4 and 29; No. 28 of 2003 s. 50(1); No. 34 of 2004 Sch. 2 cl. 10(2); No. 59 of 2004 s. 91; No. 38 of 2005 s. 15; No. 35 of 2006 s. 4, 17, 42(1), 63, 80, 104, 108, 136, 144 and 170; No. 21 of 2008 s. 663(2); No. 47 of 2008 s. 59; No. 13 of 2013 s. 4.]

6.Meaning of member of the family — FLA s. 4(1AB)

For the purposes of —

(a)the definition of step‑parent in section 5(1); and

(ba)section 9A; and

(b)section 66C(3)(j) and (k); and

(c)sections 66F, 66HA and 66HB,

a person (the first person) is a member of the family of another person (the second person) if —

(d)the first person is or has been married to, or in a de facto relationship with, the second person; or

(e)the first person is or has been a relative of the second person (as defined in section 7); or

(f)an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force —

(i)a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons;

(ii)an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons;

or

(g)an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force —

(i)an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons;

(ii)an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons;

or

(h)the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or

(i)the first person is or has been a member of the family of a child of the second person.

[Section 6 inserted by No. 35 of 2006 s. 171; amended by No. 13 of 2013 s. 5.]

7.Meaning of relative — FLA s. 4(1AC)

For the purposes of section 6, a relative of a person is —

(a)a father, mother, grandfather, grandmother, step‑father or step‑mother of the person; or

(b)a son, daughter, grandson, grand‑daughter, step‑son or step‑daughter of the person; or

(c)a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the person; or

(d)an uncle or aunt of the person; or

(e)a nephew or niece of the person; or

(f)a cousin of the person; or

(g)if the person is or was married, in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person’s spouse; or

(h)if the person is or was in a de facto relationship with another person, in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.

[Section 7 inserted by No. 35 of 2006 s. 171.]

7A.Meaning of major long‑term issues — FLA s. 4(1)

(1)For the purposes of this Act —

major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about —

(a)the child’s education (both current and future); and

(b)the child’s religious and cultural upbringing; and

(c)the child’s health; and

(d)the child’s name; and

(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

(2)To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child, however, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

[Section 7A inserted by No. 35 of 2006 s. 171.]

8.Meaning of court

Unless the contrary intention appears, a reference in Parts 4, 5, 5A, 6, 8, 9, 10, 10A, 11 and 12 and Schedule 2 to a court is a reference to — 

(a)the Court; and

(b)the Magistrates Court constituted so as to be able, under section 39, to exercise the Court’s non‑federal jurisdictions.

[Section 8 amended by No. 25 of 2002 s. 30; No. 59 of 2004 s. 95.]

9A.Meaning of family violence etc. — FLA s. 4AB

(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2)Examples of behaviour that may constitute family violence include (but are not limited to) —

(a)an assault; or

(b)a sexual assault or other sexually abusive behaviour; or

(c)stalking; or

(d)repeated derogatory taunts; or

(e)intentionally damaging or destroying property; or

(f)intentionally causing death or injury to an animal; or

(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child —

(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

[Section 9A inserted by No. 13 of 2013 s. 6.]

Part 2 — Family Court of Western Australia

Division 1 — The Family Court

9.Family Court continued

(1)The Family Court of Western Australia, established by the Family Court Act 1975, is continued.

(2)The Court is a court of record and is to have an official seal of which judicial notice must be taken.

10.Constitution etc. of Court

(1)The Court consists of — 

(a)the Chief Judge; and

(b)the other judges appointed under section 11; and

(c)acting judges appointed under section 21 or 22.

(2)The jurisdiction of the Court is exercisable by one judge who may sit and exercise the jurisdiction of the Court at the same time as any other Court constituted by a judge is sitting and exercising the jurisdiction of the Court.

(3)Sittings of the Court are to be held from time to time as required.

Division 2 — Judges

11.Appointment of judges

(1)The Governor, by commission under the Public Seal of the State, may appoint as many persons as are needed for the purposes of this Act to be Family Court judges.

(2)The Governor is to appoint one of the judges to be the Chief Judge of the Court and may, at any time, revoke the appointment as Chief Judge.

(3)A person is not eligible for appointment as a Family Court judge unless the person —

(a)is an Australian lawyer and has had not less than 8 years’ legal experience; and

(b)by reason of training, experience, and personality, is a suitable person to deal with matters of family law.

(3a)In subsection (3)(a) —

Australian lawyer has the meaning given in the Legal Profession Act 2008 section 3;

legal experience means —

(a)standing and practice as an Australian legal practitioner; or

(b)judicial service (including service as a judge of a court, a magistrate or other judicial officer) in the State or elsewhere in a common law jurisdiction; or

(c)a combination of both kinds of legal experience mentioned in paragraphs (a) and (b).

(4)A person so appointed is a judge for the whole of the State and can constitute the Court sitting at any place in the State.

[Section 11 amended by No. 21 of 2008 s. 663(3).]

12.Seniority

(1)The Chief Judge is senior to all of the other judges.

(2)The judges other than the Chief Judge have seniority next to the Chief Judge according to the dates on which their appointments as judges took effect but where 2 or more of those appointments took effect on the same day, they have such seniority in relation to each other as is assigned to them by the Governor.

13.Oath of office

Before a person who is appointed to be a judge performs any function of the office, he or she shall take before the Governor, a Supreme Court judge, or some person authorised for the purpose by the Governor, an oath or affirmation in the form set out in Schedule 1.

[Section 13 inserted by No. 24 of 2005 s. 22.]

14.Style and title of judges

(1)The Chief Judge, in relation to that office, is entitled to the style and title to which a puisne judge of the Supreme Court is entitled.

(2)Each judge other than the Chief Judge, in relation to the judge’s office, is entitled to the style and title of “His Honour” or “Her Honour”.

15.Salaries and allowances of judges

(1)The Chief Judge is entitled to be paid salary and to receive allowances or reimbursements at the same rate as a puisne judge of the Supreme Court.

(2)Each judge other than the Chief Judge is entitled to be paid salary and to receive allowances or reimbursements at the same rate as a District Court judge other than the Chief Judge of the District Court.

16.Leave of judge

A judge is entitled to the same conditions in respect of leave of absence as a judge of the Supreme Court.

17.Judges may continue certain superannuation scheme

If a person was a contributor within the meaning of the Superannuation and Family Benefits Act 1938 2, 3 immediately before the person’s appointment as a judge then the person may continue to be a contributor, or member, under the respective Act, despite the appointment.

[Section 17 amended by No. 43 of 2000 s. 43(1).]

18.Tenure of office

(1)A judge must retire from office on attaining 70 years of age.

(2)A judge may resign from office by giving written notice to the Governor and the resignation takes effect on the day on which the notice is received by the Governor or on such later day as is specified in the notice.

(3)Subject to subsections (1) and (2), the commission of a judge continues in force during good behaviour but the Governor may, upon the address of both Houses of Parliament, remove any judge from office and revoke the judge’s commission.

19.Judges’ Salaries and Pensions Act 1950 applies to Family Court judges

The provisions of the Judges’ Salaries and Pensions Act 1950 that relate to pensions apply, with such modifications as circumstances require, to and in relation to — 

(a)a Family Court judge; and

(b)after the judge’s death, the judge’s surviving spouse, de facto partner or children,

in the same manner as they apply to and in relation to a judge of the Supreme Court appointed after the commencement of that Act and to and in relation to the surviving spouse, de facto partner or children of a judge of the Supreme Court after that judge’s death, and for that purpose judge in that Act includes a Family Court judge.

[Section 19 amended by No. 28 of 2003 s. 51.]

20.Next senior judge may act if Chief Judge unable to act, or office vacant

Whenever — 

(a)the Chief Judge is temporarily unable for any reason to perform the functions of the office of Chief Judge; or

(b)there is a vacancy in the office of Chief Judge,

and no judge has been specifically appointed under section 21 to act in the office of Chief Judge for the period of such inability or vacancy, the next senior judge who is able and willing to do so is to perform the Chief Judge’s functions and may exercise the Chief Judge’s powers.

21.Acting Chief Judge

(1)If — 

(a)the Chief Judge is, or is expected to be, absent from duty or unable for any reason to perform the functions of the office of Chief Judge; or

(b)there is a vacancy in the office of Chief Judge,

then the Governor may appoint a judge to act in the office of Chief Judge for the period specified in the instrument of appointment.

(2)A judge who is appointed under subsection (1) to act in the office of Chief Judge is entitled, for so long as the appointment is effective — 

(a)to be paid salary and to receive allowances or reimbursements at the same rate as if the judge had been substantively appointed to the office of Chief Judge under section 11(2); and

(b)to the style and title of the Chief Judge.

22.Acting judges

(1)If a judge including the Chief Judge is, or is expected to be, temporarily unable for any reason to perform the functions of the office of judge then the Governor may, by commission under the Public Seal of the State, appoint a person who is eligible to be appointed as a judge to act as a judge for the period of the first‑mentioned judge’s inability.

(2)If for any reason the conduct of the business of the Court, in the opinion of the Governor, requires the appointment of an acting judge then the Governor may appoint a person who is eligible to be appointed as a judge to act as a judge for such period as the Governor thinks fit and specifies in the instrument of appointment.

(3)The appointment of an acting judge authorises the acting judge to complete the hearing and determination of any proceedings that may be pending before the acting judge at the expiration of that period.

(4)Before a person who is appointed to be an acting judge performs any function of the office, he or she shall take before the Governor, a Supreme Court judge, or some person authorised for the purpose by the Governor to do so, an oath or affirmation in the form set out in Schedule 1.

[Section 22 amended by No. 24 of 2005 s. 23.]

23.Effect of acting as judge

(1)A person appointed to be an acting judge, other than an acting Chief Judge, is entitled, for so long as the appointment is effective — 

(a)to be paid salary and to receive allowances or reimbursements at the same rate as if the person had been substantively appointed as a judge other than the Chief Judge; and

(b)to the style and title of a judge other than the Chief Judge.

(2)Section 18 applies to an acting judge as if the acting judge were a judge for the purposes of that section.

(3)If an acting judge is appointed a judge then, for the purposes of the Judges’ Salaries and Pensions Act 1950, the period of service as an acting judge is to be treated as service as a judge.

(4)An acting judge has the same functions, rights and immunities as a judge has and is subject to the same rules and conditions as a judge would be subject to in performing those functions.

(5)Neither the appointment of an acting judge nor any act, matter or thing done in the performance of an acting judge’s functions is to be questioned on the ground that the occasion for the appointment had not arisen or had ceased.

24.Dual appointments

A person may, at the same time, be a judge of the Family Court of Australia and a judge of the Family Court of Western Australia but — 

(a)while the person is entitled to be paid salary and to receive allowances or reimbursements as a judge of the Family Court of Australia, the person is not entitled to be paid salary or to receive allowances or reimbursements under this Act except to the extent that the salary and allowances or reimbursements that would be payable to the person under this Act apart from this section exceeds the salary and allowances or reimbursements payable to the person as a judge of the Family Court of Australia; and

(b)while the person is, and the person’s surviving spouse, de facto partner or children after the person’s death are, entitled to receive a pension under the Judges’ Pensions Act 1968 of the Commonwealth, the person is not, and the person’s surviving spouse, de facto partner or children after the person’s death are not, entitled to receive a pension under the Judges’ Salaries and Pensions Act 1950 except to the extent that the pension that would be payable to the person, and the person’s surviving spouse, de facto partner or children after the person’s death, under that State Act exceeds the pension payable to the person and the person’s surviving spouse, de facto partner or children after the person’s death, under that Commonwealth Act; and

(c)if, after ceasing to be a judge of the Family Court of Western Australia, the person remains a judge of the Family Court of Australia, any pension to which the person is otherwise entitled under the Judges’ Salaries and Pensions Act 1950 is not payable except to the extent, if any, that it exceeds the salary payable to the person as a judge of the Family Court of Australia; and

(d)if, after ceasing to be a judge of the Family Court of Australia, the person remains a judge of the Family Court of Western Australia, the salary to which the person is otherwise entitled under this Act is not payable except to the extent, if any, that it exceeds any pension payable to the person under the Judges’ Pensions Act 1968 of the Commonwealth.

[Section 24 amended by No. 28 of 2003 s. 52.]

Division 3 — Officers of the Court and staff

25.Officers of Court

(1)Subject to subsection (4), the Attorney General is to appoint persons to the following offices of Court — 

(a)the Principal Registrar of the Court; and

(b)registrars of the Court, in such number as is necessary for the performance of the functions of registrars under this Act; and

(c)the executive manager; and

(d)the Director of Court Counselling; and

(e)the Marshal of the Court.

(2)Subject to subsection (4), the Attorney General may appoint persons to the following offices of Court — 

(a)deputy registrars of the Court, in such number as is necessary for the performance of the functions of deputy registrars under this Act; and

(b)the Director of Mediation; and

(c)the Collector of Maintenance of the Court and assistant collectors of maintenance of the Court in such number as is necessary for the performance of the functions of the Collector of Maintenance under this Act.

(2a)Subject to subsection (4), the Court may —

(a)authorise persons to act as —

(i)family counsellors; and

(ii)family dispute resolution practitioners;

and

(b)appoint persons as family consultants.

(3)If there is a vacancy in an office referred to in subsection (1) or (2) then, subject to subsection (4), the Attorney General may appoint a person to act in the office during the period of the vacancy and the person so appointed to act in the office has during that period the functions of a person appointed to the office.

(4)A person cannot be authorised to act as an officer of the court, or appointed to, or to act in, an office of the Court under subsection (1), (2) , (2a) or (3) unless the person is also appointed under Part 3 of the Public Sector Management Act 1994 and the person may hold office as such in conjunction with any other office in the Public Service.

(5)If an officer of the Court other than the executive manager or the Director of Court Counselling is, or is expected to be, temporarily unable for any reason to perform the functions of office then the Chief Judge may appoint another officer of the Court to act in the place of the first‑mentioned officer during the period of that officer’s inability, and the officer so appointed by the Chief Judge has during that period the functions of the first‑mentioned officer.

(6)If the executive manager is, or is expected to be, temporarily unable for any reason to perform the functions of office then the Chief Judge may appoint a person who has been appointed under Part 3 of the Public Sector Management Act 1994 to act in the place of the executive manager during the period of the executive manager’s inability, and the person so appointed by the Chief Judge has during that period the functions of the executive manager.

(7)If the Director of Court Counselling (the Director) is, or is expected to be, temporarily unable for any reason to perform the functions of office then the Chief Judge may appoint a person who has been appointed under Part 3 of the Public Sector Management Act 1994 as a court counsellor to act in the place of the Director during the period of the Director’s inability, and the person so appointed by the Chief Judge has during that period the functions of the Director.

(8)If there is a vacancy in the office of Principal Registrar and no person has been specifically appointed under subsection (3) to act in the office of Principal Registrar for the period of the vacancy then the Chief Judge may appoint a registrar to act in the office of the Principal Registrar during the period of the vacancy and the registrar so appointed by the Chief Judge has during that period the functions of the Principal Registrar.

[Section 25 amended by No. 35 of 2006 s. 109.]

26.Principal Registrar and registrars may be magistrates

(1)Nothing in section 25 prevents the Principal Registrar or any registrar from being appointed and holding office as a magistrate under the Magistrates Court Act 2004.

(2)During any period when a person who is the Principal Registrar or a registrar is a magistrate, the person is not a member of the Public Service and references in this Act to the Public Service and to Part 3 of the Public Sector Management Act 1994 do not apply to that person.

(3)If the Principal Registrar and any one or more registrars hold office as magistrates, the Principal Registrar is the senior of them.

(4)This Act does not prevent a family law magistrate from constituting the Magistrates Court at a place in or outside the metropolitan region.

[Section 26 amended by No. 59 of 2004 s. 92.]

27.Personal staff for judges

(1)The Attorney General, on the recommendation of the Chief Judge, is to appoint as personal staff for the judges such associates, orderlies and other assistants as the Attorney General considers necessary.

(2)Persons appointed under subsection (1) are not to be appointed under Part 3 of the Public Sector Management Act 1994 but nothing in this subsection prevents a person who has been appointed under Part 3 of that Act from being appointed under subsection (1).

28.Other Court staff

(1)Subject to section 27 and subsection (2), there are to be appointed under Part 3 of the Public Sector Management Act 1994 such persons as are necessary for the performance of the Court’s functions and a person so appointed may hold office as such in conjunction with any other office in the Public Service.

(2)The Attorney General, on the recommendation of the Chief Judge, may employ or engage a person other than a person appointed under Part 3 of the Public Sector Management Act 1994 to work in or for the Court.

29.Marshal

(1)The Marshal — 

(a)is charged with the service and execution of all writs, orders, decrees, warrants, precepts, processes, and commands directed to the Marshal by — 

(i)the Court; or

(ii)a court of summary jurisdiction constituted by a family law magistrate;

and

(b)must take, receive, and detain any person who is committed to the Marshal’s custody by a court referred to in paragraph (a) and must discharge all such persons when directed by such court or required by law.

(2)The Marshal may authorise such persons as the Marshal thinks fit to assist the Marshal in the performance of any of the Marshal’s functions.

[Section 29 amended by No. 59 of 2004 s. 95.]

30.Functions under federal jurisdiction

In respect of the federal jurisdiction of the Court, the officers of the Court and the other persons appointed for the purposes of this Act have such functions as are authorised by or under the Family Law Act or any other Commonwealth Act and any subsidiary legislation in force under such an Act, or as are provided for under this Act.

31.Functions under non‑federal jurisdictions

In respect of the non‑federal jurisdictions of the Court, the officers of the Court and the other persons appointed for the purposes of this Act have such functions as are provided for under this Act or any other written law.

32.Judicial notice of signatures

Judicial notice must be taken of the official signature of every person who is, or has at any time been, an officer or acting officer of the Court and of the office or acting office held by that person.

33.Delegation of powers to registrars — FLA s. 37A

(1)In this section — 

delegated power means a power delegated under subsection (2).

(2)Subject to this section, rules may provide for and in relation to the delegation to the registrars, or to any class of registrar, of all or any of the powers of the Court, except this power of delegation.

(3)The power of the Court to make — 

(a)a decree of dissolution of marriage in proceedings that are defended; or

(b)a decree of nullity of marriage; or

(c)a declaration as to the validity of a marriage or the dissolution or annulment of a marriage; or

(d)an excluded child order, as defined in subsection (4A); or

(e)an order setting aside a registered award under section 65Q or 65R,

cannot be delegated to a registrar.

(4A)In subsection (3)(d) —

excluded child order means —

(a)a parenting order to the extent that it provides that —

(i)a child is to live with a person; or

(ii)a child is to spend time with a person; or

(iii)a child is to communicate with a person; or

(iv)a person is to have parental responsibility for a child;

or

(b)an order in relation to the welfare of a child,

other than —

(c)an order until further order; or

(d)an order made in undefended proceedings; or

(e)an order made with the consent of all the parties to the proceedings.

(4)A delegated power exercised by a registrar is to be treated as having been exercised by the Court or a judge, as the case requires.

(5)A power may be exercised by the Court or a judge despite it being a delegated power.

(6)The provisions of any written law, or law of the Commonwealth, that relate to the exercise by the Court of a power that is a delegated power, apply in relation to the exercise of the delegated power by a registrar as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to a registrar.

(7)Despite any other provision of this Act, the Public Sector Management Act 1994 or any other written law, a registrar is not subject to the direction or control of any person or body in relation to the manner in which the registrar exercises a delegated power.

(8)A party to proceedings in which a registrar has exercised a delegated power may, within the time prescribed by, or within such further time as is allowed in accordance with, rules made for the purposes of this subsection, apply to the Court to review the exercise of the delegated power.

(9)The Court may, on application under subsection (8) or of its own motion, review the exercise by a registrar of a delegated power and may make any order it considers appropriate with respect to the matter to which the exercise of the delegated power related.

(10)Where — 

(a)an application is to be, or is being, heard by a registrar exercising a delegated power; but

(b)the registrar considers that it is not appropriate for the application to be determined in that case by a registrar,

the registrar must not hear, or continue to hear, the application and must make appropriate arrangements for the application to be heard by the Court.

(11)Where — 

(a)a delegated power is proposed to be exercised in a particular case by a registrar; but

(b)the registrar has not commenced to exercise the delegated power in that case,

a judge may, on application by a person who would be a party to the proceedings before the registrar in relation to the proposed exercise of the delegated power, order that the power be exercised in that case by a judge.

(12)Where an application is made to a judge under subsection (11) seeking an order that, in a particular case, a delegated power be exercised by a judge, the registrar must not commence to exercise the delegated power in that case until the application has been determined.

[Section 33 amended by No. 25 of 2002 s. 31; No. 35 of 2006 s. 110 and 172; No. 46 of 2009 s. 7.]

33A.Engagement of consultants etc. — FLA s. 38R

(1)The executive manager may engage persons having suitable qualifications and experiences as consultants to, or to perform services for, the executive manager.

(2)An engagement under subsection (1) is to be made —

(a)on behalf of the State; and

(b)by written agreement.

[Section 33A inserted by No. 35 of 2006 s. 111.]

Division 4 — Administration of Court’s family services

[Heading inserted by No. 35 of 2006 s. 112.]

34.Director of Court Counselling has functions of family consultants — FLA s. 38BA

(1)The Director of Court Counselling has all of the functions conferred on family consultants by section 60 and any associated powers and duties.

(2)Without limiting subsection (1), sections 62 and 63 apply to the Director of Court Counselling while the Director of Court Counselling is performing those functions.

(3)The Director of Court Counselling is responsible for administering the functions of family consultants.

[Section 34 inserted by No. 35 of 2006 s. 112.]

34A.Director of Court Counselling may delegate powers and functions that relate to family consultants — FLA s. 38BB

(1)The Director of Court Counselling may, in writing, delegate to a family consultant any of the Director of Court Counselling’s powers, functions and duties in relation to the functions of family consultants mentioned in section 60.

(2)A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Director of Court Counselling.

[Section 34A inserted by No. 35 of 2006 s. 112.]

34B.Director of Court Counselling may give directions that relate to family services functions — FLA s. 38BC

The Director of Court Counselling may give directions that relate to —

(a)an officer of the Court’s functions as a family consultant; or

(b)an officer of the Court’s or a staff member’s functions as a family counsellor or family dispute resolution practitioner.

[Section 34B inserted by No. 35 of 2006 s. 112.]

34C.Director of Court Counselling may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner — FLA s. 38BD

(1)The Director of Court Counselling may authorise an officer of the Court or a staff member to provide family counselling under this Act.

(2)The Director of Court Counselling may authorise an officer of the Court or a staff member to provide family dispute resolution under this Act.

(3)If an officer of the Court who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section —

(a)section 62 does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and

(b)the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a person involved in those proceedings.

[Section 34C inserted by No. 35 of 2006 s. 112.]

34D.Director of Court Counselling may engage persons to perform family counselling services or family dispute resolution services — FLA s. 38R(1A)

The Director of Court Counselling may engage persons to perform —

(a)family counselling services under this Act; or

(b)family dispute resolution services under this Act.

[Section 34D inserted by No. 35 of 2006 s. 112.]

Part 3 — Jurisdiction of courts and transfer, staying and dismissal of proceedings

Division 1 — Jurisdiction of the Family Court

35.Federal jurisdiction of Court

The Court has throughout the State the federal jurisdiction with which it is invested by or under the Family Law Act or any other Commonwealth Act and any subsidiary legislation in force under such an Act.

36.Non‑federal jurisdictions of Court

(1)The Court has throughout the State the non‑federal jurisdictions conferred on it by or under this or any other Act.

(2)Without limiting subsection (1), the Court has non‑federal jurisdiction throughout the State, subject to the Family Law Act, the Adoption Act 1994, the Surrogacy Act 2008 and the Children and Community Services Act 2004, to make — 

(a)parenting orders in respect of; and

(b)orders in respect of the welfare of; and

(c)orders under section 71 in respect of the appointment and removal of the guardian of; and

(d)orders in relation to child bearing expenses and other expenses specified in this Act incurred with respect to,

any child of a marriage and any child whose parents were not married to each other at the time of the birth of the child or subsequently, whether or not the child is a member of a family.

(3)Subject to this Act, the Court has non‑federal jurisdiction under this Act to make — 

(a)a parenting order, other than a child maintenance order, in relation to a child; or

(b)an order with respect to the welfare of a child,

if — 

(c)the child in respect of whom the order is sought is then present in the State; and

(d)the applicant or the respondent in the proceedings in which the order is sought is resident in the State.

(4)Subject to this Act, the Court in exercising its non‑federal jurisdiction under this Act may make — 

(a)a child maintenance order; or

(b)any other order that is neither a parenting order in relation to a child nor an order with respect to the welfare of a child,

if — 

(c)the person against whom the order is sought; or

(d)the person for whose benefit the order is sought,

is resident in this State.

(4a)Without limiting subsection (1), the Court has jurisdiction under Part 5A to —

(a)make declarations and to revoke declarations that it has made;

(b)hear and decide all other matters under that Part,

and in particular the Court has jurisdiction to hear and decide the following —

(c)applications for orders with respect to property;

(d)applications for orders for the provision of maintenance.

(5)Subject to this section, the Court has non‑federal jurisdiction to make an order under this Act whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order took place or arose before the coming into operation of this Act or outside the State.

(6)Where a child the subject of proceedings appears to be a child in need of protection within the meaning of the Children and Community Services Act 2004 the Court has, in relation to the child, in addition to the powers conferred by this Act, all the powers of the Children’s Court.

[(7)deleted]

(8)Non‑federal jurisdiction conferred on the Court is exclusive of any other court except as provided under section 39 or where an appeal lies to the Supreme Court.

[Section 36 amended by No. 25 of 2002 s. 32; No. 34 of 2004 Sch. 2 cl. 10(3)-(5); No. 47 of 2008 s. 60.]

37.Principles to be applied, and matters to be considered, by Court in its non‑federal jurisdiction — FLA s. 43

(1)The Court must, in the exercise of its non‑federal jurisdiction under this Act, have regard, as is applicable to each case, to — 

(a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; and

(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; and

(c)the need to protect the rights of children and to promote their welfare; and

(d)the need to ensure protection from family violence; and

(e)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage.

(2)Subject to this Act, in exercising its non‑federal jurisdictions with respect to a child the Court may — 

(a)make such order as it thinks proper; or

(b)make an order until further order; or

(c)discharge or vary an order or suspend any part of an order and may revive the operation of any part of an order so suspended.

[Section 37 amended by No. 13 of 2013 s. 7.]

Division 2 — Jurisdiction of courts of summary jurisdiction

38.Federal jurisdiction of courts of summary jurisdiction

A court of summary jurisdiction constituted by a magistrate or a family law magistrate has the federal jurisdiction with which it is invested by or under the Family Law Act.

[Section 38 amended by No. 59 of 2004 s. 95.]

39.Non‑federal jurisdictions of courts of summary jurisdiction

Subject to Division 4 — 

(a)the Magistrates Court, constituted by a magistrate, sitting at a place outside the metropolitan region; and

(b)the Magistrates Court, constituted by a family law magistrate, sitting at any place in the State,

may exercise all the non‑federal jurisdictions of the Family Court of Western Australia except the functions of the Court under the Adoption Act 1994 or the Surrogacy Act 2008 and, in exercising such jurisdiction, the court must have regard to the principles and matters set out in section 37, where applicable.

[Section 39 amended by No. 25 of 2002 s. 33; No. 59 of 2004 s. 95; No. 47 of 2008 s. 61.]

40.Functions of officers of courts of summary jurisdiction

(1)In respect of the federal jurisdiction of courts of summary jurisdiction referred to in section 38, the officers of such courts have such functions as are authorised by the Family Law Act or as are provided for under this Act.

(2)In respect of the non‑federal jurisdictions of the Magistrates Court referred to in section 39(a), a registrar of that Court has the Principal Registrar’s functions under this Act, other than — 

(a)any judicial function; or

[(b)deleted]

(c)the function of conducting a conciliation or other conference.

[Section 40 amended by No. 59 of 2004 s. 95; No. 35 of 2006 s. 113.]

Division 3 — Jurisdiction of other courts

41.Courts making family violence orders have certain jurisdiction under this Act

If, under another written law, a court has jurisdiction to make a family violence order then, for the purposes of this Act, the court has jurisdiction in relation to matters arising under section 176.

[Section 41 amended by No. 35 of 2006 s. 142(2).]

Division 4 — Transfer, staying and dismissal of proceedings

[42.Deleted by No. 59 of 2004 s. 95.]

43.Transfer of proceedings from courts of summary jurisdiction in certain cases — FLA s. 69N

(1)This section applies —

(a)if —

(i)the Magistrates Court (the court) is dealing with proceedings in which a parenting order (other than a child maintenance order) or an order relating to the welfare of a child is sought; and

(ii)the respondent, in answer to the application by which the proceedings are instituted, seeks an order different from that sought in the application; and

(iii)the court is not constituted by a family law magistrate;

or

(b)if —

(i)the Magistrates Court (the court) is dealing with proceedings that concern property of a total value exceeding the ceiling amount; and

(ii)the respondent, in answer to the application by which the proceedings are instituted, seeks an order different from that sought in the application.

(2)The court must, before going on to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to the Court.

(3)If the parties do not consent to the court hearing and determining the proceedings, the court must transfer the proceedings accordingly.

(4)If the parties consent to the court hearing and determining the proceedings — 

(a)a party is not entitled, without leave of the court, subsequently to object to the proceedings being heard and determined by the court; but

(b)the court may, on its own initiative, transfer the proceedings to the Court.

(4a)A reference in subsection (1)(b) to proceedings in respect of property does not include a reference to proceedings with respect to arrears of maintenance.

(4b)In determining the value of any property for the purposes of subsection (1)(b), any mortgage, lien, charge or other security over the property is to be disregarded.

(5)If the court subsequently gives leave to a party to object to the proceedings being heard and determined by the court, the court must transfer the proceedings to the Court.

(6)The Court must deal with the proceedings transferred to it as if the proceedings had been instituted in the Court.

(7)Failure by the Magistrates Court to comply with this section in relation to proceedings does not invalidate any order made by the court in the proceedings.

(8)Subsection (7) does not affect the duty of the Magistrates Court to comply with this section.

(9)In this section —

ceiling amount has the same meaning as in section 46(1AA) of the Family Law Act unless otherwise prescribed in the regulations.

[Section 43 amended by No. 25 of 2002 s. 34; No. 59 of 2004 s. 93 and 95; No. 35 of 2006 s. 36.]

43A.Transfer of proceedings from Magistrates Court in other cases

(1)This section applies if —

(a)proceedings in relation to property of a total value exceeding $20 000, or such other amount, if any, as is prescribed in the regulations, are instituted in the Magistrates Court (the court); and

(b)the court is not constituted by a family law magistrate; and

(c)the respondent, in answer to the application by which the proceedings are instituted, seeks an order different from that sought in the application.

(1a)The court must, before going on to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to the Court.

(1b)If the parties do not consent to the court hearing and determining the proceedings, the court must transfer the proceedings to the Court.

(2)A reference in subsection (1) to proceedings in respect of property does not include a reference to proceedings with respect to arrears of maintenance.

(3)In determining the value of any property for the purposes of subsection (1), any mortgage, lien, charge or other security over the property is to be disregarded.

(4)If proceedings referred to in subsection (1) are instituted in the court and the parties consent to the proceedings being heard and determined by that court, a party is not entitled, without the leave of the court, subsequently to object to the proceedings being so heard and determined but, where the court subsequently gives leave to a party to object to the proceedings being so heard and determined, the court is to transfer the proceedings to the Court.

(5)Where proceedings referred to in subsection (1) are before it, the court may transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the court to hear and determine the proceedings.

(6)Before transferring proceedings under this section, the court may make such orders as it considers necessary pending the disposal of the proceedings by the Court.

(7)Where proceedings are transferred or removed to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally instituted in that court.

(8)Failure by the court to comply with this section does not invalidate any order of the court in the proceedings.

[Section 43A inserted by No. 25 of 2002 s. 35; amended by No. 59 of 2004 s. 94.]

44.Transfer of proceedings to another court — FLA s. 45(2)

(1)Without limiting section 43, if in the exercise of its jurisdiction it appears to the Court or to the Magistrates Court that it is in the interests of justice, or of convenience to the parties, that the proceedings before it be dealt with in another court, the Court or the Magistrates Court, as the case may be, may, on its own motion or otherwise, transfer the proceedings to the other court.

(2)A transfer under subsection (1) may be made on the application of any party to the proceedings.

[Section 44 amended by No. 25 of 2002 s. 53; No. 59 of 2004 s. 95.]

45.Stay or dismissal of proceedings

Where proceedings are before the Court or the Magistrates Court in the exercise of a non‑federal jurisdiction and it appears to the Court or the court that — 

(a)related proceedings, being proceedings within or outside the State, are pending in another court; and

(b)it is in the interests of justice to stay or dismiss the proceedings in the Court or the Magistrates Court,

the Court or the Magistrates Court may stay the proceedings before it for such time as it thinks fit or it may dismiss those proceedings.

[Section 45 amended by No. 59 of 2004 s. 95.]

46.Orders on transfer or staying proceedings

(1)Subject to subsection (2), before transferring or staying proceedings under this Division a court may adjourn the proceedings and may make such orders pending the disposal of the proceedings as it considers necessary including orders directing — 

(a)the parties to attend a conference with a family counsellor or family dispute resolution practitioner to discuss matters affecting the welfare of any child affected by the proceedings and to resolve the difference (if any) between the parties; and

(b)that a report in accordance with section 73 be obtained from a family consultant; and

(c)the payment of child bearing expenses, or, if it is not practicable to so direct, the payment of such periodic or other sums as the court thinks desirable; and

(d)that a party attend a conciliation conference with the Principal Registrar, a registrar or a deputy registrar.

(2)In addition to the orders referred to in subsection (1), the Magistrates Court, if constituted by a family law magistrate, may —

(a)make such interim orders under Part 5A Division 2; or

(b)make such interim orders, or grant such injunctions, under section 235A,

as it considers necessary.

[Section 46 amended by No. 25 of 2002 s. 36; No. 59 of 2004 s. 95; No. 35 of 2006 s. 114.]

46A.Change of venue — FLA s. 27A

The Court, the Magistrates Court or a judge may, at any stage of a proceeding in the Court or Magistrates Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court, Magistrates Court or judge imposes.

[Section 46A inserted by No. 35 of 2006 s. 59.]

Part 4  Non‑court based family services

[Heading inserted by No. 35 of 2006 s. 115.]

Division 1 — Family counselling

[Heading inserted by No. 35 of 2006 s. 115.]

47.Term used: family counselling — FLA s. 10B

For the purposes of this Act —

family counselling means a process in which a family counsellor helps —

(a)one or more persons to deal with personal and interpersonal issues arising from relationships covered by this Act; or

(b)one or more persons (including children) who are affected, or likely to be affected, by the breakdown of a relationship covered by this Act to deal with either or both of the following —

(i)personal and interpersonal issues;

(ii)issues relating to the care of children.

[Section 47 inserted by No. 35 of 2006 s. 115.]

48.Term used: family counsellor — FLA s. 10C

For the purposes of this Act —

family counsellor means —

(a)a person who is a family counsellor for the purposes of the Family Law Act; or

(b)a person who is authorised to act under section 34C, or engaged under section 34D, as a family counsellor.

[Section 48 inserted by No. 35 of 2006 s. 115.]

49.Confidentiality of communications in family counselling — FLA s. 10D

(1)A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.

(2)A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

(3)A family counsellor may disclose a communication if consent to the disclosure is given by —

(a)if the person who made the communication has attained the age of 18 years, that person; or

(b)if the person who made the communication is a child who has not attained the age of 18 years —

(i)each person who has parental responsibility for the child; or

(ii)a court.

(4)A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of —

(a)protecting a child from the risk of harm (whether physical or psychological); or

(b)preventing or lessening a serious and imminent threat to the life or health of a person; or

(c)reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

(d)preventing or lessening a serious and imminent threat to the property of a person; or

(e)reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

(f)if an independent children’s lawyer is representing a child’s interests, assisting the lawyer to do so properly.

(5)A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 of the Commonwealth) for research relevant to families.

(6)Evidence that would be inadmissible because of section 50 is not admissible merely because this section requires or authorises its disclosure.

(7)In this section —

communication includes admission.

[Section 49 inserted by No. 35 of 2006 s. 115.]

50.Admissibility of communications in family counselling and in referrals from family counselling — FLA s. 10E

(1)Evidence of anything said, or any admission made, by or in the company of —

(a)a family counsellor conducting family counselling; or

(b)a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person,

is not admissible —

(c)in any court (whether of a kind referred to in section 8(a) or (b) or otherwise); or

(d)in any proceedings before a board, tribunal or person authorised to hear evidence.

(2)Subsection (1) does not apply to —

(a)an admission by an adult that indicates that a child who has not attained the age of 18 years has been abused or is at risk of abuse; or

(b)a disclosure by a child who has not attained the age of 18 years that indicates that the child has been abused or is at risk of abuse,

unless, in the opinion of the court or board, tribunal or person authorised to hear evidence referred to in subsection (1), there is sufficient evidence of the admission or disclosure available to the court from other sources.

(3)A family counsellor who refers a person to a professional (within the meaning of subsection (1)(b)) must inform the professional of the effect of this section.

[Section 50 inserted by No. 35 of 2006 s. 115.]

Division 2 — Family dispute resolution

[Heading inserted by No. 35 of 2006 s. 115.]

51.Term used: family dispute resolution — FLA s. 10F

For the purposes of this Act —

family dispute resolution is a process (other than a judicial process) —

(a)in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and

(b)in which the practitioner is independent of all of the parties involved in the process.

[Section 51 inserted by No. 35 of 2006 s. 115.]

52.Term used: family dispute resolution practitioner — FLA s. 10G

For the purposes of this Act —

family dispute resolution practitioner means —

(a)a person who is a family dispute resolution practitioner for the purposes of the Family Law Act; or

(b)a person who is authorised to act under section 34C, or engaged under section 34D, as a family dispute resolution practitioner.

[Section 52 inserted by No. 35 of 2006 s. 115.]

53.Confidentiality of communications in family dispute resolution — FLA s. 10H

(1)A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.

(2)A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

(3)A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by —

(a)if the person who made the communication has attained the age of 18 years, that person; or

(b)if the person who made the communication is a child who has not attained the age of 18 years —

(i)each person who has parental responsibility for the child; or

(ii)a court.

(4)A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of —

(a)protecting a child from the risk of harm (whether physical or psychological); or

(b)preventing or lessening a serious and imminent threat to the life or health of a person; or

(c)reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

(d)preventing or lessening a serious and imminent threat to the property of a person; or

(e)reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

(f)if an independent children’s lawyer is representing a child’s interests, assisting the lawyer to do so properly.

(5)A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 of the Commonwealth) for research relevant to families.

(6)A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under section 66H(7).

(7)Evidence that would be inadmissible because of section 54 is not admissible merely because this section requires or authorises its disclosure.

(8)In this section —

communication includes admission.

[Section 53 inserted by No. 35 of 2006 s. 115.]

54.Admissibility of communications in family dispute resolution and in referrals from family dispute resolution — FLA s. 10J

(1)Evidence of anything said, or any admission made, by or in the company of —

(a)a family dispute resolution practitioner conducting family dispute resolution; or

(b)a person (the professional) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person,

is not admissible —

(c)in any court (whether of a kind referred to in section 8(a) or (b) or otherwise); or

(d)in any proceedings before a board, tribunal or person authorised to hear evidence.

(2)Subsection (1) does not apply to —

(a)an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

(b)a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse,

unless, in the opinion of the court, board, tribunal or person authorised to hear evidence referred to in subsection (1), there is sufficient evidence of the admission or disclosure available to the court from other sources.

(3)Subsection (1) does not apply to information necessary for a practitioner to give a certificate under section 66H(7).

(4)A family dispute resolution practitioner who refers a person to a professional (within the meaning of subsection (1)(b)) must inform the professional of the effect of this section.

[Section 54 inserted by No. 35 of 2006 s. 115.]

55.Family dispute resolution practitioners must comply with regulations — FLA s. 10K

(1)The regulations may prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services they provide.

(2)The regulations may prescribe penalties not exceeding $1 100 in respect of offences against regulations made for the purposes of subsection (1).

[Section 55 inserted by No. 35 of 2006 s. 115.]

Division 3 — Arbitration

[Heading inserted by No. 35 of 2006 s. 115.]

56.Meaning of arbitration — FLA s. 10L

(1)For the purposes of this Act —

arbitration means a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

(2)Arbitration may be either —

(a)section 65M arbitration, which is arbitration of Part 5A Division 2 proceedings carried out as a result of an order made under section 65M; or

(b)relevant property or financial arbitration, which is arbitration (other than section 65M arbitration) of —

(i)Part 5A Division 2 or 3 proceedings or section 221 proceedings; or

(ii)any part of such proceedings; or

(iii)any matter arising in such proceedings; or

(iv)a dispute about a matter with respect to which such proceedings could be instituted.

[Section 56 inserted by No. 35 of 2006 s. 115.]

57.Meaning of arbitrator — FLA s. 10M

An arbitrator is a person who meets the requirements prescribed in the regulations to be an arbitrator.

[Section 57 inserted by No. 35 of 2006 s. 115.]

58.Arbitrators may charge fees for their services — FLA s. 10N

(1)An arbitrator conducting arbitration may charge the parties to the arbitration fees for conducting it.

(2)The arbitrator must give written information about those fees to the parties before the arbitration starts.

[Section 58 inserted by No. 35 of 2006 s. 115.]

59.Immunity of arbitrators — FLA s. 10P

An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a judge has in performing the functions of a judge.

[Section 59 inserted by No. 35 of 2006 s. 115.]

Part 4A  Family consultants

[Heading inserted by No. 35 of 2006 s. 115.]

Division 1 — About family consultants

[Heading inserted by No. 35 of 2006 s. 115.]

60.Functions of family consultants — FLA s. 11A

The functions of family consultants are to provide services in relation to proceedings under this Act, including —

(a)assisting and advising people involved in the proceedings; and

(b)assisting and advising courts, and giving evidence, in relation to the proceedings; and

(c)helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and

(d)reporting to the court under section 73; and

(e)advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.

[Section 60 inserted by No. 35 of 2006 s. 115.]

[60A‑60F.Deleted by No. 35 of 2006 s. 115.]

61.Term used: family consultant — FLA s. 11B

For the purposes of this Act —

family consultant means a person who is a family consultant for the purposes of the Family Law Act.

[Section 61 inserted by No. 35 of 2006 s. 115.]

62.Admissibility of communications with family consultants and referrals from family consultants — FLA s. 11C

(1)Evidence of anything said, or any admission made, by or in the company of —

(a)a family consultant performing the functions of a family consultant; or

(b)a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person,

is admissible in proceedings under this Act.

(2)Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).

(3)Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if —

(a)it is an admission by an adult that indicates that a child who has not attained the age of 18 years has been abused or is at risk of abuse; or

(b)it is a disclosure by a child who has not attained the age of 18 years that indicates that the child has been abused or is at risk of abuse,

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

[Section 62 inserted by No. 35 of 2006 s. 115.]

[62A.Deleted by No. 35 of 2006 s. 115.]

63.Immunity of family consultants — FLA s. 11D

A family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a judge has in performing the functions of a judge.

[Section 63 inserted by No. 35 of 2006 s. 115.]

Division 2 — Courts’ use of family consultants

[Heading inserted by No. 35 of 2006 s. 115.]

64.Courts to consider seeking advice from family consultants — FLA s. 11E

(1)If, under this Act, a court has the power to —

(a)order a person to attend family counselling or family dispute resolution; or

(b)order a person to participate in a course, program or other service (other than arbitration); or

(c)order a person to attend appointments with a family consultant; or

(d)advise or inform a person about family counselling, family dispute resolution or other courses, programs or services,

the court —

(e)may, before exercising the power, seek the advice of a family consultant as to the services appropriate to the needs of the person and the most appropriate provider of those services; and

(f)must, before exercising the power, consider seeking that advice.

(2)If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought —

(a)whom the court is seeking advice from; and

(b)the nature of the advice the court is seeking.

[Section 64 inserted by No. 35 of 2006 s. 115.]

65.Court may order parties to attend, or arrange for child to attend, appointments with family consultant — FLA s. 11F

(1)A court exercising jurisdiction in proceedings under this Act may make either or both of the following kinds of order —

(a)an order directing one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant;

(b)an order directing one or more parties to the proceedings to arrange for a child to attend an appointment (or a series of appointments) with a family consultant.

(2)When making an order under subsection (1), a court must inform the parties of the effect of section 65A.

(3)A court may make orders under this section —

(a)on its own initiative; or

(b)on the application of —

(i)a party to the proceedings; or

(ii)an independent children’s lawyer representing a child’s interests under an order made under section 164.

[Section 65 inserted by No. 35 of 2006 s. 115; amended by No. 13 of 2013 s. 23.]

65A.Consequences of failure to comply with order under section 65 — FLA s. 11G

(1)If a person who is ordered to attend an appointment with a family consultant under section 65 fails to comply with —

(a)the order made by the court; or

(b)any instruction the consultant gives to the person,

the consultant must report the failure to the court.

(2A)If —

(a)a person fails to comply with an order under section 65 that he or she arrange for a child to attend an appointment with a family consultant; or

(b)a child fails to attend an appointment with a family consultant as arranged in compliance with an order under section 65,

the consultant must report the failure to the court.

(2)On receiving a report under subsection (1) or (2A), the court may make any further orders it considers appropriate.

(3)The court may make orders under subsection (2) —

(a)on its own initiative; or

(b)on the application of —

(i)a party to the proceedings; or

(ii)an independent children’s lawyer representing a child’s interests under an order made under section 164.

[Section 65A inserted by No. 35 of 2006 s. 115; amended by No. 13 of 2013 s. 24.]

Part 4B  Obligations to inform people about non‑court based family services and about court’s processes and services

[Heading inserted by No. 35 of 2006 s. 115.]

Division 1 — Introduction

[Heading inserted by No. 35 of 2006 s. 115.]

65B.Objects of this Part — FLA s. 12A

The objects of this Part are —

(a)to ensure that parents or de facto partners considering ending their relationship are informed about the services available to help with a possible reconciliation, in situations where a reconciliation seems a reasonable possibility; and

(b)to ensure that parents or people affected, or likely to be affected, by the breakdown of a relationship covered by this Act are informed about the services available to help them adjust to —

(i)the breakdown of the relationship; and

(ii)orders made under this Act;

and

(c)to ensure that parents or people affected, or likely to be affected, by the breakdown of a relationship covered by this Act are informed about ways of resolving disputes other than by applying for orders under this Act.

[Section 65B inserted by No. 35 of 2006 s. 115.]

Division 2 — Kind of information to be provided

[Heading inserted by No. 35 of 2006 s. 115.]

65C.Prescribed information about non‑court based family services and court’s processes and services — FLA s. 12B

(1)The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non‑court based family services and court’s processes and services.

(2)Without limitation, information prescribed under this section must include information about —

(a)the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and

(b)the services provided by family counsellors and family dispute resolution practitioners to help people affected by the breakdown of relationships covered by this Act; and

(c)the steps involved in the proposed proceedings; and

(d)the role of family consultants; and

(e)the arbitration facilities available to arbitrate disputes in relation to the breakdown of relationships covered by this Act.

[Section 65C inserted by No. 35 of 2006 s. 115.]

65D.Prescribed information about reconciliation — FLA s. 12C

The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between partners to a de facto relationship covered by this Act.

[Section 65D inserted by No. 35 of 2006 s. 115.]

65E.Prescribed information about Part 5 proceedings —FLA s. 12D

(1)The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part 5.

(2)Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.

[Section 65E inserted by No. 35 of 2006 s. 115.]

Division 3 — Who must provide information and when

[Heading inserted by No. 35 of 2006 s. 115.]

65F.Obligations on legal practitioners — FLA s. 12E

(1)A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 65C.

(2)A legal practitioner who is consulted by, or who is representing, a person who is a party to financial or Part 5 proceedings in relation to a relationship covered by this Act must give the person documents containing the information prescribed under section 65D.

(3)A legal practitioner representing a party in proceedings under Part 5 must give the party documents containing the information prescribed under section 65E.

(4)A legal practitioner does not have to comply with subsection (1), (2) or (3) if the practitioner has reasonable grounds to believe that the person has already been given documents containing the prescribed information mentioned in that subsection.

(5)A legal practitioner does not have to comply with subsection (2) if the practitioner considers that there is no reasonable possibility of a reconciliation between the de facto partners.

[Section 65F inserted by No. 35 of 2006 s. 115.]

65G.Obligations on executive manager — FLA s. 12F

(1)The executive manager must ensure that any person who is considering instituting proceedings under this Act is, on the first occasion the person deals with a registry of the court, given documents containing the information prescribed under —

(a)section 65C; and

(b)section 65D.

(2)The executive manager must ensure that, if a person involved in proceedings under this Act requests an officer or staff member of the court for information about family counselling services or family dispute resolution services, the person is given documents containing information about those services.

[Section 65G inserted by No. 35 of 2006 s. 115.]

65H.Obligations on family counsellors, family dispute resolution practitioners and arbitrators — FLA s. 12G

(1)A family counsellor, family dispute resolution practitioner or arbitrator who deals with a person considering instituting financial or Part 5 proceedings in relation to a relationship covered by this Act must give the person (and in appropriate cases, that person’s de facto partner) documents containing the information prescribed under section 65D.

(2)A family counsellor, family dispute resolution practitioner or arbitrator does not have to comply with subsection (1), if he or she —

(a)has reasonable grounds to believe that the person has already been given documents containing the prescribed information; or

(b)considers that there is no reasonable possibility of a reconciliation between the de facto partners.

[Section 65H inserted by No. 35 of 2006 s. 115.]

Part 4C — Court’s powers in relation to court and non‑court based family services

[Heading inserted by No. 35 of 2006 s. 115.]

Division 1 — Introduction

[Heading inserted by No. 35 of 2006 s. 115.]

65I.Objects of this Part — FLA s. 13A

(1)The objects of this Part are —

(a)to facilitate access to family counselling —

(i)to help de facto partners considering ending their de facto relationship to reconcile; and

(ii)to help people adjust to the breakdown of a relationship covered by this Act; and

(iii)to help people adjust to court orders under this Act;

and

(b)to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and

(c)to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and

(d)to give the court the power to require parties to proceedings under this Act to make use of court or non‑court based family services appropriate to the needs of the parties.

(2)The object mentioned in subsection (1)(b) also lies behind the general requirement in section 66H for family dispute resolution services to be used before an application for a Part 5 Order is made.

[Section 65I inserted by No. 35 of 2006 s. 115.]

Division 2 — Help with reconciliation

[Heading inserted by No. 35 of 2006 s. 115.]

65J.Court to accommodate possible reconciliations — FLA s. 13B

(1)If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the de facto relationship, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation.

(2)If the court adjourns the proceedings under subsection (1), the court must advise the parties to attend family counselling, or use the services of another appropriate person or organisation.

(3)If, after an adjournment under subsection (1), either of the parties requests that the proceedings resume, the court must resume the proceedings as soon as practicable.

[Section 65J inserted by No. 35 of 2006 s. 115.]

Division 3 — Referrals to family counselling, family dispute resolution and other family services

[Heading inserted by No. 35 of 2006 s. 115.]

65K.Court may refer parties to family counselling, family dispute resolution and other family services — FLA s. 13C

(1)A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders —

(a)that one or more of the parties to the proceedings attend family counselling; and

(b)that the parties to the proceedings attend family dispute resolution; and

(c)that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

(2)The court may suggest a particular purpose for the attendance or participation.

(3)The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.

(4)The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.

(5)The court may make orders under this section —

(a)on its own initiative; or

(b)on the application of —

(i)a party to the proceedings; or

(ii)an independent children’s lawyer representing a child’s interests under an order made under section 164.

[Section 65K inserted by No. 35 of 2006 s. 115.]

65L.Consequences of failure to comply with order under section 65K — FLA s. 13D

(1)If a party fails to comply with an order of a court under section 65K, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court.

(2)On receiving the report, the court may make any further orders it considers appropriate.

(3)The court may make orders under subsection (2) —

(a)on its own initiative; or

(b)on the application of —

(i)a party to the proceedings; or

(ii)an independent children’s lawyer representing a child’s interests under an order made under section 164.

[Section 65L inserted by No. 35 of 2006 s. 115.]

Division 4 — Court’s role in relation to arbitration of disputes

[Heading inserted by No. 35 of 2006 s. 115.]

65M.Court may refer Part 5A proceedings to arbitration — FLA s. 13E

(1)With the consent of all of the parties to the proceedings, a court exercising jurisdiction in Part 5A proceedings may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration.

(2)If the court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make any additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.

[Section 65M inserted by No. 35 of 2006 s. 115.]

65N.Court may make orders to facilitate arbitration of certain disputes — FLA s. 13F

A court may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.

[Section 65N inserted by No. 35 of 2006 s. 115.]

65O.Court may determine questions of law referred by arbitrator — FLA s. 13G

(1)An arbitrator of section 65M arbitration or relevant property or financial arbitration may, at any time before making an award in the arbitration, refer a question of law arising in relation to the arbitration for determination by a single judge of the Court.

(2)The arbitrator may do so —

(a)on his or her own initiative; or

(b)at the request of one or more of the parties to the arbitration if the arbitrator considers it appropriate to do so.

(3)The arbitrator must not make an award in the arbitration before the judge or Family Law Magistrate has either —

(a)determined the question of law; or

(b)remitted the matter to the arbitrator having found that no question of law arises.

[Section 65O inserted by No. 35 of 2006 s. 115.]

65P.Awards made in arbitration may be registered in court — FLA s. 13H

(1)A party to an award made in section 65M arbitration or in relevant property or financial arbitration may register the award —

(a)in the case of section 65M arbitration, in the court that ordered the arbitration; or

(b)otherwise, in any court.

(2)An award registered under subsection (1) has effect as if it were a decree made by that court.

[Section 65P inserted by No. 35 of 2006 s. 115.]

65Q.Court can review registered awards — FLA s. 13J

(1)A party to a registered award made in section 65M arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by a single judge of the Court.

(2)On a review of an award under this section, the judge or Family Law Magistrate may —

(a)determine all questions of law arising in relation to the arbitration; and

(b)make such decrees as the judge or magistrate thinks appropriate, including a decree affirming, reversing or varying the award.

[Section 65Q inserted by No. 35 of 2006 s. 115.]

65R.Court may set aside registered awards — FLA s. 13K

(1)If an award made in section 65M arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in the Court, the Court may make a decree affirming, reversing or varying the award or agreement.

(2)The Court may only make a decree under subsection (1) if the Court is satisfied that —

(a)the award or agreement was obtained by fraud (including non‑disclosure of a material matter); or

(b)the award or agreement is void, voidable or unenforceable; or

(c)in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or

(d)the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

[Section 65R inserted by No. 35 of 2006 s. 115.]

Part 5 — Children

Division 1 — Introductory

Subdivision 1 — Objects and principles

[Heading inserted by No. 35 of 2006 s. 81.]

66.Object of Part and principles underlying it — FLA s. 60B

(1)The objects of this Part are to ensure that the best interests of children are met by —

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests) —

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)For the purposes of subsection (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right —

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary —

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture.

(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 as ratified by Australia at 17 December 1990.

[Section 66 inserted by No. 35 of 2006 s. 82; amended by No. 13 of 2013 s. 8.]

Subdivision 2 — Best interests of the child: court proceedings

[Heading inserted by No. 13 of 2013 s. 9.]

66A.Child’s best interests paramount consideration in making parenting order — FLA s. 60CA

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

[Section 66A inserted by No. 35 of 2006 s. 83.]

66B.Proceedings to which Subdivision applies — FLA s. 60CB

(1)This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

(2)This Subdivision also applies to proceedings, in relation to a child, to which section 80(2) or (6) or 176 applies.

[Section 66B inserted by No. 35 of 2006 s. 83.]

66C.How a court determines what is in child’s best interests — FLA s. 60CC

(1)Subject to subsection (6), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

(2)The primary considerations are —

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(3A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in subsection (2)(b).

(3)Additional considerations are —

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; and

(b)the nature of the relationship of the child with —

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

and

(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity —

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

and

(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child; and

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

and

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; and

(f)the capacity of —

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs; and

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; and

(h)if the child is an Aboriginal child or a Torres Strait Islander child —

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

and

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; and

(j)any family violence involving the child or a member of the child’s family; and

(k)if a family violence order applies, or has applied, to the child or a member of the child’s family — any relevant inferences that can be drawn from the order, taking into account the following —

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)any other relevant matter;

and

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

(m)any other fact or circumstance that the court thinks is relevant.

[(4), (5)deleted]

(6)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

(7)For the purposes of subsection (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right —

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary —

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture.

[Section 66C inserted by No. 35 of 2006 s. 83; amended by No. 13 of 2013 s. 10.]

66D.How views of child are expressed — FLA s. 60CD

(1)A court required under section 66C(3)(a) to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child is to inform itself of the views expressed by a child in accordance with this section.

(2)The court may inform itself of views expressed by a child —

(a)by having regard to anything contained in a report given to the court under section 73(2); or

(b)by making an order under section 164 for the child’s interests in the proceedings to be independently represented by a lawyer; or

(c)subject to the rules, by such other means as the court thinks appropriate.

[Section 66D inserted by No. 35 of 2006 s. 83.]

66E.Children not required to express views — FLA s. 60CE

Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.

[Section 66E inserted by No. 35 of 2006 s. 83.]

66F.Informing court of relevant family violence orders — FLA s. 60CF

(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.

(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

[Section 66F inserted by No. 35 of 2006 s. 83.]

66G.Court to consider risk of family violence — FLA s. 60CG

(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order —

(a)is consistent with any family violence order; and

(b)does not expose a person to an unacceptable risk of family violence.

(2)For the purposes of subsection (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

[Section 66G inserted by No. 35 of 2006 s. 83.]

66HA.Informing court of care arrangements under child welfare laws — FLA s. 60CH

(1)If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.

(2)If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.

(3)Failure to inform the court of the matter does not affect the validity of any order made by the court.

(4)However, subsection (3) does not limit the operation of section 202.

[Section 66HA inserted by No. 13 of 2013 s. 11.]

66HB.Informing court of notifications to, and investigations by, prescribed government agencies — FLA s. 60CI

(1)In this section —

prescribed government agency means an agency that is a prescribed government agency for the purposes of section 202K.

(2)If —

(a)a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of —

(i)a notification or report (however described) to a prescribed government agency; or

(ii)an investigation, inquiry or assessment (however described) by a prescribed government agency;

and

(b)the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse,

that party must inform the court of the matter.

(3)If —

(a)a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of —

(i)a notification or report (however described) to a prescribed government agency; or

(ii)an investigation, inquiry or assessment (however described) by a prescribed government agency;

and

(b)the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse,

that person may inform the court of the matter.

(4)Failure to inform the court of the matter does not affect the validity of any order made by the court.

[Section 66HB inserted by No. 13 of 2013 s. 11.]

Subdivision 3A — Best interests of the child: adviser’s obligations

[Heading inserted by No. 13 of 2013 s. 12.]

66HC.Adviser’s obligations in relation to best interests of child — FLA  s. 60D

(1)In this section —

adviser means a person who is —

(a)a legal practitioner; or

(b)a family counsellor; or

(c)a family dispute resolution practitioner; or

(d)a family consultant.

(2)If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must —

(a)inform the person that the person should regard the best interests of the child as the paramount consideration; and

(b)encourage the person to act on the basis that the child’s bests interests are best met —

(i)by the child having a meaningful relationship with both of the child’s parents; and

(ii)by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(iii)in applying the considerations set out in subparagraphs (i) and (ii) — by giving greater weight to the consideration set out in subparagraph (ii).

[Section 66HC inserted by No. 13 of 2013 s. 12.]

Subdivision 3 — Family dispute resolution

[Heading inserted by No. 35 of 2006 s. 83.]

66H.Attending family dispute resolution before applying for Part 5 Order — FLA s. 60I

(1)In this section —

dispute resolution provisions of the rules means the provisions of the Family Law Rules 2004 of the Commonwealth referred to in section 60I(12) of the Family Law Act to the extent, if any, that those rules are adopted by the rules under this Act.

(2)The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by a Part 5 Order make a genuine effort to resolve that dispute by family dispute resolution before the Part 5 Order is applied for.

(3)The dispute resolution provisions of the rules (with such modifications as are necessary) must be complied with before an application is made under this Act for a parenting order if the application is made —

(a)on or after the commencement of this section; and

(b)before 1 July 2007.

(4)Subsections (6) to (10) apply to an application for a Part 5 Order in relation to a child if —

(a)the application is made on or after 1 July 2007 and before the date fixed by Proclamation for the purposes of this paragraph; and

(b)none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part 5 Order in relation to the child.

(5)Subsections (6) to (10) apply to all applications for a Part 5 Order in relation to a child that are made on or after the date fixed by Proclamation for the purposes of this subsection.

(6)Subject to subsection (8), a court must not hear an application for a Part 5 Order in relation to a child unless —

(a)the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (7); and

(b)the certificate is filed with the application for the Part 5 Order.

(7)A family dispute resolution practitioner may give one of these kinds of certificates to a person —

(a)a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;

(b)a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

(c)a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;

(d)a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues.

(8)Subsection (6) does not apply to an application for a Part 5 Order in relation to a child if —

(a)the applicant is applying for the order —

(i)to be made with the consent of all the parties to the proceedings; or

(ii)in response to an application that another party to the proceedings has made for a Part 5 Order;

or

(b)the court is satisfied that there are reasonable grounds to believe that —

(i)there has been abuse of the child by one of the parties to the proceedings; or

(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

(iii)there has been family violence by one of the parties to the proceedings; or

(iv)there is a risk of family violence by one of the parties to the proceedings;

or

(c)all the following conditions are satisfied —

(i)the application is made in relation to a particular issue;

(ii)a Part 5 Order has been made in relation to that issue within the period of 12 months before the application is made;

(iii)the application is made in relation to a contravention of the order by a person;

(iv)the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order;

or

(d)the application is made in circumstances of urgency; or

(e)one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or

(f)other circumstances specified in the regulations are satisfied.

(9)If —

(a)a person applies for a Part 5 Order; and

(b)the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and

(c)subsection (6) does not apply to the application because of subsection (8),

the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.

(10)The validity of —

(a)proceedings on an application for a Part 5 Order; or

(b)any order made in those proceedings,

is not affected by a failure to comply with subsection (6) in relation to those proceedings.

[Section 66H inserted by No. 35 of 2006 s. 83.]

66I.Family dispute resolution not attended because of child abuse or family violence — FLA s. 60J

(1)If —

(a)section 66H(6) to (10) apply to an application for a Part 5 Order (see section 66H(4) and (5)); and

(b)section 66H(6) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that —

(i)there has been abuse of the child by one of the parties to the proceedings; or

(ii)there has been family violence by one of the parties to the proceedings,

a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.

(2)Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that —

(a)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

(b)there is a risk of family violence by one of the parties to the proceedings.

(3)The validity of —

(a)proceedings on an application for a Part 5 Order; or

(b)any order made in those proceedings,

is not affected by a failure to comply with subsection (1) in relation to those proceedings.

(4)If —

(a)the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and

(b)subsection (2) does not apply,

the executive manager of the court concerned must ensure that the applicant is referred to a family counsellor or family dispute resolution practitioner in order to obtain information about those matters.

[Section 66I inserted by No. 35 of 2006 s. 83.]

[66J.Deleted by No. 13 of 2013 s. 13.]

Division 2 — Parental responsibility

67.What this Division does — FLA s. 61A

This Division deals with the concept of parental responsibility including, in particular — 

(a)what parental responsibility is; and

(b)who has parental responsibility; and

(c)matters relating to appointment of guardians.

68.Term used: parental responsibility — FLA s. 61B

In this Part — 

parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

69.Each parent has parental responsibility (subject to court orders) — FLA s. 61C

(1)Each of the parents of a child who is under 18 years of age has parental responsibility for the child.

(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.

(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

70.Parenting orders and parental responsibility — FLA s. 61D

(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) — 

(a)expressly provided for in the order; or

(b)necessary to give effect to the order.

70A.Presumption of equal shared parental responsibility when making parenting orders — FLA s. 61DA

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in —

(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

[Section 70A inserted by No. 35 of 2006 s. 84.]

70B.Application of presumption of equal shared parental responsibility after interim parenting order made — FLA s. 61DB

If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

[Section 70B inserted by No. 35 of 2006 s. 84.]

71.Appointment and responsibilities of guardian

(1)A person who is appointed under this section as a child’s guardian has parental responsibility for the child.

(2)A court may appoint a person to be the guardian of a child — 

(a)if no person has parental responsibility for the child; or

(b)if a parenting order that deals with whom a child is to live with has been made in favour of a person who has subsequently died or who cannot be found or refuses to act.

(3)Subject to subsections (4) and (5), a person who has parental responsibility for a child may, by deed or will, appoint any person or 2 or more persons jointly to be the guardian or guardians of the child after the person’s death, and an appointment so made has effect after the person’s death in accordance with the appointment.

(4)If a court has declared that a person must not exercise the power in subsection (3) or that any exercise of the power is of no effect then — 

(a)the person cannot make an appointment under subsection (3); and

(b)if the person purports to make the appointment, the appointment is of no effect.

(5)An appointment under subsection (3) has effect after the appointor’s death — 

(a)if at the time of the appointer’s death the appointer was the only person with parental responsibility for the child; and

(b)subject to any order of a court.

(6)A court may, on being satisfied that it is in the best interests of a child, remove from office any guardian, whether appointed under the provisions of this Act or by will or otherwise and may also, if it considers it to be in the best interests of the child, appoint another guardian in place of the guardian so removed.

[Section 71 amended by No. 35 of 2006 s. 145.]

71A.Application to Aboriginal or Torres Strait Islander children — FLA s. 61F

In —

(a)applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or

(b)identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child,

the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

[Section 71A inserted by No. 35 of 2006 s. 85.]

Division 3 — Reports relating to children under 18

[Heading inserted by No. 35 of 2006 s. 116.]

72.Court’s obligation to inform people to whom orders under this Part apply about family counselling, family dispute resolution and other family services — FLA s. 62B

If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order.

[Section 72 inserted by No. 35 of 2006 s. 117.]

73.Reports by family consultants — FLA s. 62G

(1)This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 years of age is relevant.

(2)A court may direct a family consultant to give the court a report on such matters relevant to proceedings under this Act as the court thinks desirable.

(3)If a court gives a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.

(3a)A family consultant who is directed to give the court a report on a matter under subsection (2) must —

(a)ascertain the views of the child in relation to that matter; and

(b)include the views of the child on that matter in the report.

(3b)Subsection (3a) does not apply if complying with that subsection would be inappropriate because of —

(a)the child’s age or maturity; or

(b)some other special circumstance.

(4)The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.

(5)For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).

(6)If —

(a)a person fails to comply with an order or direction under subsection (5); or

(b)a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5),

the family consultant must report the failure to the court.

(7)On receiving a report under subsection (6), a court may give such further directions in relation to the preparation of the report as it considers appropriate.

(8)A report given to a court in accordance with a direction under subsection (2) may be received in evidence in any proceedings under this Act.

[Section 73 amended by No. 35 of 2006 s. 86 and 118; No. 13 of 2013 s. 25.]

Division 4 — Parenting plans

74.What this Division does — FLA s. 63A

This Division explains what parenting plans are.

[Section 74 amended by No. 35 of 2006 s. 5.]

75.Parents encouraged to reach agreement — FLA s. 63B

The parents of a child are encouraged —

(a)to agree about matters concerning the child; and

(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and

(c)to use the legal system as a last resort rather than a first resort; and

(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and

(e)in reaching their agreement, to regard the best interests of the child as the paramount consideration.

[Section 75 inserted by No. 35 of 2006 s. 6.]

76.Meaning of parenting plan and related terms — FLA s. 63C

(1)A parenting plan is an agreement that — 

(a)is in writing; and

(b)is or was made between the parents of a child; and

(ba)is signed by the parents of the child; and

(bb)is dated; and

(c)deals with a matter or matters mentioned in subsection (2).

(1a)An agreement is not a parenting plan unless it is made free from any threat, duress or coercion.

(2)A parenting plan may deal with one or more of the following —

(a)the person or persons with whom a child is to live;

(b)the time a child is to spend with another person or other persons;

(c)the allocation of parental responsibility for a child;

(d)if 2 or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e)the communication a child is to have with another person or other persons;

(f)maintenance of a child;

(g)the process to be used for resolving disputes about the terms or operation of the plan;

(h)the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;

(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

(2a)The person referred to in subsection (2) may be, or the persons referred to in that subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

(2b)Without limiting subsection (2)(c), the plan may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

(2c)The communication referred to in subsection (2)(e) includes (but is not limited to) communication by —

(a)letter; and

(b)telephone, email or any other electronic means.

(3)An agreement may be a parenting plan — 

(a)whether made before or after the commencement of this section; and

(b)whether made inside or outside Western Australia; and

(c)whether other persons as well as a child’s parents are also parties; and

(d)whether it deals with other matters as well as matters mentioned in subsection (2).

(4)Provisions of a parenting plan that deal with matters other than the maintenance of a child are child welfare provisions.

(5)Provisions of a parenting plan that deal with the matter mentioned in subsection (2)(f) are child maintenance provisions.

(6)A registered parenting plan is a parenting plan —

(a)that was registered in a court under section 79 as in force at any time before the commencement of section 7 of the Family Legislation Amendment Act 2006 1; and

(b)that continued to be registered immediately before that section commenced.

[Section 76 amended by No. 35 of 2006 s. 7, 87 and 146.]

77.Parenting plans may include child support provisions —FLA s. 63CAA

(1)If a parenting plan includes provisions of a kind referred to in section 84(1) of the Child Support (Assessment) Act, the provisions do not have effect for the purposes of this Act.

(2)Subsection (1) does not affect the operation of the provisions for any other purpose.

(3)Nothing in this Division is to be treated as preventing the same agreement being both a parenting plan under this Part and a child support agreement under Part 6 of the Child Support (Assessment) Act.

78.Parenting plan may be varied or revoked by further written agreement — FLA s. 63D

A parenting plan, other than a plan to which section 78B applies, may be varied or revoked by agreement in writing between the parties to the plan.

[Section 78 inserted by No. 35 of 2006 s. 8.]

78A.Obligations of advisers — FLA s. 63DA

(1A)The obligations of an adviser under this section are in addition to the adviser’s obligations under section 66HC.

(1)If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must —

(a)inform them that they could consider entering into a parenting plan in relation to the child; and

(b)inform them about where they can get further assistance to develop a parenting plan and the content of the plan.

(2)If an adviser gives advice to people in connection with the making by those people of a parenting plan in relation to a child, the adviser must —

(a)inform them that, if the child spending equal time with each of them is —

(i)reasonably practicable; and

(ii)in the best interests of the child,

they could consider the option of an arrangement of that kind; and

(b)inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is —

(i)reasonably practicable; and

(ii)in the best interests of the child,

they could consider the option of an arrangement of that kind; and

[(c)deleted]

(d)inform them of the matters that may be dealt with in a parenting plan in accordance with section 76(2); and

(e)inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 85A) include a provision that the order is subject to a parenting plan they enter into; and

(f)inform them about the desirability of including in the plan —

(i)if they are to share parental responsibility for the child under the plan, provisions of the kind referred to in section 76(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and

(ii)provisions of the kind referred to in section 76(2)(g); and

(iii)provisions of the kind referred to in section 76(2)(h);

and

(g)explain to them, in language they are likely to readily understand, the availability of programs to help people who experience difficulties in complying with a parenting plan; and

(h)inform them that section 89AB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so.

(3)For the purposes of subsection (2)(b), a child will be taken to spend substantial and significant time with a parent only if —

(a)the time the child spends with the parent includes both —

(i)days that fall on weekends and holidays; and

(ii)days that do not fall on weekends or holidays;

and

(b)the time the child spends with the parent allows the parent to be involved in —

(i)the child’s daily routine; and

(ii)occasions and events that are of particular significance to the child;

and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant.

(5)In this section —

adviser means a person who is —

(a)a legal practitioner; or

(b)a family counsellor; or

(c)a family dispute resolution practitioner; or

(d)a family consultant.

[Section 78A inserted by No. 35 of 2006 s. 88; amended by No. 13 of 2013 s. 14.]

78B.Registered parenting plans — FLA s. 63DB

(1)This section applies to a registered parenting plan.

(2)A registered parenting plan continues in force until revoked in accordance with section 79, or set aside, varied or discharged as referred to in section 82.

(3)A registered parenting plan cannot be varied.

(4)Subject to subsection (5), a registered parenting plan may be revoked by agreement in writing between the parties to the plan.

(5)An agreement revoking a registered parenting plan —

(a)may, in accordance with the rules, be registered in a court, under section 79; and

(b)does not have effect to revoke the plan until it is so registered.

[Section 78B inserted by No. 35 of 2006 s. 9.]

79.Registration of revocation of registered parenting plan — FLA s. 63E

(1)This section applies to a registered parenting plan (the plan).

(2)To apply for registration of an agreement (the revocation agreement) revoking a registered parenting plan —

(a)an application for registration of the revocation agreement must be lodged in accordance with the rules; and

(b)the application must be accompanied by —

(i)a copy of the revocation agreement; and

(ii)the information required by the rules; and

(iii)a statement, in relation to each party, that is to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement and that is signed by the legal practitioner who provided that advice.

(3)A court may register the revocation agreement if it considers it appropriate to do so having regard to the best interests of the child to whom the agreement relates.

(4)In determining whether it is appropriate to register the revocation agreement, a court —

(a)must have regard to the information accompanying the application for registration; and

(b)may, but is not required to, have regard to all or any of the matters set out in section 66C(2) and (3).

[Section 79 inserted by No. 35 of 2006 s. 10; amended by No. 35 of 2006 s. 89.]

80.Child welfare provisions of registered parenting plans — FLA s. 63F

(1)This section applies to a registered parenting plan that contains child welfare provisions.

(2)A court may, by order, vary the child welfare provisions in the plan if it considers the variation is required in the best interests of a child.

(3)The child welfare provisions have effect, subject to subsections (5) and (6), as if they were provisions of a parenting order.

(4)If provisions of the plan have effect under subsection (3) as a court order, a person who is a party to the plan is to be treated (for example, for the purposes of section 107) as a party to the proceedings in which the order was made.

(5)Subsection (3) does not apply to the plan (whenever registered) to the extent (if at all) that the plan purports to determine that the child concerned is to live with a person who is not a parent of the child.

(6)Even though the plan is registered, a court must not enforce the child welfare provisions if it considers that to do so would be contrary to the best interests of a child.

[Section 80 amended by No. 35 of 2006 s. 11 and 147.]

81.Child maintenance provisions of registered parenting plans — FLA s. 63G

(1)This section applies if a registered parenting plan contains child maintenance provisions.

(2)The child maintenance provisions have effect, subject to subsections (3), (4) and (5), as if they were a child maintenance order made by a court.

(3)Unless the plan provides otherwise, the child maintenance provisions (other than provisions for the periodic payment of maintenance) continue to operate despite the death of a party to the plan and operate in favour of, and are binding on, the legal personal representative of that party.

(4)If the child maintenance provisions include provisions (the periodic provisions) for the periodic payment of maintenance —

(a)the periodic provisions continue to operate, if the plan so provides, despite the death of a party to the plan who is liable to make the periodic payments, and are binding on the legal personal representative of that party; but

(b)the periodic provisions do not continue to operate, despite anything in the plan, after the death of the person entitled to receive the periodic payments.

(5)The child maintenance provisions have no effect, and are not enforceable in any way, at any time when an application could properly be made under the Child Support (Assessment) Act by one of the parties to the plan for administrative assessment of child support (within the meaning of that Act) for the child concerned seeking payment of child support by the other party to the plan.

(6)Subsection (5) has effect whether or not an application for administrative assessment of child support for the child has in fact been made by a party to the plan.

[Section 81 amended by No. 35 of 2006 s. 12.]

82.Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans — FLA s. 63H

(1a)This section applies to a registered parenting plan.

(1)A court may set aside a registered parenting plan (the plan), and its registration, if the court is satisfied — 

(a)that the concurrence of a party was obtained by fraud, duress or undue influence; or

(b)that the parties want the plan set aside; or

(c)that it is in the best interests of a child to set aside the plan.

(2)In proceedings under subsection (1), to the extent that they are proceedings on the ground mentioned in subsection (1)(c), the best interests of the child concerned are the paramount consideration.

(3)Other provisions of this Act under which provisions of the plan may be set aside or otherwise affected are — 

(a)section 80(2), under which a court may vary child welfare provisions in the plan; and

(b)section 89(2), under which a court may make a parenting order that discharges, varies, suspends or revives provisions of the plan that have effect as if they were a parenting order (other than a child maintenance order); and

(c)section 128, under which a court may discharge, suspend, revive or vary provisions of the plan that have effect as if they were a child maintenance order; and

(d)section 176, under which a court may revive, vary, discharge or suspend a registered parenting plan.

(4)Except as permitted by subsection (1) or by a provision mentioned in subsection (3), a court must not set aside, discharge, vary, suspend or revive the whole or a part of the plan.

[Section 82 amended by No. 35 of 2006 s. 13.]

Division 5 — Parenting orders — what they are

83.What this Division does — FLA s. 64A

This Division explains what parenting orders are.

84.Meaning of parenting order and related terms — FLA s. 64B

(1)A parenting order is — 

(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

(1A)However, a declaration or order under Division 11 Subdivision 4 is not a parenting order.

(2)A parenting order may deal with one or more of the following —

(a)the person or persons with whom a child is to live;

(b)the time a child is to spend with another person or other persons;

(c)the allocation of parental responsibility for a child;

(d)if 2 or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e)the communication a child is to have with another person or other persons;

(f)maintenance of a child;

(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of —

(i)a child to whom the order relates; or

(ii)the parties to the proceedings in which the order is made;

(h)the process to be used for resolving disputes about the terms or operation of the order;

(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

(2a)The person referred to in subsection (2) may be, or include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

(3)Without limiting subsection (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

(4)The communication referred to in subsection (2)(e) includes (but is not limited to) communication by —

(a)letter; and

(b)telephone, email or any other electronic means.

(4a)Without limiting subsection (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with —

(a)resolving any dispute about the terms or operation of the order; or

(b)reaching agreement about changes to be made to the order.

(5)To the extent (if at all) that a parenting order deals with the matter mentioned in subsection (2)(f), the order is a child maintenance order.

(6)For the purposes of this Act —

(a)a parenting order that provides that a child is to live with a person is made in favour of that person; and

(b)a parenting order that provides that a child is to spend time with a person is made in favour of that person; and

(c)a parenting order that provides that a child is to have communication with a person is made in favour of that person; and

(d)a parenting order that —

(i)allocates parental responsibility for a child to a person; or

(ii)provides that a person is to share parental responsibility for a child with another person,

is made in favour of that person.

[Section 84 amended by No. 35 of 2006 s. 90; No. 13 of 2013 s. 26.]

85.Parenting orders may be made in favour of parents or other persons — FLA s. 64C

A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

85A.Parenting orders subject to later parenting plans — FLA s. 64D

(1)Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is —

(a)entered into subsequently by the child’s parents; and

(b)agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.

(2)The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).

(3)Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following —

(a)circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

(b)the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.

[Section 85A inserted by No. 35 of 2006 s. 91.]

Division 6 — Parenting orders other than child maintenance orders

Subdivision 1 — Introductory

86.What this Division does — FLA s. 65A

(1)This Division deals with — 

(a)applying for and making parenting orders, other than child maintenance orders (Subdivision 2); and

(b)the general obligations created by parenting orders, other than child maintenance orders (Subdivision 3); and

(c)dealing with people who have been arrested (Subdivision 4); and

(d)the obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Western Australia to places outside Australia (Subdivision 5).

(2)Measures designed to improve communication between separated parents and to educate parents about their respective responsibilities in relation to their children are contained in this Division (see section 89A).

[Section 86 amended by No. 35 of 2006 s. 92.]

86A.Child’s best interests paramount consideration in making a parenting order — FLA s. 65AA

Section 66A provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

[Section 86A inserted by No. 35 of 2006 s. 93.]

87.Division does not apply to child maintenance orders — FLA s. 65B

This Division does not apply to parenting orders to the extent that they consist of child maintenance orders. Child maintenance orders are dealt with in Division 7.

Subdivision 2 — Applying for and making parenting orders

88.Who may apply for a parenting order — FLA s. 65C

A parenting order in relation to a child may be applied for by —

(a)either or both of the child’s parents; or

(b)the child; or

(ba)a grandparent of the child; or

(c)any other person concerned with the care, welfare or development of the child; or

(d)any guardian, whether appointed under this Act or by will or otherwise; or

(e)any person acting in a fiduciary capacity who is, under any will, gift, settlement, or otherwise by law, possessed of any fund for the maintenance or education of the child, or any fund a portion of which may be applied for the maintenance or education of the child.

[Section 88 amended by No. 25 of 2002 s. 55.]

89.Court’s power to make parenting order — FLA s. 65D

(1)In proceedings for a parenting order, a court may, subject to sections 70A and 89AB and this Division, make such parenting order as it thinks proper.

(2)Without limiting the generality of subsection (1) and subject to section 70A and section 89AB and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

(3)If the application for the parenting order was made as a result of the adjournment under section 205O of proceedings under Division 13 Subdivision 5 —

(a)the court must hear and determine the application as soon as practicable; and

(b)if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision.

[Section 89 amended by No. 25 of 2002 s. 7; No. 35 of 2006 s. 94 and 100.]

89AA.Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances — FLA s. 65DAA

(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must —

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

(2)If —

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

(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents,

the court must —

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if —

(a)the time the child spends with the parent includes both —

(i)days that fall on weekends and holidays; and

(ii)days that do not fall on weekends or holidays;

and

(b)the time the child spends with the parent allows the parent to be involved in —

(i)the child’s daily routine; and

(ii)occasions and events that are of particular significance to the child;

and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to —

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

[Section 89AA inserted by No. 35 of 2006 s. 95.]

89AB.Court to have regard to parenting plans — FLA s. 65DAB

When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.

[Section 89AB inserted by No. 35 of 2006 s. 95.]

89AC.Effect of parenting order that provides for shared parental responsibility — FLA s. 65DAC

(1)This section applies if, under a parenting order —

(a)2 or more persons are to share parental responsibility for a child; and

(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

(2)The order is taken to require the decision to be made jointly by those persons.

(3)The order is taken to require each of those persons —

(a)to consult the other person in relation to the decision to be made about that issue; and

(b)to make a genuine effort to come to a joint decision about that issue.

(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

[Section 89AC inserted by No. 35 of 2006 s. 95.]

89AD.No need to consult on issues that are not major long‑term issues — FLA s. 65DAE

(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who —

(a)has parental responsibility for the child; or

(b)shares parental responsibility for the child with another person,

about decisions that are made in relation to the child during that time on issues that are not major long‑term issues.

(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.

[Section 89AD inserted by No. 35 of 2006 s. 95.]

89A.Parenting orders — FLA s. 65DA

(1)This section applies when a court makes a parenting order.

(2)It is the duty of the court to include in the order particulars of —

(a)the obligations that the order creates; and

(b)the consequences that may follow if a person contravenes the order.

(3)If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons —

(a)the availability of programs to help people to understand their responsibilities under parenting orders; and

(b)the availability and use of location and recovery orders to ensure that parenting orders are complied with.

(4)The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in subsection (3)(a) and (b).

(5)If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner —

(a)to assist in explaining to the person the matters mentioned in subsection (2)(a) and (b); and

(b)to explain to the person the matters mentioned in subsection (3)(a) and (b).

(6)If a request is made by the court to a legal practitioner under subsection (5)(a) or (b), it is the duty of the practitioner to comply with the request.

(7)Failure to comply with a requirement of, or with a request made under, this section does not affect the validity of a parenting order.

(8)Any matter that is required by this section to be included in a parenting order or any explanation that is required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given.

[Section 89A inserted by No. 25 of 2002 s. 8.]

[90.Deleted by No. 35 of 2006 s. 96.]

91.General requirements for counselling before parenting order made — FLA s. 65F

[(1)deleted]

(2)Subject to subsection (3), a court must not make a parenting order in relation to a child unless — 

(a)the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or

(b)the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended counselling as mentioned in paragraph (a); or

(c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend counselling as mentioned in paragraph (a).

(3)Subsection (2) does not apply to the making of a parenting order if — 

(a)it is made with the consent of all the parties to the proceedings; or

(b)it is an order until further order.

(4)In this section —

proceedings for a parenting order includes —

(a)proceedings for the enforcement of a parenting order; and

(b)any other proceedings in which a contravention of a parenting order is alleged.

[Section 91 amended by No. 35 of 2006 s. 46 and 119.]

92.Special conditions for making parenting order about whom child lives with or allocation of parental responsibility by consent in favour of non-parent — FLA s. 65G

(1)This section applies if —

(a)a court proposes to make a parenting order that deals with whom a child is to live with; and

(b)under the order, the child would not live with a parent, grandparent or other relative of the child; and

(c)the court proposes to make that order with the consent of all the parties to the proceedings.

(1a)This section also applies if —

(a)a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and

(b)under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and

(c)the court proposes to make that order with the consent of all the parties to the proceedings.

(2)A court must not make the proposed order unless — 

(a)the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or

(b)the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though paragraph (a) has not been complied with.

[Section 92 amended by No. 35 of 2006 s. 97 and 148.]

93.Children who are 18 or over or who have married or entered de facto relationships — FLA s. 65H

(1)A parenting order must not be made in relation to a child who — 

(a)is 18 or more years of age; or

(b)is or has been married; or

(c)is in a de facto relationship.

(2)A parenting order in relation to a child stops being in force if the child turns 18, marries or enters into a de facto relationship.

(3)A court may make a declaration to the effect that the child is in, or has entered into, a de facto relationship.

(4)A declaration under subsection (3) has effect for the purposes of this Act but does not have effect for any other purpose.

94.What happens when parenting order that deals with whom child lives with does not make provision in relation to death of parent with whom child lives — FLA s. 65K

(1)This section applies if — 

(a)a parenting order is in force that provides that a child is to live with one of the child’s parents; and

(b)that parent dies; and

(c)the parenting order does not provide for what is to happen on that parent’s death.

(2)The surviving parent cannot require the child to live with him or her.

(3)The surviving parent, or another person (subject to section 88), may apply for a parenting order that deals with the person or persons with whom the child is to live.

(4)In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.

[Section 94 amended by No. 35 of 2006 s. 149.]

95.Family consultants may be required to supervise or assist compliance with parenting orders — FLA s. 65L

(1)If a court makes a parenting order in relation to a child, the court may also, subject to subsection (2), make either or both of the following orders — 

(a)an order requiring compliance with the parenting order, as far as practicable, to be supervised by a family consultant;

(b)an order requiring a family consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order.

(2)In deciding whether to make a particular order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

[Section 95 amended by No. 35 of 2006 s. 120.]

95A.Court may order attendance at post‑separation parenting program — FLA s. 65LA

(1)In proceedings for a parenting order, the court may make an order directing a party to the proceedings to attend a post‑separation parenting program.

(2)In deciding whether to make a particular order under subsection (1), a court must regard the best interests of the child as the paramount consideration.

(3)In this section —

proceedings for a parenting order includes —

(a)proceedings for the enforcement of a parenting order; and

(b)any other proceedings in which a contravention of a parenting order is alleged.

[Section 95A inserted by No. 35 of 2006 s. 22; amended by No. 35 of 2006 s. 121.]

95B.Conditions for providers of post‑separation parenting programs — FLA s. 65LB

(1)An organisation meets the conditions in this section if —

(a)it is a recipient organisation (see subsection (2)); or

(b)there is a recipient organisation in relation to the organisation (see subsection (3)).

(2)An organisation is a recipient organisation for the purposes of subsection (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated under section 65LB(4) of the Family Law Act in order to provide services that include post‑separation parenting programs.

(3)An organisation is a recipient organisation in relation to another organisation for the purposes of subsection (1)(b) if —

(a)both —

(i)the other organisation is a member of the organisation; and

(ii)the organisation receives, or has been approved to receive, funding under a program or a part of a program designated under section 65LB(4) of the Family Law Act in order that the organisation’s members may provide services that include post‑separation parenting programs;

or

(b)both —

(i)the organisation acts on behalf of a group of organisations that includes the other organisation; and

(ii)the organisation receives, or has been approved to receive, funding under a program or a part of a program designated under section 65LB(4) of the Family Law Act in order that the organisations on whose behalf it acts may provide services that include post‑separation parenting programs.

[Section 95B inserted by No. 35 of 2006 s. 122.]

Subdivision 3 — General obligations created by certain parenting orders

[Heading inserted by No. 35 of 2006 s. 150.]

96.General obligations created by parenting order that deals with whom child lives with — FLA s. 65M

(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with.

(2)A person must not, contrary to the order — 

(a)remove the child from the care of a person; or

(b)refuse or fail to deliver or return the child to a person; or

(c)interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.

[Section 96 amended by No. 35 of 2006 s. 151.]

97.General obligations created by parenting order that deals with whom child spends time with — FLA s. 65N

(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

(2)A person must not —

(a)hinder or prevent a person and the child from spending time together in accordance with the order; or

(b)interfere with a person and the child benefiting from spending time with each other under the order.

[Section 97 inserted by No. 35 of 2006 s. 152.]

98.General obligations created by parenting order that deals with whom child communicates with — FLA s. 65NA

(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.

(2)A person must not —

(a)hinder or prevent a person and the child from communicating with each other in accordance with the order; or

(b)interfere with the communication that a person and the child are supposed to have with each other under the order.

[Section 98 inserted by No. 35 of 2006 s. 152.]

98A.General obligations created by parenting order that allocates parental responsibility — FLA s. 65P

(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order allocates parental responsibility for the child to a person (the carer).

(2)A person must not hinder the carer in, or prevent the carer from, discharging that responsibility.

[Section 98A inserted by No. 35 of 2006 s. 152.]

99.Court may issue warrant for arrest of alleged offender — FLA s. 65Q

(1)This section applies if — 

(a)a parenting order provides that —

(i)a child is to live with a person; or

(ii)a child is to spend time with a person; or

(iii)a child is to communicate with a person;

and

(b)a court is satisfied, on application by the person referred to in subsection (1)(a), that there are reasonable grounds for believing that a person (the alleged offender) has contravened section 96, 97 or 98 in relation to the order; and

(c)there is an application before the court for the alleged offender to be dealt with under Division 13 for the alleged contravention; and

(d)the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Division 13 for the alleged contravention.

(2)A court referred to in subsection (1) may issue a warrant authorising a person to whom it is addressed to arrest the alleged offender.

(3)A warrant stops being in force — 

(a)if a date not later than 6 months after the issue of the warrant is specified in the warrant as the date when it stops being in force, on that date; or

(b)otherwise, 6 months after the issue of the warrant.

[Section 99 amended by No. 25 of 2002 s. 9; No. 35 of 2006 s. 153.]

Subdivision 4 — Dealing with people who have been arrested

100.Situation to which Subdivision applies — FLA s. 65R

This Subdivision applies if a person — 

(a)is arrested under a warrant issued under section 99(2); or

(b)is arrested without warrant under a recovery order.

[Section 100 amended by No. 35 of 2006 s. 173.]

101.Arrested person to be brought before court — FLA s. 65S

(1)The arresting person must — 

(a)ensure that the alleged offender is brought before a court before the end of the holding period applicable under subsection (4); and

(b)take all reasonable steps to ensure that, before the alleged offender is brought before a court, the person who applied for the warrant or recovery order is aware — 

(i)that the alleged offender has been arrested; and

(ii)of the court before which the alleged offender is to be brought.

(2)The alleged offender must not be released before the end of the holding period except under an order of a court.

(3)This section does not authorise the holding in custody of the alleged offender after the end of the holding period.

(4)In this section — 

holding period, in relation to the arrest of an alleged offender, is — 

(a)if a Saturday, Sunday or public holiday starts within 24 hours after the arrest of the alleged offender, the longer of the following periods — 

(i)the period starting with the arrest and ending 48 hours later;

(ii)the period starting with the arrest and ending at the end of the next day after the day of the arrest that is not a Saturday, Sunday or public holiday;

or

(b)in any other case, the period starting with the arrest and ending 24 hours later.

102.Obligation of court where application before it to deal with contravention — FLA s. 65T

(1)This section applies if — 

(a)the alleged offender is brought before a court under section 101; and

(b)there is an application before the court for the alleged offender to be dealt with under Division 13 for the alleged contravention.

(2)The court referred to in subsection (1) must, without delay, proceed to hear and determine the application.

[Section 102 amended by No. 35 of 2006 s. 23.]

103.Obligation of court where no application before it, but application before another court, to deal with contravention — FLA s. 65U

(1)This section applies if — 

(a)the alleged offender is brought before a court under section 101 (the court); and

(b)there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13 for the alleged contravention; and

(c)the court is aware that there is an application before another court (the other court) for the alleged offender to be dealt with under Division 13 for the alleged contravention.

(2)The court must, without delay — 

(a)order that the alleged offender is to be released from custody upon the alleged offender entering into a bond (with or without surety or security) that the alleged offender will attend before the other court on a date, at a time and at a place specified by the court; or

(b)order the arresting person to arrange for the alleged offender to be brought before the other court on such date and at such time as the court specifies, being a date and time such that the alleged offender is to be brought before the other court as soon as practicable, and in any event not more than 72 hours, after the order is made.

(3)If a court makes an order under subsection (2)(b) for the alleged offender to be brought before another court — 

(a)subject to paragraph (c), the alleged offender may be kept in custody until the alleged offender is brought before the other court; and

(b)if the alleged offender is brought before the other court as required by the order, the other court must, without delay, proceed to hear and determine the application mentioned in subsection (1)(c); and

(c)if the alleged offender is not brought before the other court as required by the order, the alleged offender must be released without delay.

[Section 103 amended by No. 25 of 2002 s. 10 and 74(1).]

104.Obligation of court where no application before any court to deal with contravention — FLA s. 65V

(1)This section applies if — 

(a)the alleged offender is brought before a court under section 101 (the court); and

(b)there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13 for the alleged contravention; and

(c)so far as the court is aware, there is no application, or no longer any application, before any other court for the alleged offender to be dealt with under Division 13 for the alleged contravention.

(2)The court must, without delay, order the release of the alleged offender.

[Section 104 amended by No. 25 of 2002 s. 11.]

105.Applications heard as required by section 102(2) or section 103(3)(b) — FLA s. 65W

(1)If a court hearing an application as required by section 102(2) or section 103(3)(b) adjourns the hearing, the court must — 

(a)order the alleged offender to be kept in such custody as the court considers appropriate during the adjournment; or

(b)order that the alleged offender is to be released from custody, either upon the alleged offender entering into a bond (with or without surety or security) that the alleged offender will attend before the court on the resumption of the hearing or otherwise.

(2)This section does not authorise the holding in custody of the alleged offender during an adjournment of proceedings that — 

(a)is expressed to be for a period of more than 24 hours; or

(b)continues for more than 24 hours.

[Section 105 amended by No. 25 of 2002 s. 74(1).]

Subdivision 5 — Obligations under parenting orders relating to taking or sending children from Western Australia to places outside Australia

106.Term used: parenting order to which this Subdivision applies — FLA s. 65X

(1)In this Subdivision —

parenting order to which this Subdivision applies means a parenting order to the extent to which it provides, or would provide, that —

(a)a child is to live with a person; or

(b)a child is to spend time with a person; or

(c)a child is to communicate with a person; or

(d)a person is to have parental responsibility for a child.

(2)For the purposes of this Subdivision, if an appeal against a decision of a court in proceedings has been instituted and is pending, the proceedings are to be treated as pending and sections 108 and 110 (rather than sections 107 and 109) apply.

[Section 106 amended by No. 35 of 2006 s. 154.]

107.Obligations if certain parenting orders have been made — FLA s. 65Y

(1)Subject to subsection (2), if a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not, intentionally or recklessly, take or send, or attempt to take or send, the child concerned from the State to a place outside Australia.

Penalty: Imprisonment for 3 years.

(2)A person does not commit an offence under subsection (1) if the person takes or sends, or attempts to take or send, a child from the State to a place outside Australia — 

(a)with the consent (evidenced by statutory declaration) of each person in whose favour the order referred to in subsection (1) was made; or

(b)in accordance with an order — 

(i)of any court (whether of a kind referred to in section 8(a) or (b) or otherwise) under any written law; or

(ii)under a law of the Commonwealth or any other State or a Territory, of a court of the Commonwealth or that State or Territory,

made at the same time, or after, the order referred to in subsection (1) was made.

[Section 107 amended by No. 35 of 2006 s. 155.]

108.Obligations if proceedings for the making of certain parenting orders are pending — FLA s. 65Z

(1)Subject to subsection (2), if proceedings for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not, intentionally or recklessly, take or send, or attempt to take or send, the child concerned from the State to a place outside Australia.

Penalty: Imprisonment for 3 years.

(2)A person does not commit an offence under subsection (1) if the person takes or sends, or attempts to take or send, a child from the State to a place outside Australia — 

(a)with the consent (evidenced by statutory declaration) of each other party to the proceedings referred to in subsection (1); or

(b)in accordance with an order — 

(i)of any court (whether of a kind referred to in section 8(a) or (b) or otherwise) under any written law; or

(ii)under a law of the Commonwealth or any other State or a Territory, of a court of the Commonwealth or that State or Territory,

made after the proceedings referred to in subsection (1) were instituted.

[Section 108 amended by No. 35 of 2006 s. 156.]

109.Obligations of owners etc. of aircraft and vessels if certain parenting orders made — FLA s. 65ZA

(1)This section applies if — 

(a)a parenting order to which this Subdivision applies is in force; and

(b)a person in whose favour an order referred to in paragraph (a) was made has served on the captain, owner or charterer of an aircraft or vessel a statutory declaration made by the person not earlier than 7 days before the date of service that — 

(i)relates to the order; and

(ii)complies with subsection (4).

(2)Subject to subsection (3), a person on whom a statutory declaration referred to in subsection (1)(b) is served must not, intentionally or recklessly and without reasonable excuse, permit a child identified in the statutory declaration to leave a port or place in the State in the aircraft or vessel for a destination outside Australia.

Penalty: $6 600.

(3)A person does not commit an offence under subsection (2) if the child leaves the State, in the aircraft or vessel — 

(a)in the company, or with the consent (evidenced by statutory declaration), of the person who made the statutory declaration referred to in subsection (1)(b); or

(b)in accordance with an order — 

(i)of any court (whether of a kind referred to in section 8(a) or (b) or otherwise) under any written law; or

(ii)under a law of the Commonwealth or any other State or a Territory, of a court of the Commonwealth or that State or Territory,

made at the same time, or after, the order referred to in subsection (1)(a) was made.

(4)A statutory declaration referred to in subsection (1)(b) must contain — 

(a)full particulars of the relevant order referred to in subsection (1)(a), including — 

(i)the full name and the date of birth of the child to whom the order relates; and

(ii)the full names of the parties to the proceedings in which the order was made; and

(iii)the terms of the order;

and

(b)such other matters (if any) as are prescribed.

[Section 109 amended by No. 25 of 2002 s. 75; No. 35 of 2006 s. 157.]

110.Obligations of owners etc. of aircraft and vessels if proceedings for making of certain parenting orders are pending — FLA s. 65ZB

(1)This section applies if — 

(a)proceedings for the making of a parenting order to which this Subdivision applies are pending; and

(b)a party to the proceedings referred to in paragraph (a) has served on the captain, owner or charterer of a vessel a statutory declaration made by the party not earlier than 7 days before the date of service that — 

(i)relates to the proceedings; and

(ii)complies with subsection (4).

(2)Subject to subsection (3), a person on whom a statutory declaration referred to in subsection (1)(b) is served must not, intentionally or recklessly and without reasonable excuse, permit a child identified in the statutory declaration to leave a port or place in the State in the aircraft or vessel for a destination outside Australia.

Penalty: $6 600.

(3)A person does not commit an offence under subsection (2) if the child leaves the State, in the aircraft or vessel — 

(a)in the company, or with the consent (evidenced by statutory declaration), of the person who made the statutory declaration referred to in subsection (1)(b); or

(b)in accordance with an order — 

(i)of any court (whether of a kind referred to in section 8(a) or (b) or otherwise) under any written law; or

(ii)under a law of the Commonwealth or any other State or a Territory, of a court of the Commonwealth or that State or Territory,

made after the proceedings referred to in subsection (1)(a) were instituted.

(4)A statutory declaration referred to in subsection (1)(b) must contain — 

(a)full particulars of the relevant proceedings referred to in subsection (1)(a), including — 

(i)the full name and the date of birth of the child to whom the proceedings relate; and

(ii)the full names of the parties to the proceedings; and

(iii)the name of the court, the nature of the proceedings and the date of institution of the proceedings; and

(iv)if an appeal has been instituted in the proceedings, the name of the court in which the appeal was instituted and the date on which it was instituted;

and

(b)a statement that the proceedings referred to in subsection (1)(a) are pending at the date of the statutory declaration; and

(c)such other matters (if any) as are prescribed.

[Section 110 amended by No. 25 of 2002 s. 75; No. 35 of 2006 s. 158.]

111.General provisions applicable to sections 109 and 110 — FLA s. 65ZC(1) and (2)

(1)A statutory declaration referred to in section 109(1)(b) or 110(1)(b) may be served on the owner or charterer of an aircraft or vessel, or on the agent of the owner of an aircraft or vessel, by sending the statutory declaration by registered post addressed to the owner, charterer or agent at the principal place of business of the owner, charterer or agent.

(2)The captain, owner or charterer of an aircraft or vessel, or the agent of the owner of an aircraft or vessel, is not liable in any civil or criminal proceedings in respect of anything done in good faith for the purpose of complying with section 109 or 110.

112.No double jeopardy — FLA s. 65ZC(3)

If an act or omission by a person that constitutes an offence under this Subdivision is also an offence against any other written law, the person may be prosecuted for, and convicted of, the offence under the other written law but nothing in this section renders a person liable to be punished twice in respect of the same act or omission.

Division 7 — Child maintenance orders

Subdivision 1 — What this Division does

113.What this Division does — FLA s. 66A

This Division — 

(a)contains statements of objects and principles relevant to the making of child maintenance orders (Subdivision 2); and

(b)deals with the relationship between this Division and the Child Support (Assessment) Act (Subdivision 3); and

(c)deals with applying for and making child maintenance orders (Subdivision 4); and

(d)deals with other aspects of courts’ powers in relation to child maintenance orders (Subdivision 5); and

(da)deals with varying the maintenance of certain children (Subdivision 5A); and

(e)deals with when child maintenance orders stop being in force (Subdivision 6); and

(f)deals with the recovery of amounts paid under maintenance orders (Subdivision 7).

[Section 113 amended by No. 25 of 2002 s. 56; No. 13 of 2013 s. 27.]

Subdivision 2 — Objects and principles

114.Objects — FLA s. 66B

(1)The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

(2)Particular objects of this Division include ensuring — 

(a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

(b)that parents share equitably in the support of their children.

115.Principles: parents have primary duty to maintain — FLA s. 66C

(1)The parents of a child have, subject to this Division, the primary duty to maintain the child.

(2)Without limiting the generality of subsection (1), the duty of a parent to maintain a child — 

(a)is not of lower priority than the duty of the parent to maintain any other child or another person; and

(b)has priority over all commitments of the parent other than commitments necessary to enable the parent to support — 

(i)himself or herself; or

(ii)any other child or another person that the parent has a duty to maintain;

and

(c)is not affected by — 

(i)the duty of any other person to maintain the child; or

(ii)any entitlement of the child or another person to an income tested pension, allowance or benefit.

116.Principles: when step‑parents have duty to maintain — FLA s. 66D

(1)The step‑parent of a child has, subject to this Division, the duty of maintaining the child if, and only if, a court, by order under section 124, determines that it is proper for the step‑parent to have that duty.

(2)Any duty of a step‑parent to maintain a step‑child — 

(a)is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and

(b)does not derogate from the primary duty of the parents to maintain the child.

Subdivision 3 — Relationship with Child Support (Assessment) Act

117.Child maintenance order not to be made etc. if application for administrative assessment of child support could be made — FLA s. 66E

(1)A court must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, under the Child Support (Assessment) Act for administrative assessment of child support (within the meaning of that Act) — 

(a)by the applicant seeking payment of child support for the child from the respondent; or

(b)by the respondent seeking payment of child support for the child from the applicant.

(2)Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

Subdivision 4 — Applying for and making child maintenance orders

118.Who may apply for child maintenance order — FLA s. 66F

(1)Unless subsection (2) applies, a child maintenance order in relation to a child may be applied for by — 

(a)either or both of the child’s parents; or

(b)the child; or

(ba)a grandparent of the child; or

(c)any other person concerned with the care, welfare or development of the child.

(2)A child maintenance order in relation to a child who is under the control or in the care (however described), of a person under a child welfare law may only be applied for by — 

(a)the child; or

(b)a parent of the child who has the daily care of the child; or

(c)a relative of the child who has the daily care of the child; or

(d)a person who, under a child welfare law, has responsibility for the control or care (however described) of the child.

[Section 118 amended by No. 25 of 2002 s. 57.]

119.Court’s power to make child maintenance order — FLA s. 66G

In proceedings for a child maintenance order, a court may, subject to this Division, make such child maintenance order as it thinks proper.

120.Approach to be taken in proceedings for child maintenance order — FLA s. 66H

In proceedings for the making of a child maintenance order in relation to a child, a court must — 

(a)consider the financial support necessary for the maintenance of the child (this is expanded on in section 121); and

(b)determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 122).

121.Matters to be taken into account in considering financial support necessary for maintenance of child — FLA s. 66J

(1)In considering the financial support necessary for the maintenance of a child, a court must take into account these (and no other) matters — 

(a)the matters mentioned in section 114; and

(b)the proper needs of the child (this is expanded on in subsection (2)); and

(c)the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).

(2)In taking into account the proper needs of the child a court — 

(a)must have regard to — 

(i)the age of the child; and

(ii)the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

(iii)any special needs of the child;

and

(b)may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

(3)In taking into account the income, earning capacity, property and financial resources of the child, a court must — 

(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

(b)disregard — 

(i)the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

(ii)any entitlement of the child or any other person to an income tested pension, allowance or benefit.

(4)Subsections (2) and (3) do not limit, by implication, the matters to which a court may have regard in taking into account the matters referred to in subsection (1).

122.Matters to be taken into account in determining contribution that should be made by party etc. — FLA s. 66K

(1)In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, a court must take into account these (and no other) matters — 

(a)the matters mentioned in sections 114, 115 and 116; and

(b)the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

(c)the commitments of the party, or each of those parties, that are necessary to enable the party to support — 

(i)himself or herself; or

(ii)any other child or another person that the person has a duty to maintain;

and

(d)the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

(2)In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, a court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

(3)In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, a court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

(4)In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, a court must disregard — 

(a)any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

(b)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

(5)In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, a court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance — 

(a)by way of lump sum payment; or

(b)by way of transfer or settlement of property; or

(c)in any other way.

(6)Subsections (2) to (5) do not limit, by implication, the matters to which a court may have regard in taking into account the matters referred to in subsection (1).

123.Children who are 18 or over — FLA s. 66L

(1)A court must not make a child maintenance order in relation to a child who is 18 or more years of age unless the court is satisfied that the provision of the maintenance is necessary — 

(a)to enable the child to complete the child’s education; or

(b)because of a mental or physical disability of the child.

(1a)The court may make a child maintenance order referred to in subsection (1), in relation to a child who is 17 years of age, to take effect when or after the child attains the age of 18 years.

(2)A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 years of age unless the court is satisfied that the provision of the maintenance beyond that day is necessary — 

(a)to enable the child to complete the child’s education; or

(b)because of a mental or physical disability of the child.

(3)A child maintenance order in relation to a child stops being in force when the child turns 18 years of age unless the order is expressed to continue in force after then.

[Section 123 amended by No. 25 of 2002 s. 58.]

124.When step‑parents have duty to maintain — FLA s. 66M

(1)As stated in section 116, the step‑parent of a child has a duty of maintaining the child if, and only if, there is an order in force under this section.

(2)A court may, by order, determine that it is proper for a step‑parent to have a duty of maintaining a step­child.

(3)In making an order under subsection (2), a court must have regard to these (and no other) matters — 

(a)the matters referred to in sections 114 and 115; and

(b)the length and circumstances of the step‑parent’s marriage to, or de facto relationship with, the relevant parent of the child; and

(c)the relationship that has existed between the step‑parent and the child; and

(d)the arrangements that have existed for the maintenance of the child; and

(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

[Section 124 amended by No. 25 of 2002 s. 45.]

125.Determining financial contribution of step‑parent — FLA s. 66N

In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step‑parent of the child, a court must take into account — 

(a)the matters referred to in sections 114, 115, 116 and 122; and

(b)the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.

Subdivision 5 — Other aspects of court powers

126.General powers of court — FLA s. 66P

(1)In proceedings for a child maintenance order, a court may do all or any of the following — 

(a)order payment of a lump sum, whether in one amount or by instalments;

(b)order payment of a weekly, monthly, yearly or other periodic amount;

(c)order that a specified transfer or settlement of property be made by way of maintenance for a child;

(d)order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

(e)order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(f)order that payment be made to a specified person or public authority or into court;

(g)make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;

(h)make an order imposing terms and conditions;

(i)make an order by consent;

(j)make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (i)) that it considers appropriate;

(k)make an order under this Division at any time.

(2)The making of an order of a kind referred to in subsection (1)(c), or of any other order under this Division, in relation to the maintenance of a child does not prevent a court from making a subsequent order in relation to the maintenance of the child.

(3)The rules may make provision with respect to the making of orders under this Division (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

127.Urgent child maintenance orders — FLA s. 66Q

If, in proceedings for a child maintenance order in relation to a child — 

(a)a court considers that the child is in immediate need of financial assistance; but

(b)it is not practicable in the circumstances to determine immediately what order (if any) should be made,

the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate.

128.Modification of child maintenance orders — FLA s. 66S

(1)This section applies if — 

(a)there is in force an order (the first order), for the maintenance of a child (whether or not made under this Act) — 

(i)made by a court; or

(ii)made by a court other than a court exercising jurisdiction under this Act and registered in a court under this Act;

and

(b)a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to a court for an order under this section in relation to the first order.

(1a)With the consent of all the parties to the first order, a court may make an order —

(a)discharging the first order; or

(b)suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

(c)if the operation of the order has been suspended under paragraph (b) or subsection (2)(b), reviving its operation wholly or in part; or

(d)varying the order —

(i)so as to increase or decrease any amount ordered to be paid by the order; or

(ii)in any other way.

(1b)However, a court must not make an order under subsection (1a) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child’s parents to maintain the child.

(2)In any other case, a court may, by order — 

(a)discharge the first order if there is just cause for so doing; or

(b)suspend the first order’s operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

(c)if the operation of the first order has been suspended under paragraph (b) or subsection (1a)(b), revive the first order’s operation wholly or in part; or

(d)subject to subsection (3), vary the first order — 

(i)so as to increase or decrease any amount ordered to be paid by the first order; or

(ii)in any other way.

(3)A court must not vary the first order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied — 

(a)that, since the first order was made or last varied — 

(i)the circumstances of the child have changed so as to justify the variation; or

(ii)the circumstances of the person liable to make payments under the first order have changed so as to justify the variation; or

(iii)the circumstances of the person entitled to receive payments under the first order have changed so as to justify the variation; or

(iv)in the case of a first order that operates in favour of, or is binding on, a legal personal representative, the circumstances of the estate are such as to justify the variation;

or

(b)that, since the first order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or

(c)if the first order was made by consent, that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or

(d)that material facts were withheld from the court that made the first order or from a court that varied the order, or material evidence previously given before such a court was false.

(4)In satisfying itself for the purposes of subsection (3)(b), a court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

(5)A court must not, in considering the variation of a first order, have regard to a change in the cost of living unless at least 12 months have elapsed since the first order was made or last varied having regard to a change in the cost of living.

(6)In satisfying itself for the purposes of subsection (3)(c), a court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the first order was made.

(7)An order decreasing a periodic amount payable under the first order, or discharging the first order, may be expressed to be retrospective to such day as a court considers appropriate.

(8)If an order (the subsequent order) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court.

(9)If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court.

(10)For the purposes of this section, a court must have regard to the provisions of Subdivisions 2, 3 and 4 (to the extent applicable).

(11)The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.

[Section 128 amended by No. 25 of 2002 s. 59.]

Subdivision 5A — Varying the maintenance of certain children

[Heading inserted by No. 25 of 2002 s. 60.]

128A.Varying maintenance of certain children — FLA s. 66SA

(1)This section applies to persons who —

(a)are parties to an agreement (the original agreement) dealing with the maintenance of a child; or

(b)are entitled to receive, or required to pay, maintenance in respect of a child under a court order,

and cannot properly make an application under the Child Support (Assessment) Act for administrative assessment of child support (within the meaning of that Act) for the child seeking payment of child support by the other person.

(2)The persons may, by registering a written agreement in a court, vary or revoke the original agreement or order to the extent that it deals with maintenance of the child.

(3)However, the registered agreement is of no effect to the extent that it allows any entitlement of a child or another person to an income tested pension, allowance or benefit to affect the duty of that child’s parents to maintain the child.

(4)If the original agreement or order is varied under subsection (2), it —

(a)continues to operate despite the death of a party to the agreement or of a person entitled to receive, or required to pay, maintenance under the order; and

(b)operates in favour of, and is binding on, the legal representative of that party or person,

unless the agreement or order provides otherwise.

(5)However, despite anything in the agreement or order, it does not continue to operate, to the extent that it requires the periodic payment of maintenance, after the death of the person entitled to receive those payments.

(6)This section applies despite anything in Division 4.

[Section 128A inserted by No. 25 of 2002 s. 60.]

Subdivision 6 — When child maintenance orders stop being in force

129.Effect of child turning 18 — FLA s. 66T

As stated in section 123(3), a child maintenance order in relation to a child stops being in force when the child turns 18 years of age, unless the order is expressed to continue in force after then.

130.Effect of death of child, person liable to pay or person entitled to receive — FLA s. 66U

(1)A child maintenance order in relation to a child stops being in force on the death of the child.

(2)A child maintenance order in relation to a child stops being in force on the death of the person liable to make payments under the order.

(3)A child maintenance order in relation to a child stops being in force on the death of the person entitled to receive payments under the order.

(4)Subsection (3) does not apply to an order if — 

(a)the order is expressed to continue in force after the death of the person first entitled to receive payments under the order; and

(b)the order specifies the person who is to receive the payments after that death.

131.Effect of adoption, marriage or entering into de facto relationship — FLA s. 66V

(1)A child maintenance order in relation to a child stops being in force if the child is adopted, marries or enters into a de facto relationship.

(2)If a child to whom a child maintenance order applies dies, is adopted, marries or enters into a de facto relationship, the person entitled to receive payments under the order must, without delay, inform the person liable to make payments under the order.

(3)Any amounts paid under a child maintenance order in relation to a period after the child dies, is adopted, marries or enters into a de facto relationship may be recovered in a court.

(4)A court may make a declaration to the effect that a child is in, or has entered into, a de facto relationship.

(5)A declaration under subsection (4) has effect for the purposes of this Act but does not have effect for any other purpose.

131A.Children who are 18 or over: change of circumstances — FLA s. 66VA

(1)A child maintenance order made under section 123 —

(a)to enable the child to complete the child’s education; or

(b)because of a mental or physical disability of the child,

stops being in force if the child ceases that education or ceases to have that disability.

(2)The person to whom the maintenance is payable must, as soon as practicable, inform the person required to pay it of that change in circumstances.

(3)Any amounts of maintenance paid under the child maintenance order after it stops being in force may be recovered in a court.

[Section 131A inserted by No. 25 of 2002 s. 61(1).]

132.Recovery of arrears — FLA s. 66W

(1)Nothing in section 123(3), or in this Subdivision (apart from subsection (2)), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force.

(2)If arrears are due under such an order when the order ceases to be in force, the court may, by order, retrospectively —

(a)discharge the order if there is just cause for doing so; or

(b)vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that —

(i)the circumstances of the person liable to pay the arrears are such as to justify the variation; or

(ii)the circumstances of the person entitled to receive the arrears are such as to justify the variation; or

(iii)in the case of an order that operated in favour of, or that was binding on, a legal personal representative, the circumstances of the estate are such as to justify the variation.

[Section 132 inserted by No. 25 of 2002 s. 62(1).]

Subdivision 7 — Recovery of amounts paid under maintenance orders

[Heading inserted by No. 35 of 2006 s. 62.]

132A.Recovery of amounts paid, and property transferred or settled, under maintenance orders — FLA s. 66X

(1)This section applies if —

(a)a court has at any time purported to make an order (the purported order) of a kind referred to in section 126(1)(a), (b) or (c) requiring a person (the maintenance provider) to pay an amount, or to transfer or settle property, by way of maintenance for a child; and

(b)the maintenance provider has —

(i)paid another person an amount or amounts; or

(ii)transferred or settled property,

in compliance, or partial compliance, with the purported order; and

(c)a court has determined that the maintenance provider is not a parent or step‑parent of the child.

(2)If the maintenance provider applies to a court for an order under this subsection, the court must make such order as it considers just and equitable in the circumstances, for —

(a)if the purported order was of a kind referred to in section 126(1)(a) or (b), the repayment to the maintenance provider, by the person to whom the amount or amounts referred to in subsection (1)(b)(i) were paid, of an amount up to, or equal to, that amount or the sum of those amounts; or

(b)if the purported order was of the kind referred to in section 126(1)(c), the return to the maintenance provider of —

(i)the property referred to in subsection (1)(b)(ii); or

(ii)an amount up to, or equal to, the value of that property.

(2a)A court may only order the repayment of an amount that is less than the amount, or the sum of the amounts, referred to in subsection (1)(b)(i), or the return of an amount that is less than the value of the property referred to in subsection (1)(b)(ii), in exceptional circumstances.

(3)If the purported order was of the kind referred to in section 126(1)(c) and the court that made the order did so —

(a)in part by way of providing maintenance for the child; and

(b)in part for some other purpose,

the reference in subsection (2)(b) to the property, or the value of the property, referred to in subsection (1)(b)(ii) is taken to be a reference to that property, or the value of that property, only to the extent to which that property was transferred or settled by way of providing maintenance for the child.

(4)Without limiting subsection (2)(b), the orders that a court may make under that paragraph include the following —

(a)an order that a specified payment be made;

(b)an order that a specified transfer or settlement of property be made;

(c)an order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order.

(5)An amount paid to the Commonwealth under the Child Support (Registration and Collection) Act section 30 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.

[Section 132A inserted by No. 35 of 2006 s. 62.]

Division 8 — Other matters relating to children

Subdivision 1 — What this Division does

133.What this Division does — FLA s. 67A

This Division deals with — 

(a)the liability of a father, or a person who is the parent of a child under section 6A of the Artificial Conception Act 1985, to contribute towards child bearing expenses if he is not married to the child’s mother (Subdivision 2); and

(b)orders for the location and recovery of children (Subdivision 3); and

(c)the reporting of allegations of child abuse and family violence (Subdivision 4); and

(d)other orders about children (Subdivision 5).

[Section 133 amended by No. 3 of 2002 s. 62; No. 13 of 2013 s. 15.]

Subdivision 2 — Liability of parent not married to child’s mother to contribute towards child bearing expenses

[Heading amended by No. 3 of 2002 s. 63.]

[134.Deleted by No. 35 of 2006 s. 174.]

135.Father liable to contribute towards maintenance and expenses of mother — FLA s. 67B

The father of a child who is not married to the child’s mother, or a person who is the parent of the child under section 6A of the Artificial Conception Act 1985, is, subject to this Division, liable to make a proper contribution towards — 

(a)the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and

(b)the mother’s reasonable medical expenses in relation to the pregnancy and birth; and

(c)if the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother’s funeral; and

(d)if the child is stillborn, or dies and the death is related to the birth, the reasonable expenses of the child’s funeral.

[Section 135 amended by No. 3 of 2002 s. 64.]

136.Matters to be taken into account in proceedings under Subdivision — FLA s. 67C

(1)In proceedings under this Subdivision in relation to the birth of a child, a court must, in determining the contribution that should be made by the father of the child, or the person who is the parent of the child under section 6A of the Artificial Conception Act 1985, take into account the following matters only — 

(a)the income, earning capacity, property and financial resources of the mother and —

(i)the father of the child; or

(ii)the person who is the parent of the child under section 6A of the Artificial Conception Act 1985;

(b)commitments of each of those persons that are necessary to enable the person to support — 

(i)himself or herself; or

(ii)any other child or another person that the person has a duty to maintain;

(c)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

(2)In taking into account the income, earning capacity, property and financial resources of a person, a court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of, the person that do not produce, but are capable of producing, income.

(3)In taking into account the income, earning capacity, property and financial resources of the mother, a court must disregard any entitlement of the mother to an income tested pension, allowance or benefit.

(4)Subsections (2) and (3) do not limit the matters to which a court may have regard in taking into account matters referred to in subsection (1).

[Section 136 amended by No. 3 of 2002 s. 65.]

137.Powers of court in proceedings under Subdivision — FLA s. 67D

(1)In proceedings under this Subdivision in relation to the birth of a child, a court may make such order as it thinks proper.

(2)In exercising its powers under this Subdivision, a court may do all or any of the following — 

(a)order payment of a lump sum, whether in one amount or by instalments;

(b)order payment of a weekly, monthly or other periodic amount;

(c)order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

(d)order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(e)order that payment be made to a specified person or public authority or into court;

(f)make a permanent order, an order pending the disposal of proceedings, an order for a fixed period or an order until further order;

(g)make an order imposing terms and conditions;

(h)make an order by consent;

(i)make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (h)) that it considers appropriate;

(j)make an order under this Subdivision at any time (whether before or after the birth of the relevant child).

(3)The rules may make provision with respect to the making of orders under this Subdivision (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of amounts payable under them.

138.Urgent orders — FLA s. 67E

If, in proceedings under this Subdivision in relation to the birth of a child — 

(a)a court is of the opinion that the applicant is in immediate need of financial assistance; but

(b)it is not practicable in the circumstances to determine immediately what order (if any) should be made (whether because the applicant has not yet given birth to the child or otherwise),

the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate.

139.Who may institute proceedings — FLA s. 67F

Proceedings under this Subdivision in relation to the birth of a child may be instituted by the mother or by the mother’s legal personal representative.

140.Time limit for institution of proceedings — FLA s. 67G

(1)Proceedings under this Subdivision in relation to the birth of a child may be instituted — 

(a)at any time during the pregnancy of the mother; or

(b)after the birth of the child, but not later than 12 months after the birth except by leave of a court.

(2)A court must not grant leave under subsection (1)(b) unless it is satisfied that refusal to grant leave would cause hardship to the applicant, the child or another person.

141.Orders for, and unspent, child bearing expenses

(1)An order made under this Subdivision must recite the finding, as is appropriate in the case, that — 

(a)the woman is pregnant by a man named in the order as the father of the woman’s unborn child, or the person named in the order is the parent of the woman’s unborn child under section 6A of the Artificial Conception Act 1985; or

(b)the woman has been delivered of a child or a stillborn child of which a person named in the order is, or was, the father, or the parent under section 6A of the Artificial Conception Act 1985,

and a reference in subsection (2) to the other parent is a reference to the person named in the relevant order.

(2)If — 

(a)money has been paid in accordance with an order made under this Subdivision; and

(b)the pregnancy that is the subject of the order has come to an end but the woman has not given birth to a live child; and

(c)the money has not been spent by the time the pregnancy came to an end,

then, on the application of any party, or of its own motion, a court may direct that the money — 

(d)be kept by the woman; or

(e)be repaid to the other parent; or

(f)be divided, in such proportions as the court thinks fit, between the woman and the other parent.

[Section 141 amended by No. 3 of 2002 s. 66.]

Subdivision 3 — Location and recovery of children

[142.Deleted by No. 35 of 2006 s. 175.]

143.Meaning of location order and State information order — FLA s. 67J

(1)A location order is an order made by a court requiring — 

(a)a person to provide the registrar with information that the person has or obtains about the child’s location; or

(b)the principal officer of a State entity or the person who holds an office or position specified in the order in, or in relation to, the State entity, to provide the registrar with information about the child’s location that is contained in or comes into the records of the State entity.

(2)A State information order is a location order described in subsection (1)(b).

144.Who may apply for location order — FLA s. 67K

A location order in relation to a child may be applied for by — 

(a)a person with whom the child is to live under a parenting order; or

(b)a person with whom the child is to spend time under a parenting order; or

(c)a person with whom the child is to communicate under a parenting order; or

(caa)a person who has parental responsibility for the child under a parenting order; or

(ca)a grandparent of the child; or

(d)any other person concerned with the care, welfare or development of the child.

[Section 144 amended by No. 25 of 2002 s. 63; No. 35 of 2006 s. 159.]

145.Child’s best interests paramount consideration in making location order — FLA s. 67L

In deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

146.Provisions about location orders, other than State information orders — FLA s. 67M

(1)This section applies to location orders other than State information orders.

(2)Subject to section 145, a court may make a location order if it is satisfied that the person to whom the order applies is likely to have information about the child’s location.

(3)If the person to whom a location order applies holds an office or position in, or in relation to, a State entity, the order does not apply to information that the person has or obtains because of holding that office or position.

(4)A location order stays in force for 12 months or such longer period as the court considers appropriate.

(5)While a location order is in force, the person to whom it applies must provide the information sought by the order as soon as practicable, or as soon as practicable after the person obtains it.

(6)The person to whom a location order applies must comply with the order despite anything in any other written law.

147.Provisions about State information orders — FLA s. 67N

(1)This section applies to State information orders.

(2)Subject to section 145, a court may make a State information order in respect of a State entity if the court is satisfied that information about the child’s location is likely to be contained in, or to come into, the records of the State entity.

(3)A court must not make a State information order unless — 

(a)a copy of the application for the order has been served on the person to whom the order will apply; and

(b)the period of 7 days after service of that copy of the application has expired or the court considers that there are special circumstances because of which the order should be made before the end of that period of 7 days.

(4)If an application for a State information order relates to more than one State entity then a court must not make the order in relation to more than one State entity unless the court considers it should do so because of exceptional circumstances.

(5)A court may state that a State information order only applies to records of a particular kind if the court considers that — 

(a)the information sought by the order is only likely to be contained in records of that kind; and

(b)to apply the order to all records of the State entity concerned would place an unreasonable burden on the State entity’s resources.

(6)A State information order stays in force for 12 months.

(7)While a State information order is in force, the person to whom the order applies must, subject to subsection (9), provide the information sought by the order as soon as practicable, or as soon as practicable after the information comes into the records of the State entity concerned.

(8)If the person (the official) to whom a State information order applies provides another person (in accordance with the order) with information sought by the order, the official must, at the same time, provide the other person with any information about actual or threatened violence to the child concerned, to a parent of the child, or to another person with whom the child lives, that is in the records of the State entity concerned.

(9)A State information order does not require the records of the State entity concerned to be searched for the information sought by the order more often than once every 3 months unless specifically so ordered by a court.

(10)The person to whom a State information order applies must comply with the order despite anything in any other written law.

148.Information provided under location order not to be disclosed except to limited persons — FLA s. 67P

(1)Information provided to a registrar under a location order (including a State information order) must not, intentionally or recklessly, be disclosed by the registrar, or by any other person who obtains the information (whether directly or indirectly and whether under this section or otherwise) because of the provision of the information to the registrar, except — 

(a)to the registrar of another court; or

(b)to an officer of the Court for the purpose of that officer’s responsibilities or duties; or

(c)to a process‑server engaged by a court or by an officer of the Court; or

(d)with the leave of the court that made the location order — 

(i)to the legal adviser of the applicant for the order; or

(ii)to a process‑server engaged by that legal adviser;

or

(e)if a recovery order that consists of or includes an authorisation or direction described in section 149(b) or (c) is in force, to a person to whom the authorisation or direction is addressed.

Penalty: $13 200.

(2)Nothing in paragraphs (a) to (e) of subsection (1) authorises the disclosure of information to the applicant for the location order.

[Section 148 amended by No. 25 of 2002 s. 75.]

149.Meaning of recovery order — FLA s. 67Q

A recovery order is an order made by a court doing all or any of the following — 

(a)requiring the return of a child to — 

(i)a parent of the child; or

(ii)a person with whom the child is to live under a parenting order; or

(iii)a person with whom the child is to spend time under a parenting order; or

(iv)a person with whom the child is to communicate under a parenting order; or

(v)a person who has parental responsibility for the child;

(b)authorising or directing any person, with such assistance as may be required, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child;

(c)authorising or directing any person, with such assistance as may be required, and if necessary by force, to recover a child;

(d)authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to — 

(i)a parent of the child; or

(ii)a person described in paragraph (a)(ii), (iii), (iv) or (v); or

(iii)some other person on behalf of a person described in this paragraph;

(e)giving directions about the day‑to‑day care of a child until the child is returned or delivered to another person;

(f)prohibiting a person from again removing or taking possession of a child;

(g)authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.

[Section 149 amended by No. 25 of 2002 s. 64; No. 35 of 2006 s. 160.]

150.How recovery orders authorise or direct people — FLA s. 67R

(1)An authorisation or direction described in section 149(b), (c) or (d) may be addressed to — 

(a)the Marshal; or

(b)the Commissioner of Police; or

(c)every person from time to time holding or acting in an office specified in the order.

(2)Without limiting the generality of subsection (1), an authorisation or direction described in section 149(b), (c) or (d) may be addressed to — 

(a)a named person who holds an appointment as a child recovery officer under subsection (3); or

(b)every person from time to time holding or acting in an office of child recovery officer.

(3)The Attorney General may appoint persons to be child recovery officers for the purposes of this Subdivision.

(4)An appointment under subsection (3) may be of — 

(a)a named person only; or

(b)every person from time to time holding or acting in an office specified in the appointment.

151.How recovery orders to stop and search etc. name or describe vehicles, places etc. — FLA s. 67S

An authorisation or direction described in section 149(b) may be expressed to apply to — 

(a)a vehicle, vessel, aircraft, premises or place named or described either specifically or in general terms; or

(b)any vehicle, vessel, aircraft, premises or place in which there is, at any time, reasonable cause to believe that the child concerned may be found.

152.Who may apply for recovery order — FLA s. 67T

A recovery order in relation to a child may be applied for by — 

(a)a person with whom the child is to live under a parenting order; or

(b)a person with whom the child is to spend time under a parenting order; or

(c)a person with whom the child is to communicate under a parenting order; or

(caa)a person who has parental responsibility for the child under a parenting order; or

(ca)a grandparent of the child; or

(d)any other person concerned with the care, welfare or development of the child.

[Section 152 amended by No. 25 of 2002 s. 65; No. 35 of 2006 s. 161.]

153.Court’s power to make recovery order — FLA s. 67U

In proceedings for a recovery order, a court may, subject to section 154, make such recovery order as it thinks proper.

154.Child’s best interests paramount consideration in making recovery order — FLA s. 67V

In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

155.Duration of recovery order — FLA s. 67W

(1)A recovery order remains in force for 12 months or such lesser period as is specified in the order.

(2)To avoid doubt, unless a recovery order specifically provides to the contrary, each term of the order continues to have effect until the end of the period for which it remains in force regardless of whether anything has previously been done in accordance with the order.

[Section 155 amended by No. 25 of 2002 s. 66.]

156.Persons not to prevent or hinder taking of action under recovery order — FLA s. 67X

(1)This section applies to a recovery order that authorises or directs a person or persons to take action as described in section 149(b), (c) or (d).

(2)A person must not prevent or hinder the taking of the action by the person or persons authorised or directed to take the action.

(3)If a court is satisfied that a person has intentionally, and without reasonable excuse, contravened subsection (2), the court may —

(a)order the person to pay a fine not exceeding $1 100; or

(b)order the person to enter into a bond (with or without surety or security) on conditions specified by the court; or

(c)order the person to be imprisoned until the person enters into a bond (with or without surety or security) on conditions specified by the court, or until the person has been imprisoned for 3 months, whichever happens first.

(4)A court that makes an order under subsection (3) may make such other orders as it considers necessary to ensure the person does not again contravene subsection (2).

[Section 156 amended by No. 25 of 2002 s. 74(1) and 75.]

157.Obligation to notify persons of child’s return — FLA s. 67Y

(1)This section applies if — 

(a)a recovery order that consists of or includes provisions described in section 149(a), (b), (c) or (d) is in force in relation to a child; and

(b)the child returns, or is returned, to the person who applied for the order.

(2)The person who applied for the order must, as soon as practicable after the child’s return, give notice of the child’s return — 

(a)to the registrar of the court that issued the recovery order; and

(b)if a location order in relation to the child is in force and was applied for by the person, to the person to whom the location order applies.

Subdivision 4 — Allegations of child abuse and family violence

[Heading inserted by No. 13 of 2013 s. 16.]

158.Meaning of registrar

In this Subdivision — 

registrar — 

(a)in relation to the Court, means the Principal Registrar, a registrar or a deputy registrar; and

(b)in relation to the Magistrates Court, means a registrar of that court at the place where that court was held.

[Section 158 amended by No. 59 of 2004 s. 95.]

159.Where interested person in proceedings makes allegation of child abuse — FLA s. 67Z

(1A)In this section —

interested person, in proceedings under this Act, means —

(a)a party to the proceedings; or

(b)an independent children’s lawyer who represents the interests of a child in the proceedings; or

(c)any other person prescribed by the regulations for the purposes of this paragraph;

prescribed form means the form approved by the Chief Judge of the Court for the purposes of this section.

(1)If an interested person in proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused then the interested person must — 

(a)file a notice in the prescribed form in the court hearing the proceedings; and

(b)serve a copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

(2)If a notice under subsection (1) is filed in a court, the registrar of the court must, as soon as practicable, notify the CEO.

(3)If a registrar notifies the CEO under subsection (2) the registrar may make such disclosures of other information as the registrar reasonably believes are necessary to enable the CEO to properly manage the matter the subject of the notification.

[Section 159 amended by No. 34 of 2004 Sch. 2 cl. 10(7); No. 13 of 2013 s. 17.]

160.Where member of Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc. — FLA s. 67ZA

(1)This section applies to a person in the course of performing duties or functions, or exercising powers, as —

(a)the Principal Registrar, a registrar or a deputy registrar; or

(b)a family consultant; or

(c)a family counsellor; or

(d)a family dispute resolution practitioner; or

(e)an arbitrator; or

(f)a legal practitioner independently representing a child’s interests.

(2)If a person referred to in subsection (1) has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify the CEO of the suspicion and the basis for the suspicion.

(3)If a person referred to in subsection (1) has reasonable grounds for suspecting that a child — 

(a)has been ill treated, or is at risk of being ill treated; or

(b)has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child,

the person may notify the CEO of the suspicion and the basis for the suspicion.

(4)If a person mentioned in subsection (1) knows that the CEO has previously been notified under subsection (2) or section 159(2) that a child has been abused or is at risk of being abused — 

(a)the person need not notify the CEO of a suspicion that the child has been abused or is at risk of being abused; but

(b)the person may notify the CEO of the suspicion.

(5)If notice under this section is given orally, written notice confirming the oral notice is to be given to the CEO as soon as practicable after the oral notice.

(6)If a person referred to in subsection (1) notifies the CEO under this section the person may make such disclosures of other information as the person reasonably believes are necessary to enable the CEO to properly manage the matter the subject of the notification.

[Section 160 amended by No. 25 of 2002 s. 46; No. 34 of 2004 Sch. 2 cl. 10(7); No. 35 of 2006 s. 123.]

161.No liability for notification under section 159 or 160 — FLA s. 67ZB

(1)A person — 

(a)must notify the CEO under section 159(2) or 160(2); or

(b)may notify the CEO under section 160(3) or (4); or

(c)may disclose other information under section 159(3) or 160(6),

despite any obligation of confidentiality imposed on the person by this Act, any other written law, any other law or anything else (including a contract or professional ethics).

(2)A person is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of a notification under section 159(2) or 160(2).

(3)A person is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of a notification under section 160(3) or (4), or a disclosure under section 159(3) or 160(6), if the notification or disclosure is made in good faith.

(4)Evidence of a notification under section 159(2) or section 160(2), (3) or (4), or a disclosure under section 159(3) or 160(6), is not admissible in any court except where that evidence is given by the person who made the notification or disclosure.

(5)In this section — 

court means a court (whether of a kind referred to in section 8(a) or (b) or otherwise) and includes a board, tribunal or other body concerned with professional ethics.

[Section 161 amended by No. 34 of 2004 Sch. 2 cl. 10(7).]

162A.Where interested person makes allegation of family violence — FLA s. 67ZBA

(1)In this section —

interested person, in proceedings for an order under this Part in relation to a child, means —

(a)a party to the proceedings; or

(b)an independent children’s lawyer who represents the interests of the child in the proceedings; or

(c)any other person prescribed by the regulations for the purposes of this paragraph;

prescribed form means the form approved by the Chief Judge of the Court for the purposes of this section.

(2)This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that —

(a)there has been family violence by one of the parties to the proceedings; or

(b)there is a risk of family violence by one of the parties to the proceedings.

(3)The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in subsection (2)(a) or (b).

(4)If the alleged family violence (or risk of family violence) is abuse of a child (or a risk of abuse of a child) —

(a)the interested person making the allegation must either file and serve a notice under subsection (3) or under section 159(1) (but does not have to file and serve a notice under both those provisions); and

(b)if the notice is filed under subsection (3), the registrar must deal with the notice as if it had been filed under section 159(1).

[Section 162A inserted by No. 13 of 2013 s. 18.]

162B.Court to take prompt action in relation to allegations of child abuse or family violence — FLA s. 67ZBB

(1)This section applies if —

(a)a notice is filed under section 159(1) or 162A(3) in proceedings for an order under this Part in relation to a child; and

(b)the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that —

(i)there has been abuse of the child by one of the parties to the proceedings; or

(ii)there would be a risk of abuse of the child if there were to be a delay in the proceedings; or

(iii)there has been family violence by one of the parties to the proceedings; or

(iv)there is a risk of family violence by one of the parties to the proceedings.

(2)The court must —

(a)consider what interim or procedural orders (if any) should be made —

(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

(ii)to protect the child or any of the parties to the proceedings;

and

(b)make such orders of that kind as the court considers appropriate; and

(c)deal with the issues raised by the allegation as expeditiously as possible.

(3)The court must take the action required by subsection (2)(a) and (b) —

(a)as soon as practicable after the notice is filed; and

(b)if it is appropriate having regard to the circumstances of the case — within 8 weeks after the notice is filed.

(4)Without limiting subsection (2)(a)(i), the court must consider whether orders should be made under section 202K to obtain documents or information from prescribed government agencies in relation to the allegation.

(5)Without limiting subsection (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 235.

(6)A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.

[Section 162B inserted by No. 13 of 2013 s. 18.]

Subdivision 5 — Other orders about children

162.Orders relating to welfare of children — FLA s. 67ZC

(1)In addition to the jurisdiction that a court has under this Act in relation to children, a court also has jurisdiction to make orders relating to the welfare of children.

(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

163.Orders for delivery of passports — FLA s. 67ZD

If a court considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate.

Division 9 — Independent representation of child’s interests

[Heading inserted by No. 35 of 2006 s. 137.]

164.Court order for independent representation of child’s interests — FLA s. 68L

(1)This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration.

(2)If it appears to a court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court —

(a)may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

(b)may make such other orders as it considers necessary to secure that independent representation of the child’s interests.

(3)A court may make an order for the independent representation of the child’s interests in the proceedings by a lawyer —

(a)on its own initiative; or

(b)on the application of —

(i)the child; or

(ii)an organisation concerned with the welfare of children; or

(iii)any other person.

(4)Without limiting subsection (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child’s interests to find out what the child’s views are on the matters to which the proceedings relate.

(5)Subsection (4) does not apply if complying with that subsection would be inappropriate because of —

(a)the child’s age or maturity; or

(b)some other special circumstance.

[Section 164 inserted by No. 35 of 2006 s. 137.]

165.Role of independent children’s lawyer — FLA s. 68LA

(1)This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.

(2)The independent children’s lawyer must —

(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

(b)act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

(3)The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4)The independent children’s lawyer —

(a)is not the child’s legal representative; and

(b)is not obliged to act on the child’s instructions in relation to the proceedings.

(5)The independent children’s lawyer must —

(a)act impartially in dealings with the parties to the proceedings; and

(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(c)if a report or other document that relates to the child is to be used in the proceedings —

(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii)ensure that those matters are properly drawn to the court’s attention;

and

(d)endeavour to minimise the trauma to the child associated with the proceedings; and

(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

(6)Subject to subsection (7), the independent children’s lawyer —

(a)is not under an obligation to disclose to the court; and

(b)cannot be required to disclose to the court,

any information that the child communicates to the independent children’s lawyer.

(7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.

(8)Subsection (7) applies even if the disclosure is made against the wishes of the child.

[Section 165 inserted by No. 35 of 2006 s. 137.]

166.Order that child be made available for examination — FLA s. 68M

(1)This section applies if an independent children’s lawyer is appointed to independently represent a child’s interests in relation to proceedings under this Act.

(2)A court may, on application by the independent children’s lawyer, order a person mentioned in subsection (3) to make the child available, as specified in the order, for an examination to be made for the purpose of preparing a report about the child for use by the independent children’s lawyer in connection with the proceedings.

(3)The order may be directed to —

(a)a parent of the child; or

(b)a person with whom the child is to live under a parenting order; or

(c)a person with whom the child is to spend time under a parenting order; or

(d)a person with whom the child is to communicate under a parenting order; or

(e)a person who has parental responsibility for the child.

[Section 166 inserted by No. 35 of 2006 s. 137.]

[167‑172.Deleted by No. 35 of 2006 s. 137.]

Division 10 — Family violence

[Heading inserted by No. 35 of 2006 s. 142(1).]

173.Purposes of this Division — FLA s. 68N

The purposes of this Division are —

(a)to resolve inconsistencies between —

(i)family violence orders; and

(ii)certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child;

and

(b)to ensure that orders, injunctions and arrangements of the kind referred to in paragraph (a)(ii) do not expose people to family violence; and

(c)to achieve the objects and principles in section 66.

[Section 173 inserted by No. 35 of 2006 s. 142(1).]

174.Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order — FLA s. 68P

(1)This section applies if —

(a)a court —

(i)makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or

(ii)makes a recovery order (as defined in section 149) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or

(iii)grants an injunction under section 235 or 235A that expressly or impliedly requires or authorises a person to spend time with a child;

and

(b)the order made or injunction granted is inconsistent with an existing family violence order.

(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child —

(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and

(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and

(c)explain (or arrange for someone else to explain) the order or injunction to —

(i)the applicant and respondent in the proceedings for the order or injunction; and

(ii)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

(iii)the person protected by the family violence order (if that person is not the applicant or respondent);

and

(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand —

(i)the purpose of the order or injunction; and

(ii)the obligations created by the order or injunction, including how the contact that it provides for is to take place; and

(iii)the consequences that may follow if a person fails to comply with the order or injunction; and

(iv)the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and

(v)the circumstances in which a person may apply for variation or revocation of the order or injunction.

(3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to —

(a)the applicant and respondent in the proceedings for the order or injunction; and

(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

(c)the person protected by the family violence order (if that person is not the applicant or respondent); and

(d)the registrar, executive manager or other appropriate officer of the court that last made or varied the family violence order; and

(e)the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and

(f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.

(4)Failure to comply with this section does not affect the validity of the order or injunction.

[Section 174 inserted by No. 35 of 2006 s. 142(1).]

175.Relationship of order or injunction made under this Act with existing inconsistent family violence order — FLA s. 68Q

(1)To the extent to which —

(a)an order or injunction mentioned in section 174(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and

(b)the order or injunction is inconsistent with an existing family violence order,

the family violence order is invalid.

(2)An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by —

(a)the applicant or respondent in the proceedings for the order or injunction mentioned in section 174(1)(a); or

(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); or

(c)the person protected by the family violence order (if that person is not the applicant or respondent).

(3)The court must hear and determine the application and make such declarations as it considers appropriate.

[Section 175 inserted by No. 35 of 2006 s. 142(1).]

176.Power of court making family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act — FLA s. 68R

(1)In proceedings to make or vary a family violence order, a court may revive, vary, discharge or suspend —

(a)a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or

(b)a recovery order (as defined in section 149) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

(c)an injunction granted under section 235 or 235A, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

(d)to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child —

(i)an undertaking given to, and accepted by, a court; or

(ii)a registered parenting plan within the meaning of section 76(6); or

(iii)a bond entered into under an order under this Act.

(2)The court may do so —

(a)on its own initiative; or

(b)on application by any person.

(3)The court must not do so unless —

(a)it also makes or varies a family violence order in the proceedings (whether or not by interim order); and

(b)if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in subsection (1)(a), (b) or (c), the court has before it material that was not before the court that made that order or injunction.

(4)The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.

(5)In exercising its power under subsection (1), the court must —

(a)have regard to the purposes of this Division (stated in section 173); and

(b)have regard to whether contact with both parents is in the best interests of the child concerned; and

(c)if varying, discharging or suspending an order or injunction mentioned in subsection (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order, be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.

(6)The regulations may require a copy of the court’s decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations.

(7)Failure to comply with any requirement of the regulations referred to in subsection (6) does not affect the validity of the court’s decision.

[Section 176 inserted by No. 35 of 2006 s. 142(1).]

177.Application of Act and rules when exercising section 176 power — FLA s. 68S

(1)The following provisions do not apply to a court exercising the power under section 176 —

(a)section 88;

(b)section 91(2);

(c)section 66G;

(d)section 43;

(e)any provisions (for example, section 66A) that would otherwise make the best interests of the child the paramount consideration;

(f)any provisions of this Act or the rules specified in the regulations.

(2)If a court is exercising the power under section 176 in proceedings to make an interim family violence order or an interim variation of a family violence order —

(a)the court has a discretion about whether to apply section 66C(3)(a); and

(b)any provisions of this Act or the rules specified in the regulations do not apply.

(3)A court exercising the power under section 176 may, as it thinks appropriate, dispense with any otherwise applicable rules.

[Section 177 inserted by No. 35 of 2006 s. 142(1).]

178.Special provisions relating to proceedings to make interim (or interim variation of) family violence order — FLA s. 68T

(1)If, in proceedings to make an interim family violence order or an interim variation of a family violence order, the court revives, varies or suspends an order, injunction or arrangement under section 176, that revival, variation or suspension ceases to have effect at the earlier of —

(a)the time the interim order stops being in force; and

(b)the end of the period of 21 days starting when the interim order was made.

(2)No appeal lies in relation to the revival, variation or suspension.

[Section 178 inserted by No. 35 of 2006 s. 142(1).]

[179‑182.Deleted by No. 35 of 2006 s. 142(1).]

Division 11 — Proceedings, parentage presumptions and evidence and jurisdiction as to child welfare laws

Subdivision 1 — What this Division does

183.What this Division does — FLA s. 69A

This Division deals with — 

(a)the institution of proceedings (Subdivision 2); and

(b)presumptions of parentage (Subdivision 3); and

(c)parentage evidence (Subdivision 4); and

(d)jurisdiction in relation to child welfare laws (Subdivision 5).

Subdivision 2 — Institution of proceedings

184.Certain proceedings to be instituted only under this Act — FLA s. 69B

(1)Proceedings that may be instituted under this Act must not be instituted otherwise than under this Act.

(2)Subsection (1) does not apply in relation to the institution of proceedings under the Child Support (Assessment) Act.

185.Who may institute proceedings — FLA s. 69C

(1)Sections 88, 118, 139, 144, 152 and 180(5) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.

(2)Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by — 

(a)either or both of the child’s parents; or

(b)the child; or

(c)a grandparent of the child; or

(d)any other person concerned with the care, welfare or development of the child.

186.Institution of maintenance proceedings by certain persons — FLA s. 69D

(1)The Collector of Maintenance or an assistant collector of maintenance may, on behalf of a child — 

(a)institute and conduct proceedings with respect to the maintenance of the child; and

(b)institute and conduct proceedings for the purpose of enforcing a child maintenance order made with respect to the child.

(2)Proceedings instituted on behalf of a child under subsection (1) are to be treated, for the purposes of section 185 and the provisions referred to in it, as having been instituted by the child.

187.Applicant may be in contempt — FLA s. 69F

A court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court.

Subdivision 3 — Presumptions of parentage

188.Presumptions of parentage arising from marriage — FLA s. 69P

(1)If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.

(2)If — 

(a)at a particular time — 

(i)a marriage to which a woman is a party is ended by death; or

(ii)a purported marriage to which a woman is a party is annulled;

and

(b)a child is born to the woman within 44 weeks after that time,

the child is presumed to be a child of the woman and the husband or purported husband.

(3)If — 

(a)the parties to a marriage separated at any time; and

(b)after the separation, they resumed cohabitation on one occasion; and

(c)within 3 months after the resumption of cohabitation, they separated again and lived separately and apart; and

(d)a child is born to the woman within 44 weeks after the end of the cohabitation, but after the dissolution of the marriage,

the child is presumed to be a child of the woman and the husband.

189.Presumption of paternity arising from cohabitation — FLA s. 69Q

If — 

(a)a child is born to a woman; and

(b)at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married,

the child is presumed to be a child of the man.

190.Presumption of parentage arising from registration of birth — FLA s. 69R

If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.

191.Presumptions of parentage arising from findings of courts — FLA s. 69S

(1)If — 

(a)during the lifetime of a particular person, a court has — 

(i)found expressly that the person is a parent of a particular child; or

(ii)made a finding that it could not have made unless the person was a parent of a particular child;

and

(b)the finding has not been altered, set aside or reversed,

the person is conclusively presumed to be a parent of the child.

(2)If — 

(a)after the death of a particular person, a court has — 

(i)found expressly that the person was a parent of a particular child; or

(ii)made a finding that it could not have made unless the person was a parent of a particular child;

and

(b)the finding has not been altered, set aside or reversed,

the person is presumed to have been a parent of the child.

(3)For the purposes of this section — 

court means a federal court, a court of a State or a Territory or a court of a prescribed overseas jurisdiction.

192.Presumption of paternity arising from acknowledgments — FLA s. 69T

If — 

(a)under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, a man has executed an instrument acknowledging that he is the father of a specified child; and

(b)the instrument has not been annulled or otherwise set aside,

the man is presumed to be the father of the child.

193.Rebuttal of presumptions etc. — FLA s. 69U

(1)A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.

(2)Where — 

(a)2 or more presumptions arising under this Subdivision are relevant in any proceedings; and

(b)those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings,

the presumption that appears to a court to be the more or most likely to be correct prevails.

(3)This section does not apply to a presumption arising under section 191(1).

Subdivision 4 — Parentage evidence

194.Evidence of parentage — FLA s. 69V

If the parentage of a child is a question in issue in proceedings under this Act, the court hearing the proceedings may make an order requiring any person to give such evidence as is material to the question.

195.Orders for conducting parentage testing procedures — FLA s. 69W

(1)If the parentage of a child is a question in issue in proceedings under this Act, the court hearing the proceedings may make an order (a parentage testing order) requiring a parentage testing procedure to be conducted in relation to a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.

(2)The court hearing the proceedings referred to in subsection (1) may make a parentage testing order — 

(a)on its own initiative; or

(b)on the application of — 

(i)a party to the proceedings; or

(ii)an independent children’s lawyer representing the child’s interests under an order made under section 164.

(3)A parentage testing order may be made in relation to — 

(a)the child; or

(b)a person known to be the mother of the child; or

(c)any other person, if the court hearing the proceedings referred to in subsection (1) is of the opinion that, if the parentage testing procedure were to be conducted in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

(4)A parentage testing order may be made subject to terms and conditions.

(5)This section does not affect the generality of section 194.

[Section 195 amended by No. 35 of 2006 s. 138.]

196.Orders associated with parentage testing orders — FLA s. 69X

(1)If a court makes a parentage testing order, it may also make orders under subsection (2) or (4).

(2)The court referred to in subsection (1) may make such orders as it considers necessary or desirable — 

(a)to enable the parentage testing procedure to be conducted; or

(b)to make the parentage testing procedure more effective or reliable.

(3)Some examples of the kinds of orders a court may make under subsection (2) are as follows — 

(a)an order requiring a person to submit to a medical procedure;

(b)an order requiring a person to provide a bodily sample;

(c)an order requiring a person to provide information relevant to the person’s medical or family history.

(4)The court referred to in subsection (1) may make such orders as it considers just in relation to costs incurred in relation to — 

(a)conducting the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or

(b)the preparation of reports relating to the information obtained as a result of conducting the parentage testing procedure.

197.Orders directed to persons 18 or over — FLA s. 69Y

(1)If a person who is 18 or more years of age contravenes a parentage testing order or an order under section 196, the person is not liable to any penalty in relation to the contravention.

(2)A court may draw such inferences from the contravention as appear just in the circumstances.

198.Orders directed to children under 18 — FLA s. 69Z

(1)This section applies if a parentage testing order, or an order under section 196, requires a medical procedure or other act to be carried out in relation to a child who is under 18 years of age.

(2)The procedure or act must not be carried out in relation to the child under the order without the consent of — 

(a)a parent of the child; or

(b)a guardian of the child; or

(c)a person who, under a parenting order, has responsibility for the child’s long‑term or day‑to‑day care, welfare and development.

(3)A court may draw such inferences from a failure or refusal to consent as mentioned in subsection (2) as appear just in the circumstances.

[Section 198 amended by No. 35 of 2006 s. 162.]

199.No liability if parent etc. consents — FLA s. 69ZA

(1)A person who conducts, or who assists in conducting, a medical procedure or other act in relation to a child under a parentage testing order is not liable to any civil or criminal action in relation to the proper conducting of the procedure or act if it is done with the consent of — 

(a)a parent of the child; or

(b)a guardian of the child; or

(c)a person who, under a parenting order, has responsibility for the child’s long‑term or day‑to‑day care, welfare and development.

(2)Subsection (1) does not affect any liability of a person for an act done negligently, or negligently omitted to be done, in relation to conducting the medical procedure or act.

[Section 199 amended by No. 35 of 2006 s. 163.]

200.Regulations about conducting, and reporting on, parentage testing procedures — FLA s. 69ZB

The regulations may provide for — 

(a)the conduct of parentage testing procedures under parentage testing orders; and

(b)the preparation of reports relating to the information obtained as the result of conducting such procedures.

201.Reports of information obtained may be received in evidence — FLA s. 69ZC

(1)A report made in accordance with regulations under section 200(b) may be received in evidence in any proceedings under this Act.

(2)If, under subsection (1), a report is received in evidence in proceedings under this Act, the court hearing the proceedings may make an order requiring the person who made the report, or any person whose evidence may be relevant in relation to the report, to appear before the court and give evidence in relation to the report.

(3)The court hearing proceedings under this Act may make an order under subsection (2) — 

(a)on its own initiative; or

(b)on the application of — 

(i)a party to the proceedings; or

(ii)an independent children’s lawyer representing the relevant child’s interests.

[Section 201 amended by No. 35 of 2006 s. 139.]

Subdivision 5 — Child welfare laws not affected

202.Child welfare laws not affected — FLA s. 69ZK

(1)A court must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the control or in the care (however described), of a person under a child welfare law unless — 

(a)the order is expressed to come into effect when the child ceases to be under that control or in that care; or

(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent has been obtained from a person who, under the relevant child welfare law, has responsibility for the control or care (however described) of the child.

(2)Nothing in this Act, and no decree under this Act, affects — 

(a)the jurisdiction of a court (whether of a kind referred to in section 8(a) or (b) or otherwise), or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under control or in the care (however described) of a person under a child welfare law; or

(b)any such order made or action taken; or

(c)the operation of a child welfare law in relation to a child.

(3)If it appears to a court that another court (whether of a kind referred to in section 8(a) or (b) or otherwise) or an authority proposes to make an order, or to take any other action, of the kind referred to in subsection (2)(a) in relation to a child, the first‑mentioned court may adjourn any proceedings before it that relate to the child.

Division 11A — Principles for conducting child‑related proceedings

[Heading inserted by No. 35 of 2006 s. 105.]

Subdivision 1 — Proceedings to which this Division applies

[Heading inserted by No. 35 of 2006 s. 105.]

202A.Proceedings to which this Division applies — FLA s. 69ZM

(1)Subject to section 202H, this Division applies to proceedings that are wholly under this Part.

(2)This Division also applies to proceedings that are partly under this Part —

(a)to the extent that they are proceedings under this Part; and

(b)if the parties to the proceedings consent, to the extent that they are not proceedings under this Part.

(3)This Division also applies to any other proceedings between the parties that arise from the breakdown of the parties’ relationship, if the parties to the proceedings consent.

(4)Proceedings to which this Division applies are child‑related proceedings.

(5)Consent given for the purposes of subsection (2)(b) or (3) must be —

(a)free from coercion; and

(b)given in the form prescribed by the rules.

(6)A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of subsection (2)(b) or (3).

[Section 202A inserted by No. 35 of 2006 s. 105.]

Subdivision 2 — Principles for conducting child‑related proceedings

[Heading inserted by No. 35 of 2006 s. 105.]

202B.Principles for conducting child‑related proceedings — FLA s. 69ZN

(1)The court must give effect to the principles in this section —

(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

(b)in making other decisions about the conduct of child‑related proceedings.

(2)Failure to give effect to the principles does not invalidate the proceedings or any order made in them.

(3)Regard is to be had to the principles in interpreting this Division.

(4)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

(5)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

(6)The third principle is that the proceedings are to be conducted in a way that will safeguard —

(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

(b)the parties to the proceedings against family violence.

(7)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

(8)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

[Section 202B inserted by No. 35 of 2006 s. 105; amended by No. 13 of 2013 s. 19.]

202C.This Division also applies to proceedings in Chambers — FLA s. 69ZO

A judge, registrar or magistrate, who is hearing child‑related proceedings in Chambers, has all of the duties and powers that a court has under this Division.

[Section 202C inserted by No. 35 of 2006 s. 105.]

202D.Powers under this Division may be exercised on court’s own initiative — FLA s. 69ZP

A court may exercise a power under this Division —

(a)on the court’s own initiative; or

(b)at the request of one or more of the parties to the proceedings.

[Section 202D inserted by No. 35 of 2006 s. 105.]

Subdivision 3 — Duties and powers related to giving effect to the principles

[Heading inserted by No. 35 of 2006 s. 105.]

202E.General duties — FLA s. 69ZQ

(1)In giving effect to the principles in section 202B, the court must —

(aa)ask each party to the proceedings —

(i)whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and

(ii)whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence;

and

(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and

(b)decide the order in which the issues are to be decided; and

(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and

(d)in deciding whether a particular step is to be taken, consider whether the likely benefits of taking the step justify the costs of taking it; and

(e)make appropriate use of technology; and

(f)if the court considers it appropriate, encourage the parties to use family dispute resolution or family counselling; and

(g)deal with as many aspects of the matter as it can on a single occasion; and

(h)deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.

(2)Subsection (1) does not limit section 202B(1).

(3)A failure to comply with subsection (1) does not invalidate an order.

[Section 202E inserted by No. 35 of 2006 s. 105; amended by No. 13 of 2013 s. 20.]

202F.Power to make determinations, findings and orders at any stage of proceedings — FLA s. 69ZR

(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following —

(a)make a finding of fact in relation to the proceedings;

(b)determine a matter arising out of the proceedings;

(c)make an order in relation to an issue arising out of the proceedings.

(2)Subsection (1) does not prevent the court doing something mentioned in subsection (1)(a), (b) or (c) at the same time as making final orders.

(3)To avoid doubt, a judge, registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

[Section 202F inserted by No. 35 of 2006 s. 105.]

202G.Use of family consultants — FLA s. 69ZS

At any time during child‑related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings.

[Section 202G inserted by No. 35 of 2006 s. 105.]

Subdivision 4 — Matters relating to evidence

[Heading inserted by No. 35 of 2006 s. 105.]

202H.Rules of evidence not to apply unless court decides — FLA s. 69ZT

(1)The excluded rules of evidence do not apply to child‑related proceedings.

(2)A court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1906 or the rules of evidence not applying because of subsection (1).

(3)Despite subsection (1), a court may decide to apply one or more of the excluded rules of evidence to an issue in the proceedings, if —

(a)the court is satisfied that the circumstances are exceptional; and

(b)the court has taken into account (in addition to any other matters the court thinks relevant) —

(i)the importance of the evidence in the proceedings; and

(ii)the nature of the subject matter of the proceedings; and

(iii) the probative value of the evidence; and

(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

(4)If a court decides to apply an excluded rule of evidence to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the application of the excluded rule of evidence.

(5)Subsection (1) does not revive the operation of —

(a)a rule of common law; or

(b)any written law,

that, but for subsection (1), would have been prevented from operating because of an excluded rule of evidence.

(6)In this section —

child‑related proceedings includes proceedings that are child‑related proceedings within the meaning of the Family Law Act;

excluded rules of evidence means such provisions of the Evidence Act 1906 and the rules of evidence as most closely correspond to the provisions of the Evidence Act 1995 of the Commonwealth referred to in section 69ZT of the Family Law Act.

[Section 202H inserted by No. 35 of 2006 s. 105.]

[202I.Deleted by No. 13 of 2013 s. 28.]

202J.Evidence of children — FLA s. 69ZV

(1)This section applies if a court applies the law against hearsay under section 202H(2) to child‑related proceedings, as defined in section 202H(6).

(2)Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.

(3)A court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).

(4)This section applies despite any other Act or rule of law.

(5)In this section —

child means a person under 18;

representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.

[Section 202J inserted by No. 35 of 2006 s. 105.]

202K.Evidence relating to child abuse or family violence — FLA s. 69ZW

(1)A court may make an order in child‑related proceedings requiring a prescribed government agency to provide the court with the documents or information specified in the order.

(2)The documents or information specified in the order must be documents recording, or information about, one or more of the following —

(a)any notifications to the prescribed government agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

(c)any reports commissioned by the agency in the course of investigating a notification.

(3)Nothing in the order is to be taken to require a prescribed government agency to provide the court with —

(a)documents or information not in the possession or control of the agency; or

(b)documents or information that include the identity of the person who made a notification.

(4)A written law has no effect to the extent that it would, apart from this subsection, hinder or prevent a prescribed government agency complying with the order.

(5)A court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.

(6)Despite subsection (5), a court must not disclose the identity of the person who made a notification, or information that could identify that person, unless —

(a)the person consents to the disclosure; or

(b)the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.

(7)Before making a disclosure for the reasons in subsection (6)(b), a court must ensure that a prescribed government agency that provided the identity or information —

(a)is notified about the intended disclosure; and

(b)is given an opportunity to respond.

(8)In this section —

prescribed government agency means —

(a)a department; or

(b)a State agency or instrumentality; or

(c)a body (whether incorporated or not) or the holder of an office, post or position, established or continued by or under a written law for a public purpose,

prescribed for the purpose of this section.

[Section 202K inserted by No. 35 of 2006 s. 105.]

202L.Court’s general duties and powers relating to evidence — FLA s. 69ZX

(1)In giving effect to the principles in section 202B, a court may —

(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and

(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and

(c)give directions or make orders about how particular evidence is to be given; and

(d)if the court considers that expert evidence is required, give directions or make orders about —

(i)the matters in relation to which an expert is to provide evidence; and

(ii)the number of experts who may provide evidence in relation to a matter; and

(iii)how an expert is to provide the expert’s evidence;

and

(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

(2)Without limiting subsection (1) or section 202F, the court may give directions or make orders —

(a)about the use of written submissions; or

(b)about the length of written submissions; or

(c)limiting the time for oral argument; or

(d)limiting the time for the giving of evidence; or

(e)that particular evidence is to be given orally; or

(f)that particular evidence is to be given by affidavit; or

(g)that evidence in relation to a particular matter not be presented by a party; or

(h)that evidence of a particular kind not be presented by a party; or

(i)limiting, or not allowing, cross‑examination of a particular witness; or

(j)limiting the number of witnesses who are to give evidence in the proceedings.

(3)A court may, in child‑related proceedings —

(a)receive into evidence the transcript of evidence in any other proceedings before —

(i)the court; or

(ii)another court; or

(iii)a tribunal,

and draw any conclusions of fact from that transcript that it thinks proper; and

(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in paragraph (a)(i) to (iii).

[Section 202L inserted by No. 35 of 2006 s. 105.]

Division 12 — State and Territory orders relating to children

[203.Deleted by No. 35 of 2006 s. 176.]

204.Registration of State child orders — FLA s. 70C and 70D

The rules may make provision for and in relation to the registration in a court of State child orders made in this or another State.

205.Effect of registration — FLA s. 70E

A State child order registered in a court under section 204 has the same force and effect as if it were an order made by that court under this Act.

Division 13 — Consequences of failure to comply with orders, and other obligations, that affect children

[Heading inserted by No. 35 of 2006 s. 101.]

Subdivision 1 — Preliminary

[Heading inserted by No. 35 of 2006 s. 101.]

205A.Simplified outline of Division — FLA s. 70NAA

(1)This Division deals with the powers that a court has to make orders to enforce compliance with orders under this Act affecting children.

(2)A court always has the power to vary the order under Subdivision 2, and, in doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 205H).

(3)The other orders that a court can make depend on whether —

(a)a contravention is alleged to have occurred but is not established (Subdivision 3); or

(b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision 4); or

(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision 5 for less serious contraventions and Subdivision 6 for more serious contraventions).

[Section 205A inserted by No. 35 of 2006 s. 101.]

205B.Application of Division — FLA s. 70NAB

Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.

[Section 205B inserted by No. 35 of 2006 s. 101.]

205C.Meaning of contravened an order — FLA s. 70NAC

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if —

(a)where the person is bound by the order, he or she has —

(i)intentionally failed to comply with the order; or

(ii)made no reasonable attempt to comply with the order;

or

(b)otherwise, he or she has —

(i)intentionally prevented compliance with the order by a person who is bound by it; or

(ii)aided or abetted a contravention of the order by a person who is bound by it.

[Section 205C inserted by No. 35 of 2006 s. 101.]

205D.Requirements taken to be included in certain orders — FLA s. 70NAD

For the purposes of this Division —

(a)a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 96 in relation to the order; and

(b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 97 in relation to the order; and

(c)a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 98 in relation to the order; and

(d)a parenting order to which section 98 applies is taken to include a requirement that people act in accordance with that section in relation to the order.

[Section 205D inserted by No. 35 of 2006 s. 101.]

205E.Meaning of reasonable excuse for contravening an order — FLA s. 70NAE

(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if —

(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)a court is satisfied that the respondent ought to be excused in respect of the contravention.

(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in subsection (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if —

(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if —

(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if —

(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 98A applies by acting contrary to section 98A if —

(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

[Section 205E inserted by No. 35 of 2006 s. 101.]

205F.Standard of proof — FLA s. 70NAF

(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

(3)A court may only make an order under —

(aa)section 205O(1)(ea); or

(ab)section 205QA(3)(a); or

(a)section 205SB(2)(a), (d) or (e); or

(b)section 205SF(3)(a),

if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

[Section 205F inserted by No. 35 of 2006 s. 101; amended by No. 13 of 2013 s. 29.]

[205FA.Deleted by No. 35 of 2006 s. 101.]