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Western Australia
Family Court Amendment (Family Violence and
Other Measures) Bill 2012
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Act amended 2
Part 2 -- Amendments relating to
family violence
4. Section 5 amended 3
5. Section 6 amended 4
6. Section 9A inserted 4
9A. Meaning of "family violence" etc. -- FLA
s. 4AB 4
7. Section 37 amended 6
8. Section 66 amended 6
9. Part 5 Division 1 Subdivision 2 heading replaced 7
Subdivision 2 -- Best interests of the child:
court proceedings
10. Section 66C amended 7
11. Sections 66HA and 66HB inserted 8
66HA. Informing court of care arrangements
under child welfare laws -- FLA s. 60CH 8
66HB. Informing court of notifications to, and
investigations by, prescribed government
agencies -- FLA s. 60CI 9
12. Part 5 Division 1 Subdivision 3A inserted 10
Subdivision 3A -- Best interests of the child:
adviser's obligations
66HC. Adviser's obligations in relation to best
interests of child -- FLA s. 60D 10
307--1 page i
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Contents
13. Section 66J deleted 11
14. Section 78A amended 11
15. Section 133 amended 12
16. Part 5 Division 8 Subdivision 4 heading replaced 12
Subdivision 4 -- Allegations of child abuse and
family violence
17. Section 159 amended 12
18. Sections 162A and 162B inserted 13
162A. Where interested person makes allegation
of family violence -- FLA s. 67ZBA 13
162B. Court to take prompt action in relation to
allegations of child abuse or family
violence -- FLA s. 67ZBB 14
19. Section 202B amended 16
20. Section 202E amended 16
21. Section 237 amended 17
22. Section 237A deleted 17
Part 3 -- Other amendments
23. Section 65 amended 18
24. Section 65A amended 18
25. Section 73 amended 19
26. Section 84 amended 19
27. Section 113 amended 20
28. Section 202I deleted 20
29. Section 205F amended 20
30. Section 205O amended 20
31. Section 205QA inserted 21
205QA. Procedure for enforcing bonds -- FLA
s. 70NECA 21
32. Section 211B replaced 22
211B. Appeal may be dismissed if no reasonable
prospect of success 22
33. Sections 215A and 215B inserted 23
215A. Oaths and affirmations 23
215B. Swearing of affidavits etc. 24
34. Section 244 amended 25
Part 4 -- Transitional provisions
35. Section 247 replaced 26
247. Transitional and savings 26
36. Schedule 2 Division 1 heading inserted 26
page ii
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Contents
Division 1 -- Provisions for repeal of Family Court
Act 1975
37. Schedule 2 clause 1 amended 26
38. Schedule 2 clause 2 amended 26
39. Schedule 2 Division 2 inserted 27
Division 2 -- Provisions for Family Court
Amendment (Family Violence and Other
Measures) Act 2012
11. Application of amendments relating to
family violence 27
12. Application of other amendments 27
13. Transitional regulations 29
page iii
Western Australia
LEGISLATIVE COUNCIL
Family Court Amendment (Family Violence and
Other Measures) Bill 2012
A Bill for
An Act to amend the Family Court Act 1997.
The Parliament of Western Australia enacts as follows:
page 1
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Family Court Amendment (Family Violence and
4 Other Measures) Act 2012.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent;
9 (b) the rest of the Act -- on the day after that day.
10 3. Act amended
11 This Act amends the Family Court Act 1997.
page 2
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 4
1 Part 2 -- Amendments relating to family violence
2 4. Section 5 amended
3 (1) In section 5(1) delete the definitions of:
4 abuse
5 family violence
6 member of the family
7 (2) In section 5(1) insert in alphabetical order:
8
9 (FLA s. 4(1))
10 abuse, in relation to a child, means --
11 (a) an assault, including a sexual assault, of the
12 child; or
13 (b) a person (the first person) involving the child
14 in a sexual activity with the first person or
15 another person in which the child is used,
16 directly or indirectly, as a sexual object by the
17 first person or the other person, and where there
18 is unequal power in the relationship between
19 the child and the first person; or
20 (c) causing the child to suffer serious
21 psychological harm, including (but not limited
22 to) when that harm is caused by the child being
23 subjected to, or exposed to, family violence; or
24 (d) serious neglect of the child;
25 (FLA s. 4(1))
26 exposed to family violence, in relation to a child, has
27 the meaning given in section 9A(3);
28 (FLA s. 4(1))
29 family violence has the meaning given in
30 section 9A(1);
page 3
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 5
1 (FLA s. 4(1))
2 member of the family has the meaning given in
3 section 6;
4
5 5. Section 6 amended
6 In section 6:
7 (a) delete paragraph (a) and insert:
8
9 (a) the definition of step-parent in section 5(1);
10 and
11 (ba) section 9A; and
12
13 (b) delete paragraph (c) and insert:
14
15 (c) sections 66F, 66HA and 66HB,
16
17 6. Section 9A inserted
18 At the end of Part 1 insert:
19
20 9A. Meaning of "family violence" etc. -- FLA s. 4AB
21 (1) For the purposes of this Act, family violence means
22 violent, threatening or other behaviour by a person that
23 coerces or controls a member of the person's family
24 (the family member), or causes the family member to
25 be fearful.
26 (2) Examples of behaviour that may constitute family
27 violence include (but are not limited to) --
28 (a) an assault; or
29 (b) a sexual assault or other sexually abusive
30 behaviour; or
31 (c) stalking; or
page 4
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 6
1 (d) repeated derogatory taunts; or
2 (e) intentionally damaging or destroying property;
3 or
4 (f) intentionally causing death or injury to an
5 animal; or
6 (g) unreasonably denying the family member the
7 financial autonomy that he or she would
8 otherwise have had; or
9 (h) unreasonably withholding financial support
10 needed to meet the reasonable living expenses
11 of the family member, or his or her child, at a
12 time when the family member is entirely or
13 predominantly dependent on the person for
14 financial support; or
15 (i) preventing the family member from making or
16 keeping connections with his or her family,
17 friends or culture; or
18 (j) unlawfully depriving the family member, or
19 any member of the family member's family, of
20 his or her liberty.
21 (3) For the purposes of this Act, a child is exposed to
22 family violence if the child sees or hears family
23 violence or otherwise experiences the effects of family
24 violence.
25 (4) Examples of situations that may constitute a child
26 being exposed to family violence include (but are not
27 limited to) the child --
28 (a) overhearing threats of death or personal injury
29 by a member of the child's family towards
30 another member of the child's family; or
31 (b) seeing or hearing an assault of a member of the
32 child's family by another member of the child's
33 family; or
page 5
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 7
1 (c) comforting or providing assistance to a member
2 of the child's family who has been assaulted by
3 another member of the child's family; or
4 (d) cleaning up a site after a member of the child's
5 family has intentionally damaged property of
6 another member of the child's family; or
7 (e) being present when police or ambulance
8 officers attend an incident involving the assault
9 of a member of the child's family by another
10 member of the child's family.
11
12 7. Section 37 amended
13 (1) In section 37(1)(d) delete "safety" and insert:
14
15 protection
16
17 (2) In section 37:
18 (a) after each of subsection (1)(a) to (c) insert:
19
20 and
21
22 (b) after subsection (2)(a) insert:
23
24 or
25
26 8. Section 66 amended
27 After section 66(3) insert:
28
29 (4) An additional object of this Part is to give effect to the
30 Convention on the Rights of the Child done at New
31 York on 20 November 1989.
32
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Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 9
1 9. Part 5 Division 1 Subdivision 2 heading replaced
2 Delete the heading to Part 5 Division 1 Subdivision 2 and insert:
3
4 Subdivision 2 -- Best interests of the child:
5 court proceedings
6
7 10. Section 66C amended
8 (1) After section 66C(2) insert:
9
10 (3A) In applying the considerations set out in subsection (2),
11 the court is to give greater weight to the consideration
12 set out in subsection (2)(b).
13
14 (2) In section 66C(3):
15 (a) delete paragraph (c) and insert:
16
17 (c) the extent to which each of the child's parents
18 has taken, or failed to take, the opportunity --
19 (i) to participate in making decisions about
20 major long-term issues in relation to the
21 child; and
22 (ii) to spend time with the child; and
23 (iii) to communicate with the child;
24 and
25 (da) the extent to which each of the child's parents
26 has fulfilled, or failed to fulfil, the parent's
27 obligations to maintain the child; and
28
page 7
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 11
1 (b) delete paragraph (k) and insert:
2
3 (k) if a family violence order applies, or has
4 applied, to the child or a member of the child's
5 family -- any relevant inferences that can be
6 drawn from the order, taking into account the
7 following --
8 (i) the nature of the order;
9 (ii) the circumstances in which the order
10 was made;
11 (iii) any evidence admitted in proceedings
12 for the order;
13 (iv) any findings made by the court in, or in
14 proceedings for, the order;
15 (v) any other relevant matter;
16 and
17
18 (3) Delete section 66C(4) and (5).
19 11. Sections 66HA and 66HB inserted
20 At the end of Part 5 Division 1 Subdivision 2 insert:
21
22 66HA. Informing court of care arrangements under child
23 welfare laws -- FLA s. 60CH
24 (1) If a party to the proceedings is aware that the child, or
25 another child who is a member of the child's family, is
26 under the care (however described) of a person under a
27 child welfare law, that party must inform the court of
28 the matter.
29 (2) If a person who is not a party to the proceedings is
30 aware that the child, or another child who is a member
31 of the child's family, is under the care (however
page 8
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 11
1 described) of a person under a child welfare law, that
2 person may inform the court of the matter.
3 (3) Failure to inform the court of the matter does not affect
4 the validity of any order made by the court.
5 (4) However, subsection (3) does not limit the operation of
6 section 202.
7 66HB. Informing court of notifications to, and
8 investigations by, prescribed government
9 agencies -- FLA s. 60CI
10 (1) In this section --
11 prescribed government agency means an agency that is
12 a prescribed government agency for the purposes of
13 section 202K.
14 (2) If --
15 (a) a party to the proceedings is aware that the
16 child, or another child who is a member of the
17 child's family, is or has been the subject of --
18 (i) a notification or report (however
19 described) to a prescribed government
20 agency; or
21 (ii) an investigation, inquiry or assessment
22 (however described) by a prescribed
23 government agency;
24 and
25 (b) the notification, report, investigation, inquiry or
26 assessment relates to abuse, or an allegation,
27 suspicion or risk of abuse,
28 that party must inform the court of the matter.
29 (3) If --
30 (a) a person who is not a party to the proceedings
31 is aware that the child, or another child who is a
page 9
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 12
1 member of the child's family, is or has been the
2 subject of --
3 (i) a notification or report (however
4 described) to a prescribed government
5 agency; or
6 (ii) an investigation, inquiry or assessment
7 (however described) by a prescribed
8 government agency;
9 and
10 (b) the notification, report, investigation, inquiry or
11 assessment relates to abuse, or an allegation,
12 suspicion or risk of abuse,
13 that person may inform the court of the matter.
14 (4) Failure to inform the court of the matter does not affect
15 the validity of any order made by the court.
16
17 12. Part 5 Division 1 Subdivision 3A inserted
18 Before Part 5 Division 1 Subdivision 3 insert:
19
20 Subdivision 3A -- Best interests of the child:
21 adviser's obligations
22 66HC. Adviser's obligations in relation to best interests of
23 child -- FLA s. 60D
24 (1) In this section --
25 adviser means a person who is --
26 (a) a legal practitioner; or
27 (b) a family counsellor; or
28 (c) a family dispute resolution practitioner; or
29 (d) a family consultant.
page 10
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 13
1 (2) If an adviser gives advice or assistance to a person
2 about matters concerning a child and this Part, the
3 adviser must --
4 (a) inform the person that the person should regard
5 the best interests of the child as the paramount
6 consideration; and
7 (b) encourage the person to act on the basis that the
8 child's bests interests are best met --
9 (i) by the child having a meaningful
10 relationship with both of the child's
11 parents; and
12 (ii) by the child being protected from
13 physical or psychological harm from
14 being subjected to, or exposed to, abuse,
15 neglect or family violence; and
16 (iii) in applying the considerations set out in
17 subparagraphs (i) and (ii) -- by giving
18 greater weight to the consideration set
19 out in subparagraph (ii).
20
21 13. Section 66J deleted
22 Delete section 66J.
23 14. Section 78A amended
24 (1) Before section 78A(1) insert:
25
26 (1A) The obligations of an adviser under this section are in
27 addition to the adviser's obligations under
28 section 66HC.
29
30 (2) Delete section 78A(2)(c).
page 11
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 15
1 15. Section 133 amended
2 (1) In section 133(c) after "child abuse" insert:
3
4 and family violence
5
6 (2) In section 133 after each of paragraphs (a) and (b) insert:
7
8 and
9
10 16. Part 5 Division 8 Subdivision 4 heading replaced
11 Delete the heading to Part 5 Division 8 Subdivision 4 and insert:
12
13 Subdivision 4 -- Allegations of child abuse and
14 family violence
15
16 17. Section 159 amended
17 (1) Before section 159(1) insert:
18
19 (1A) In this section --
20 interested person, in proceedings under this Act,
21 means --
22 (a) a party to the proceedings; or
23 (b) an independent children's lawyer who
24 represents the interests of a child in the
25 proceedings; or
26 (c) any other person prescribed by the regulations
27 for the purposes of this paragraph;
28 prescribed form means the form approved by the Chief
29 Judge of the Court for the purposes of this section.
30
page 12
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 18
1 (2) In section 159(1):
2 (a) delete "a party to" and insert:
3
4 an interested person in
5
6 (b) delete "the party" and insert:
7
8 the interested person
9
10 Note: The heading to amended section 159 is to read:
11 Where interested person in proceedings makes allegation of child
12 abuse -- FLA s. 67Z
13 18. Sections 162A and 162B inserted
14 At the end of Part 5 Division 8 Subdivision 4 insert:
15
16 162A. Where interested person makes allegation of family
17 violence -- FLA s. 67ZBA
18 (1) In this section --
19 interested person, in proceedings for an order under
20 this Part in relation to a child, means --
21 (a) a party to the proceedings; or
22 (b) an independent children's lawyer who
23 represents the interests of the child in the
24 proceedings; or
25 (c) any other person prescribed by the regulations
26 for the purposes of this paragraph;
27 prescribed form means the form approved by the Chief
28 Judge of the Court for the purposes of this section.
29 (2) This section applies if an interested person in
30 proceedings for an order under this Part in relation to a
31 child alleges, as a consideration that is relevant to
page 13
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 18
1 whether the court should make or refuse to make the
2 order, that --
3 (a) there has been family violence by one of the
4 parties to the proceedings; or
5 (b) there is a risk of family violence by one of the
6 parties to the proceedings.
7 (3) The interested person must file a notice in the
8 prescribed form in the court hearing the proceedings,
9 and serve a true copy of the notice upon the party
10 referred to in subsection (2)(a) or (b).
11 (4) If the alleged family violence (or risk of family
12 violence) is abuse of a child (or a risk of abuse of a
13 child) --
14 (a) the interested person making the allegation
15 must either file and serve a notice under
16 subsection (3) or under section 159(1) (but does
17 not have to file and serve a notice under both
18 those provisions); and
19 (b) if the notice is filed under subsection (3), the
20 registrar must deal with the notice as if it had
21 been filed under section 159(1).
22 162B. Court to take prompt action in relation to
23 allegations of child abuse or family violence -- FLA
24 s. 67ZBB
25 (1) This section applies if --
26 (a) a notice is filed under section 159(1)
27 or 162A(3) in proceedings for an order under
28 this Part in relation to a child; and
29 (b) the notice alleges, as a consideration that is
30 relevant to whether the court should make or
31 refuse to make the order, that --
32 (i) there has been abuse of the child by one
33 of the parties to the proceedings; or
page 14
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 18
1 (ii) there would be a risk of abuse of the
2 child if there were to be a delay in the
3 proceedings; or
4 (iii) there has been family violence by one of
5 the parties to the proceedings; or
6 (iv) there is a risk of family violence by one
7 of the parties to the proceedings.
8 (2) The court must --
9 (a) consider what interim or procedural orders (if
10 any) should be made --
11 (i) to enable appropriate evidence about the
12 allegation to be obtained as
13 expeditiously as possible; and
14 (ii) to protect the child or any of the parties
15 to the proceedings;
16 and
17 (b) make such orders of that kind as the court
18 considers appropriate; and
19 (c) deal with the issues raised by the allegation as
20 expeditiously as possible.
21 (3) The court must take the action required by
22 subsection (2)(a) and (b) --
23 (a) as soon as practicable after the notice is filed;
24 and
25 (b) if it is appropriate having regard to the
26 circumstances of the case -- within 8 weeks
27 after the notice is filed.
28 (4) Without limiting subsection (2)(a)(i), the court must
29 consider whether orders should be made under
30 section 202K to obtain documents or information from
31 prescribed government agencies in relation to the
32 allegation.
page 15
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 2 Amendments relating to family violence
s. 19
1 (5) Without limiting subsection (2)(a)(ii), the court must
2 consider whether orders should be made, or an
3 injunction granted, under section 235.
4 (6) A failure to comply with a provision of this section
5 does not affect the validity of any order made in the
6 proceedings for the order.
7
8 19. Section 202B amended
9 Delete section 202B(6)(a) and insert:
10
11 (a) the child concerned from being subjected to, or
12 exposed to, abuse, neglect or family violence;
13 and
14
15 20. Section 202E amended
16 Before section 202E(1)(a) insert:
17
18 (aa) ask each party to the proceedings --
19 (i) whether the party considers that the
20 child concerned has been, or is at risk of
21 being, subjected to, or exposed to,
22 abuse, neglect or family violence; and
23 (ii) whether the party considers that he or
24 she, or another party to the proceedings,
25 has been, or is at risk of being, subjected
26 to family violence;
27 and
28
page 16
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Amendments relating to family violence Part 2
s. 21
1 21. Section 237 amended
2 (1) In section 237(1) delete "205SB, 237A" and insert:
3
4 205SB
5
6 (2) In section 237(2) delete "(5) and (6)" and insert:
7
8 (5), (6A) and (6)
9
10 (3) After section 237(5) insert:
11
12 (6A) If --
13 (a) under section 207, the CEO intervenes in
14 proceedings; and
15 (b) the CEO acts in good faith in relation to the
16 proceedings,
17 the court must not, because of the intervention, make
18 an order under subsection (2) of this section against the
19 CEO, the Department (as defined by the Children and
20 Community Services Act 2004 section 3) or the State.
21
22 (4) In section 237(3) after each of paragraphs (a) to (e) insert:
23
24 and
25
26 22. Section 237A deleted
27 Delete section 237A.
page 17
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 3 Other amendments
s. 23
1 Part 3 -- Other amendments
2 23. Section 65 amended
3 Delete section 65(1) and insert:
4
5 (1) A court exercising jurisdiction in proceedings under
6 this Act may make either or both of the following kinds
7 of order --
8 (a) an order directing one or more parties to the
9 proceedings to attend an appointment (or a
10 series of appointments) with a family
11 consultant;
12 (b) an order directing one or more parties to the
13 proceedings to arrange for a child to attend an
14 appointment (or a series of appointments) with
15 a family consultant.
16
17 Note: The heading to amended section 65 is to read:
18 Court may order parties to attend, or arrange for child to attend,
19 appointments with family consultant -- FLA s. 11F
20 24. Section 65A amended
21 Delete section 65A(2) and insert:
22
23 (2A) If --
24 (a) a person fails to comply with an order under
25 section 65 that he or she arrange for a child to
26 attend an appointment with a family consultant;
27 or
28 (b) a child fails to attend an appointment with a
29 family consultant as arranged in compliance
30 with an order under section 65,
31 the consultant must report the failure to the court.
page 18
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Other amendments Part 3
s. 25
1 (2) On receiving a report under subsection (1) or (2A), the
2 court may make any further orders it considers
3 appropriate.
4
5 25. Section 73 amended
6 (1) In section 73(5) delete "a party to proceedings, or the child,
7 attend" and insert:
8
9 one or more parties to the proceedings attend, or arrange for the
10 child to attend,
11
12 (2) Delete section 73(6) and insert:
13
14 (6) If --
15 (a) a person fails to comply with an order or
16 direction under subsection (5); or
17 (b) a child fails to attend an appointment with a
18 family consultant as arranged in compliance
19 with an order or direction under subsection (5),
20 the family consultant must report the failure to the
21 court.
22
23 26. Section 84 amended
24 After section 84(1) insert:
25
26 (1A) However, a declaration or order under Division 11
27 Subdivision 4 is not a parenting order.
28
page 19
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 3 Other amendments
s. 27
1 27. Section 113 amended
2 (1) In section 113:
3 (a) in paragraph (e) delete "(Subdivision 6)." and insert:
4
5 (Subdivision 6); and
6
7 (b) after paragraph (e) insert:
8
9 (f) deals with the recovery of amounts paid under
10 maintenance orders (Subdivision 7).
11
12 (2) In section 113 after each of paragraphs (a) to (d) insert:
13
14 and
15
16 28. Section 202I deleted
17 Delete section 202I.
18 29. Section 205F amended
19 Before section 205F(3)(a) insert:
20
21 (aa) section 205O(1)(ea); or
22 (ab) section 205QA(3)(a); or
23
24 30. Section 205O amended
25 After section 205O(1)(d) insert:
26
27 (ea) if the person who committed the current
28 contravention fails, without reasonable excuse,
29 to enter into a bond as required by an order
page 20
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Other amendments Part 3
s. 31
1 under paragraph (d), impose a fine not
2 exceeding $1 100 on the person;
3
4 31. Section 205QA inserted
5 After section 205P insert:
6
7 205QA. Procedure for enforcing bonds -- FLA s. 70NECA
8 (1) If a court has made an order under section 205O(1)(d)
9 requiring a person to enter into a bond in accordance
10 with section 205P, the following provisions have
11 effect.
12 (2) If the court (whether or not constituted by the judge or
13 magistrate who required the bond to be entered into in
14 accordance with section 205P) is satisfied that the
15 person has, without reasonable excuse, failed to
16 comply with the bond, the court may take action under
17 subsection (3).
18 (3) The court may --
19 (a) without prejudice to the continuance of the
20 bond entered into in accordance with
21 section 205P, impose a fine not exceeding
22 $1 100 on the person; or
23 (b) revoke the bond entered into in accordance with
24 section 205P and, subject to subsection (4), deal
25 with the person, for the contravention in respect
26 of which the bond was entered into, in any
27 manner in which the person could have been
28 dealt with for the contravention if --
29 (i) the bond had not been entered into; and
30 (ii) the person was before the court under
31 section 205O in respect of the
32 contravention.
page 21
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 3 Other amendments
s. 32
1 (4) In dealing with the person as mentioned in
2 subsection (3)(b), the court must, in addition to any
3 other matters that it considers should be taken into
4 account, take into account --
5 (a) the fact that the bond was entered into; and
6 (b) anything done pursuant to the bond; and
7 (c) any fine imposed, and any other order made,
8 for or in respect of the contravention.
9
10 32. Section 211B replaced
11 Delete section 211B and insert:
12
13 211B. Appeal may be dismissed if no reasonable prospect
14 of success
15 (1) If --
16 (a) an appeal has been instituted in a court under
17 this Part; and
18 (b) having regard to the grounds of appeal as
19 disclosed in the notice of appeal, it appears to
20 the court that the appeal has no reasonable
21 prospect of success (whether generally or in
22 relation to a particular ground of appeal),
23 the court may, at any time, order that the proceedings
24 on the appeal be dismissed (either generally or in
25 relation to that ground).
26 (2) This section does not limit any powers that the court
27 has apart from this section.
28
page 22
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Other amendments Part 3
s. 33
1 33. Sections 215A and 215B inserted
2 After section 214A insert:
3
4 215A. Oaths and affirmations
5 (1) The executive manager may, in writing, authorise --
6 (a) a registrar; or
7 (b) a member of the staff of the Court or the
8 Magistrates Court,
9 to administer oaths and affirmations for the purposes of
10 the Court and the Magistrates Court.
11 (2) The following persons are authorised to administer
12 oaths and affirmations for the purposes of the Court or
13 the Magistrates Court --
14 (a) a person who is authorised to administer oaths
15 and affirmations in that court under the Oaths,
16 Affidavits and Statutory Declarations Act 2005;
17 (b) a person authorised under subsection (1).
18 (3) This section does not limit the Oaths, Affidavits and
19 Statutory Declarations Act 2005.
20 (4) This section applies to the Magistrates Court
21 exercising --
22 (a) its federal jurisdiction under section 38; or
23 (b) its non-federal jurisdictions under section 39; or
24 (c) any other jurisdiction under a law of the
25 Commonwealth, where that law confers
26 jurisdiction on both the Court and the
27 Magistrates Court.
page 23
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 3 Other amendments
s. 33
1 215B. Swearing of affidavits etc.
2 (1) An affidavit to be used in a proceeding in the Court or
3 the Magistrates Court may be sworn or affirmed in
4 Australia before --
5 (a) a person before whom that affidavit may be
6 sworn or affirmed under the Oaths, Affidavits
7 and Statutory Declarations Act 2005; or
8 (b) a person authorised under section 215A(1); or
9 (c) a person to whom the Family Law Act
10 section 98AB(1) applies.
11 (2) An affidavit to be used in a proceeding in the Court or
12 the Magistrates Court may be sworn or affirmed
13 outside Australia before --
14 (a) a person before whom that affidavit may be
15 sworn or affirmed under the Oaths, Affidavits
16 and Statutory Declarations Act 2005; or
17 (b) a person to whom the Family Law Act
18 section 98AB(2) applies.
19 (3) This section does not limit the Oaths, Affidavits and
20 Statutory Declarations Act 2005.
21 (4) This section applies to the Magistrates Court
22 exercising --
23 (a) its federal jurisdiction under section 38; or
24 (b) its non-federal jurisdictions under section 39; or
25 (c) any other jurisdiction under a law of the
26 Commonwealth, where that law confers
27 jurisdiction on both the Court and the
28 Magistrates Court.
29
page 24
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Other amendments Part 3
s. 34
1 34. Section 244 amended
2 (1) After section 244(3)(d) insert:
3
4 (ea) proceedings transferred to the Court under the
5 Bankruptcy Act 1966 (Commonwealth)
6 sections 35A and 35B; and
7
8 (2) After section 244(1)(a) insert:
9
10 and
11
page 25
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 4 Transitional provisions
s. 35
1 Part 4 -- Transitional provisions
2 35. Section 247 replaced
3 Delete section 247 and insert:
4
5 247. Transitional and savings
6 (1) Schedule 2 Division 1 has effect in relation to the
7 repeal effected by section 246.
8 (2) Schedule 2 Division 2 has effect in relation to the
9 amendments made by the Family Court Amendment
10 (Family Violence and Other Measures) Act 2012.
11
12 36. Schedule 2 Division 1 heading inserted
13 Before Schedule 2 clause 1 insert:
14
15 Division 1 -- Provisions for repeal of Family Court Act 1975
16
17 37. Schedule 2 clause 1 amended
18 In Schedule 2 clause 1 delete "Schedule," and insert:
19
20 Division,
21
22 38. Schedule 2 clause 2 amended
23 In Schedule 2 clause 2 delete "Schedule" and insert:
24
25 Division
26
page 26
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Transitional provisions Part 4
s. 39
1 39. Schedule 2 Division 2 inserted
2 At the end of Schedule 2 insert:
3
4 Division 2 -- Provisions for Family Court Amendment
5 (Family Violence and Other Measures) Act 2012
6 11. Application of amendments relating to family violence
7 (1) In this clause --
8 commencement means the commencement of the Family
9 Court Amendment (Family Violence and Other Measures)
10 Act 2012 Part 2;
11 old Act means this Act as in force immediately before
12 commencement.
13 (2) The amendments made by the Family Court Amendment
14 (Family Violence and Other Measures) Act 2012 sections 4
15 to 8, 10, 11 and 17 to 22 apply in relation to proceedings
16 instituted at or after commencement.
17 (3) The amendments made by the Family Court Amendment
18 (Family Violence and Other Measures) Act 2012 Part 2 do
19 not affect an order made under the old Act or a certificate
20 given under section 66H(7) of the old Act.
21 (4) The amendments made by the Family Court Amendment
22 (Family Violence and Other Measures) Act 2012 Part 2 are
23 taken not to constitute changed circumstances that would
24 justify the making of an order to discharge or vary, or to
25 suspend or revive the operation of, some or all of a
26 parenting order that was made before commencement.
27 12. Application of other amendments
28 (1) In this clause --
29 commencement means the commencement of the Family
30 Court Amendment (Family Violence and Other Measures)
31 Act 2012 Part 3;
page 27
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 4 Transitional provisions
s. 39
1 old Act means this Act as in force immediately before
2 commencement.
3 (2) An order or direction under section 65(1) or 73(5) of the old
4 Act, or an application for such an order or direction, has
5 effect after commencement as if it were an order or
6 direction, or an application for an order or direction, under
7 that section as in force after commencement.
8 (3) The amendment made by the Family Court Amendment
9 (Family Violence and Other Measures) Act 2012 section 26
10 applies in relation to orders under Part 5 Division 11
11 Subdivision 4, whether made before, at or after
12 commencement.
13 (4) The amendment made by the Family Court Amendment
14 (Family Violence and Other Measures) Act 2012 section 28
15 applies in relation to a court, after commencement, taking an
16 opinion expressed by a family consultant into account,
17 whether that opinion was expressed before, at or after
18 commencement.
19 (5) The amendment made by the Family Court Amendment
20 (Family Violence and Other Measures) Act 2012 section 30
21 applies in relation to orders requiring persons to enter into
22 bonds, whether made before, at or after commencement.
23 (6) The amendment made by the Family Court Amendment
24 (Family Violence and Other Measures) Act 2012 section 31
25 applies in relation to bonds entered into whether before, at
26 or after commencement.
27 (7) Subject to subclause (8), the amendment made by the
28 Family Court Amendment (Family Violence and Other
29 Measures) Act 2012 section 32 applies in relation to appeals
30 whether instituted before, at or after commencement.
31 (8) The amendment made by the Family Court Amendment
32 (Family Violence and Other Measures) Act 2012 section 32
33 does not affect the dismissal or stay of proceedings on an
34 appeal before commencement.
page 28
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Transitional provisions Part 4
s. 39
1 (9) The amendment made by the Family Court Amendment
2 (Family Violence and Other Measures) Act 2012 section 34
3 applies in relation to proceedings transferred to the Court
4 whether before, at or after commencement.
5 13. Transitional regulations
6 (1) If this Division does not provide sufficiently for a matter or
7 issue of a transitional nature that arises as a result of a repeal
8 or amendment made under the Family Court Amendment
9 (Family Violence and Other Measures) Act 2012, the
10 Governor may make regulations (the transitional
11 regulations) prescribing all matters that are required,
12 necessary or convenient to be prescribed for the matter or
13 issue.
14 (2) The transitional regulations may provide that specified
15 provisions of this Act --
16 (a) do not apply; or
17 (b) apply with specified modifications,
18 to or in relation to any matter.
19 (3) If the transitional regulations provide that a specified state
20 of affairs is to be taken to have existed, or not to have
21 existed, on and from a day that is earlier than the day on
22 which the transitional regulations are published in the
23 Gazette but not earlier than the commencement of this
24 clause, the transitional regulations have effect according to
25 their terms.
26 (4) In subclauses (2) and (3) --
27 specified means specified or described in the transitional
28 regulations.
29 (5) If the transitional regulations contain a provision referred to
30 in subclause (3), the provision does not operate so as --
31 (a) to affect in a manner prejudicial to any person
32 (other than the State), the rights of that person
33 existing before the day of publication of those
34 regulations; or
page 29
Family Court Amendment (Family Violence and Other Measures) Bill 2012
Part 4 Transitional provisions
s. 39
1 (b) to impose liabilities on any person (other than the
2 State or an authority of the State) in respect of
3 anything done or omitted to be done before the day
4 of publication of those regulations.
5
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