Act No. 7 of 2018. Introduced by /u/tobycool2001_1. Assented to 2018-09-03.
2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Family Law Act (Miscellaneous)
Amendment Bill 2018
No. , 2018
(Attorney-General)
A Bill for an Act to repeal the Family Law Act
1975, and for related purposes.
Contents
1 Short title ........................................................................................... 1
2 Commencement ................................................................................. 1
3 Schedules........................................................................................... 2
Schedule 1—Amendment 3
Family Law Act 1975 3
Schedule 2—Cross Examination Amendments 5
Family Law Act 1975 5
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1 A Bill for an Act to repeal the Family Law Act
2 1975, and for related purposes.
3 The Parliament of Australia enacts:
4 1 Short title
5 This Act is the Family Law Act (Miscellaneous) Amendment Act
6 2018.
7 2 Commencement
8 (1) Each provision of this Act specified in column 1 of the table commences, or
9 is taken to have commenced, in accordance with column 2 of the table. Any
10 other statement in column 2 has effect according to its terms.
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(1).docx
(2) Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. Schedule 1 1 September 2018 1 September
2018
2. Schedule 2 1 September 2018 1 September
2018
1 Note: This table relates only to the provisions of this Act as originally
2 enacted. It will not be amended to deal with any later amendments of
3 this Act.
4 (2) Any information in column 3 of the table is not part of this Act.
5 Information may be inserted in this column, or information in it
6 may be edited, in any published version of this Act.
7 3 Schedules
8 Legislation that is specified in a Schedule to this Act is amended or
9 repealed as set out in the applicable items in the Schedule
10 concerned, and any other item in a Schedule to this Act has effect
11 according to its terms.
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Schedule 1
1 Schedule 1—Miscellaneous Amendments
2
3 Family Law Act 1975
4 1 Subsection 4AB(2)(j)
5 After the subsection, add:
6 (k) abuse of process in the context of family law.
7 2 Subsection 60CG(2)
8 After the subsection, add:
9 (3) Upon an application being filed or the first instance of a matter
10 being heard, whichever occurs first:
11 a. a risk assessment must be completed using the family
12 violence risk assessment tool; and,
13 b. any matters and allegations relating to family violence must
14 be determined at the earliest practicable opportunity.
15 (4) In considering what order to make, the court must consider the
16 impact that family violence may have had on the contribution of
17 parties and may have on the future needs of parties.
18 3 Subsection 61DA
19 Repeal the subsection.
20 4 Subsection 61DB
21 Repeal the subsection.
22 5 Subsection 65D(1)
23 Omit “subject to sections 61DA (presumption of equal shared parental
24 responsibility when making parenting orders) and 65DAB (parenting
25 plans)”, substitute “subject to section 65DAB (parenting plans)”.
26 6 Subsection 65D(2)
27 Omit “subject to section 61DA (presumption of equal shared parental
28 responsibility when making parenting orders) and 65DAB (parenting
29 plans)”, substitute “subject to section 65DAB (parenting plans)”.
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Schedule 1
1
2 7 Subsection 61J(a)
3 Add:
4 Note 2: To avoid doubt, children’s courts, no matter how constituted, are able to
5 make family law orders under this Act in the same circumstances that are
6 currently applicable to courts of summary jurisdiction.
7 8 Subsection 61J(b)
8 Add:
9 Note 2: To avoid doubt, children’s courts, no matter how constituted, are able to
10 make family law orders under this Act in the same circumstances that are
11 currently applicable to courts of summary jurisdiction.
12 9 Subsection 38BAA(1)(f)
13 At the end of the subsection, add:
14 (g) judgements in interim proceedings in short form.
15 10 Subsection 68T(1)(b)
16 Repeal this subsection.
17 11 Subsection 68T(1)(a)
18 At the end of the subsection, add:
19 (b) the date specified in the order; and
20 (c) any further order of the court.
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Cross Examination Amendments Schedule 2
1 Schedule 2—Cross Examination Amendments
2
3 Family Law Act 1975
4 1 Subsection 69ZX(2)
5 At the end of the subsection, add:
6 (2A) If the court allows cross-examination of a particular witness who
7 is a party and section 102NA or 102NB applies to the cross-
8 examination, then the cross-examination must be conducted in
9 accordance with that section.
10
11 Note: Sections 102NA and 102NB deal with the cross-examination of a party where
12 there is an allegation of family violence.
13 2 Part XI
14 At the end of the part, add:
15 102NA Mandatory requirements in specific cases
16
17 When this section applies to cross-examination
18
19 (1) If, in proceedings under this Act:
20 a. a party (the examining party) intends to cross-examine
21 another party (the witness party); and
22 b. there is an allegation of family violence between the
23 examining party and the witness party; and
24 c. one or more of the following is satisfied:
25 i. either party has been convicted, or is charged
26 with, an offence involving violence, or a threat
27 of violence, to the other party;
28 ii. a family violence order (other than an interim
29 order) applies to both parties;
30 iii. an injunction under section 68B or 114 applies
31 to both 2 parties;
32 this section applies to the cross-examination.
33
34 Note 1: This section applies both in the case where the examining
35 party is the alleged perpetrator of the family violence and the
36 witness party is the alleged victim, and in the case where the
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Cross Examination Amendments Schedule 2
1 examining party is the alleged victim and the witness party is the
2 alleged perpetrator.
3
4 Note 2: To avoid doubt, a reference to a party in this section
5 includes a reference to a person who is a party because of the
6 operation of a provision of this Act (for example, sections 92 and
7 92A, which are about intervening parties). This section only applies
8 to an intervening party if the intervening party is involved in the
9 allegation of family violence, whether as the alleged perpetrator or
10 as the alleged victim.
11
12 Where examining party does not have legal representation
13
14 (2) If the examining party is not represented by a legal practitioner,
15 then:
16 a. the examining party must not cross-examine the
17 witness party personally; and
18 b. any questions that the examining party would like to
19 ask the witness party in cross-examination must instead
20 be asked by a person appointed by the court;
21 unless the court grants leave.
22
23 Note: Despite paragraph (2)(b), there are other laws that apply to
24 protect the witness party (for example, section 101 requires the
25 court to forbid the asking of offensive questions and section 41 of
26 the Evidence Act 1995 requires the court to disallow certain
27 questions, such as misleading questions).
28
29 (3) The court must not grant leave under subsection (2) unless:
30 a. both parties consent to the cross-examination by the
31 examining party of the witness party personally; and
32 b. the court has considered whether the cross-examination
33 will adversely affect the ability of:
34 i. the witness party to testify under the cross-
35 examination; and
36 ii. the examining party to conduct the cross-
37 examination; and
38 c. the court has considered whether the cross-examination
39 will 2 have a harmful impact on the party who is the
40 alleged victim 3 of the family violence.
41
42 Where examining party has legal representation
43
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Cross Examination Amendments Schedule 2
1 (4) If the examining party is represented by a legal practitioner,
2 then:
3 a. the examining party must not cross-examine the
4 witness party personally; and
5 b. the cross-examination must be conducted by the
6 examining party’s legal practitioner.
7 102NB Mandatory requirements in specific cases
8
9 When this section applies to cross-examination
10
11 (1) If, in proceedings under this Act:
12 a. a party (the examining party) intends to cross-examine
13 another party (the witness party); and
14 b. there is an allegation of family violence between the 16
15 examining party and the witness party; and
16 c. section 102NA does not apply to the cross-
17 examination;
18 then:
19 d. the court may, if it thinks it appropriate to do so, make
20 an order that the cross-examination must be conducted
21 in accordance with this section; and
22 e. if the court makes such an order, then this section
23 applies to the cross-examination.
24
25 Note 1: This section applies both in the case where the examining
26 party is the alleged perpetrator of the family violence and the
27 witness party is the alleged victim, and in the case where the
28 examining party is the alleged victim and the witness party is the
29 alleged perpetrator.
30
31 Note 2: To avoid doubt, a reference to a party in this section
32 includes a reference to a person who is a party because of the
33 operation of a provision of this Act (for example, sections 92 and
34 92A, which are about intervening parties). This section only applies
35 to an intervening party if the intervening party is involved in the
36 allegation of family violence, whether as the alleged perpetrator or
37 as the alleged victim.
38
39 Where examining party does not have legal representation
40
41 (2) If the examining party is not represented by a legal practitioner,
42 then:
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Cross Examination Amendments Schedule 2
1 a. the examining party must not cross-examine the
2 witness party personally; and
3 b. any questions that the examining party would like to
4 ask the witness party in cross-examination must instead
5 be asked by a person appointed by the court.
6
7 Note: Despite paragraph (2)(b), there are other laws that apply to
8 protect the witness party (for example, section 101 requires the
9 court to forbid the asking of offensive questions and section 41 of
10 the Evidence Act 1995 requires the court to disallow certain
11 questions, such as misleading questions). Where examining party
12
13 Where examining party has legal representation
14
15 (3) If the examining party is represented by a legal practitioner,
16 then:
17 a. the examining party must not cross-examine the
18 witness party personally; and
19 b. the cross-examination must be conducted by the
20 examining party’s legal practitioner
21
22 Court order
23
24 (4) The court may make an order under paragraph (1)(d):
25 a. on its own initiative; or
26 b. on the application of the examining party or the witness
27 party.
28
29 102NB Mandatory requirements in specific cases
30
31 The Minister must cause a review of the operation of this Division to be
32 commenced as soon as possible after:
33 a. the second anniversary of the commencement of this section; or
34 b. if, before the second anniversary, the regulations prescribe a
35 day that is after the second anniversary—that day.
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Cross Examination Amendments Schedule 2
1 3 Application of amendments
2 The amendments made by this Schedule apply to cross-examinations
3 occurring after the commencement of this Schedule in proceedings
4 instituted before or after that commencement.
5
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