These regulations are the Family Law Regulations 1984.
2 Authority
These Regulations are made under the Family Law Act 1975.
3 Definitions
Note: A number of expressions used in these Regulations are defined in the Act, including the following:
(a) applicable Rules of Court;
(b) Chief Executive Officer;
(c) Federal Circuit and Family Court of Australia;
(d) standard Rules of Court.
In these Regulations:
Act means the Family Law Act 1975.
application means an application to a court for the purpose of instituting proceedings under the Act or an application to a relevant Registrar made under these Regulations.
certified copy means a copy of an order, decree or document certified to be a true copy by an officer of the court that made the order or by which the order has been registered or confirmed or, in the case of an overseas order, by the Secretary.
Child Support Registrar means the Child Support Registrar mentioned in section 10 of the Child Support (Registration and Collection) Act 1988.
filed has the same meaning as in the applicable Rules of Court.
Hague Service Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965.
intervener means, in relation to proceedings, the Attorney‑General or any other person when intervening or applying to intervene under Part IX of the Act, or a child independently represented under subsection 68L(2) of the Act.
legal practitioner means a person enrolled as a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of the High Court of Australia, or of the Supreme Court of a State or Territory.
party to proceedings means an applicant, respondent or intervener in proceedings under the Act.
relevant Registrar of a court means:
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court of Australia Act 2021);
(ii) a Senior Registrar or Registrar of that court; or
(c) in relation to any other court—the principal officer of the court or any other appropriate officer or staff member of the court.
respondent means, in relation to proceedings, a party to the proceedings other than an applicant or an intervener.
sealed means sealed with the seal of the court or otherwise endorsed by an officer of the court.
Secretary means:
(a) the Secretary of the Attorney‑General’s Department; or
(b) a person authorised by the Secretary to perform a function in relation to which the expression is used.
Shared Parental Responsibility Act means the Family Law Amendment (Shared Parental Responsibility) Act 2006.
the former Regulations means Statutory Rules 1975 No. 210 as amended by the other Statutory Rules repealed by regulation 78.
Part II—General
4 Directions as to practice and procedure
(1) Where a court is satisfied in the circumstances of a particular case that:
(a) the provisions of the Act, these Regulations and the applicable Rules of Court do not make adequate provision for practice and procedure; or
(b) a difficulty arises or doubt exists as to practice and procedure;
the court may give such directions with respect to the practice and procedure to be followed in the case as the court considers necessary.
(3) Directions under this regulation shall be directed to providing a speedy and inexpensive hearing of the matters in issue between the parties and shall be consistent with these Regulations and the applicable Rules of Court.
5 Non‑compliance with Regulations
(1) Non‑compliance with these Regulations, or with a rule of practice or procedure in a court exercising jurisdiction under the Act, does not render proceedings in that court void unless the court so directs.
(2) In exercising its discretion under this regulation, the court shall have regard to the real merits of the case, the minimizing of expense, and whether any party to the proceedings has suffered injustice or has been prejudicially affected by non‑compliance with these Regulations.
(3) In relation to proceedings that commenced before the commencement of these Regulations, a reference, in subregulation (1), to these Regulations shall be read as including a reference to the former Regulations in their application to those proceedings.
6 Court or relevant Registrar may relieve from consequences of non‑compliance
(1) Subject to the Act and these Regulations:
(a) the court or a relevant Registrar may, at any time, upon such terms as the court or relevant Registrar thinks fit, relieve a party from the consequences of non‑compliance with these Regulations, a rule of practice and procedure of the court applicable to the proceedings or an order made by a relevant Registrar;
(b) the court may at any time, upon such terms as the court thinks fit, relieve a party from the consequences of non‑compliance with an order made by a court; and
(c) the court may, upon such terms as the court thinks fit, dispense with the need for compliance by a party with any provision of these Regulations.
(2) Where these Regulations fail to make provision on any matter, the court is empowered to give, and shall give, such directions as to practice and procedure as the court thinks fit.
(3) In relation to proceedings that commenced before the commencement of these Regulations, a reference, in subregulation (1) or (2), to these Regulations shall be read as including a reference to the former Regulations in their application to those proceedings.
7 Appointment of family consultants
For the purposes of paragraph 11B(c) of the Act, a family consultant may be appointed in writing by the Chief Executive Officer.
8 Prescribed information about non‑court based family services and court’s processes and services (Act s 12B)
For section 12B of the Act, the information that must be included in documents provided to persons under Part IIIA of the Act in relation to non‑court based family services and court’s processes and services is 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 separation or divorce; 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 separation and divorce.
8A Prescribed information about reconciliation (Act s 12C)
For section 12C of the Act, the information that must be included in documents provided to persons under Part IIIA of the Act is information about family counselling and family dispute resolution services.
Note: Section 13B of the Act allows a court to adjourn proceedings to give the parties the opportunity to consider a reconciliation. The parties will be advised in such circumstances to attend family counselling or other appropriate services.
8B Prescribed information about Part VII proceedings (Act s 12D)
For section 12D of the Act, the information that must be included in documents provided under Part IIIA of the Act to persons involved in Part VII proceedings, is information about family counselling services available to assist the parties and the child or children concerned in the proceedings to adjust to the consequences of orders made under Part VII of the Act.
Note: Part VII deals with issues including parental responsibility, parenting orders and maintenance orders in relation to a child or children concerned in the proceedings.
10A Proceedings for divorce order not to be instituted in a court of summary jurisdiction other than a prescribed court (Act s 44A)
For section 44A of the Act, proceedings for a divorce order in relation to a marriage may not be instituted in, or transferred to, a court of summary jurisdiction other than the following prescribed courts:
(a) a court constituted by a stipendiary magistrate who is the Principal Registrar, or a Registrar, of the Family Court of Western Australia;
(b) the Magistrates Court constituted by section 4 of the Magistrates Court Act 1930 of the Australian Capital Territory;
(c) the Court of Petty Sessions of Norfolk Island.
12A Prescribed pensions, allowances or benefits—subsection 4(1) of the Act
For the purposes of the definition of income tested pension, allowance or benefit in subsection 4(1) of the Act, each of the following pensions, allowances or benefits is prescribed:
(a) the following entitlements under the Veterans’ Entitlements Act 1986:
(i) a service pension within the meaning given by subsection 5Q(1) of that Act;
(ii) a veteran payment within the meaning given by subsection 5Q(1) of that Act;
(iii) income support supplement under Part IIIA of that Act;
(b) a social security pension or a social security benefit within the meaning given by subsection 23(1) of the Social Security Act 1991;
(c) a family tax benefit within the meaning given by subsection 3(1) of the A New Tax System (Family Assistance) Act 1999, the Part A rate of which is higher than the base rate under clause 4 of Schedule 1 to that Act;
(ca) so much of an allowance under the Aboriginal study assistance scheme, within the meaning given by subsection 23(1) of the Social Security Act 1991, as is means tested;
(d) the amount of a boarding allowance under the Assistance for Isolated Children Scheme, referred to in paragraph (a) of the definition of current special educational assistance scheme in subsection 3(1) of the Student Assistance Act 1973, that is greater than the non means tested amount of the allowance;
(e) a payment under the scheme known as the New Enterprise Incentive Scheme;
(ea) a payment under the program known as:
(i) the Self‑Employment Assistance program; or
(ii) if the Self‑Employment Assistance program is known by another name—that other name;
(f) an AUSTUDY benefit under Part 2 of the Student and Youth Assistance Act 1973 as in force immediately before 1 July 1998.
Note: For the purposes of subparagraph (ea)(ii), if the name of the Self‑Employment Assistance program changes, notice must be given of that change (see subsection 23(25) of the Social Security Act 1991).
12B Child welfare law—prescribed law of a State or Territory
(1) For the purposes of the definition of child welfare law in subsection 4(1) of the Act, each of the following classes of laws is prescribed, namely, any law of:
(a) the State of New South Wales;
(b) the State of Victoria;
(c) the State of Queensland;
(d) the State of Western Australia;
(e) the State of South Australia;
(f) the State of Tasmania;
(g) the Australian Capital Territory;
(h) the Northern Territory; or
(i) the Territory of Norfolk Island;
that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence.
(2) For the purposes of the definition of child welfare law in subsection 4(1) of the Act, each law specified in Column 2 of an item in Schedule 5, being a law of the State or Territory specified in Column 3 of that item, is prescribed.
12BA Child welfare officer—prescribed office of a State or Territory
For paragraph (a) of the definition of child welfare officer in subsection 4(1) of the Act, each of the following is a prescribed office:
(a) for New South Wales—the offices of:
(i) Minister for Family and Community Services, in relation to the Adoption Act 2000 (NSW) and the Children and Young Persons (Care and Protection) Act 1998 (NSW); and
(ii) Minister for Disability Services, in relation to the Guardianship Act 1987 (NSW);
(b) for Tasmania—the office of Secretary of the Department of Communities Tasmania;
(c) for Victoria—the office of Secretary of the Department of Health and Human Services;
(d) for Queensland—the office of the Chief Executive of the Department of Child Safety, Youth and Women;
(e) for the Australian Capital Territory—the offices of:
(i) Director‑General of the Community Services Directorate; and
(ii) Chief Psychiatrist appointed under subsection 196(1) of the Mental Health Act 2015 (ACT);
(f) for the Northern Territory—the office of the Minister for Territory Families.
12BB Family violence order—prescribed laws of State or Territory
For the purposes of the definition of family violence order in subsection 4(1) of the Act, each of the laws specified in column 2 of an item in Schedule 8 is a prescribed law of the State or Territory set out in column 3 of that item.
12BC De facto relationships—prescribed laws and relationships
For paragraph 4AA(2)(g) of the Act, the following are prescribed:
(a) a law mentioned in an item of the following table;
(b) a kind of relationship, mentioned in the item, that is or was registered under the law.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="3" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Registered relationships</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p><p class="TableHeading"><span>Law</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>Kind of relationship</span></p></td></tr></thead><tbody><tr><td style="width:7.22%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:33.88%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Relationships Register Act 2010</span><span> (NSW)</span></p></td><td style="width:58.9%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A relationship that may be registered in accordance with Part</span><span> </span><span>2 of that Act</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Relationships Act 2008</span><span> (Vic.)</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A registrable domestic relationship that may be registered in accordance with Part</span><span> </span><span>2.2 of that Act</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Civil Partnerships Act 2011</span><span> (Qld)</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A relationship that may be entered into in accordance with sections</span><span> </span><span>4 and 5 of that Act</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Relationships Register Act 2016</span><span> (SA)</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A relationship that may be registered in accordance with Part</span><span> </span><span>2 of that Act</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Relationships Act 2003</span><span> (Tas.)</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A significant relationship in relation to which a deed of relationship may be registered in accordance with Part</span><span> </span><span>2 of that Act</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>6</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Domestic Relationships Act 1994</span><span> (ACT)</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A civil partnership that may be entered into in accordance with sections</span><span> </span><span>37C and 37D of that Act</span></p></td></tr><tr><td style="width:7.22%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>7</span></p></td><td style="width:33.88%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Births, Deaths and Marriages Registration Act 1997</span><span> (ACT)</span></p></td><td style="width:58.9%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A civil union that must be registered under section</span><span> </span><span>32A of that Act</span></p></td></tr></tbody></table>
12C Artificial conception procedures: child of woman and other intended parent—prescribed laws
For subparagraph 60H(1)(b)(ii) of the Act, the laws mentioned in the following table are prescribed.
Item
Law
1
Status of Children Act 1996 (NSW)
2
Status of Children Act 1974 (Vic), sections 10A, 10B, 10C, 10D, 10E, 13 and 14
3
Status of Children Act 1978 (Qld), sections 17, 18, 19, 19C, 19D and 19E
4
Artificial Conception Act 1985 (WA)
5
Family Relationships Act 1975 (SA), sections 10C and 10EA
6
Status of Children Act 1974 (Tas), Part III
7
Parentage Act 2004 (ACT), section 11
8
Status of Children Act 1978 (NT), sections 5A, 5B, 5C, 5D, 5DA, 5E and 5F
12CA Artificial conception procedures: child of woman—prescribed laws
For paragraph 60H(2)(b) of the Act, the laws mentioned in the following table are prescribed.
Item
Law
1
Status of Children Act 1996 (NSW), section 14
1A
Status of Children Act 1974 (Vic), section 15 and 16
2
Status of Children Act 1978 (Qld), section 23
3
Artificial Conception Act 1985 (WA)
4
Family Relationships Act 1975 (SA), section 10C
5
Status of Children Act 1974 (Tas), Part III
6
Parentage Act 2004 (ACT), subsections 11(2) and (3)
7
Status of Children Act 1978 (NT), sections 5B, 5C and 5E
12CAA Children born under surrogacy arrangements—prescribed laws
For subsection 60HB(1) of the Act, the laws mentioned in the following table are prescribed.
Item
Law
1
Status of Children Act 1974 (Vic), section 22
2
Surrogacy Act 2010 (Qld), section 22
3
Surrogacy Act 2008 (WA), section 21
4
Parentage Act 2004 (ACT), section 26
5
Family Relationships Act 1975 (SA), section 10HB, as that section was in force immediately before it was repealed by the Surrogacy Act 2019 (SA)
5A
Surrogacy Act 2019 (SA), section 18
6
Surrogacy Act 2010 (NSW), section 12
7
Surrogacy Act 2012 (TAS), sections 16 and 22
8
Surrogacy Act 2022 (NT), section 34
12CAB Other circumstances in which court may hear application for Part VII order (Act s 60I(9)(f))
For paragraph 60I(9)(f) of the Act, the circumstance that an application has been made to the court for any other order in proceedings in which a certificate under subsection 60I(8) of the Act has been filed is specified.
12CB Commonwealth information orders—prescribed Departments and Commonwealth instrumentalities
For the purposes of paragraph 67N(3)(b) of the Act, the following Departments and Commonwealth instrumentalities are prescribed:
(a) Department of Jobs and Small Business;
(b) Department of Foreign Affairs and Trade;
(c) Department of Health;
(d) Department of Home Affairs;
(e) Services Australia;
(f) Department of Veterans’ Affairs;
(g) Australian Institute of Family Studies;
(h) Department of Education and Training;
(i) Department of Social Services.
12CBA Information sharing agencies
For the purposes of section 67ZBC of the Act, each of the following is prescribed as an information sharing agency:
(a) the police force or police service of a State or Territory;
(b) the part of the police force or police service of a State or Territory that has primary responsibility for firearms licensing;
(c) the part of the Australian Federal Police that provides police services in relation to the Australian Capital Territory;
(d) the part of the Australian Federal Police that has primary responsibility for firearms licensing in relation to the Australian Capital Territory;
(e) either:
(i) the Department of a State or Territory that has primary responsibility for child protection in that State or Territory; or
(ii) if, in a State or Territory, only a part of a Department has primary responsibility for child protection—that part of the Department.
12CBB Information sharing safeguards
(1) For the purposes of subsection 67ZBI(1) of the Act, this regulation prescribes information sharing safeguards that:
(a) an information sharing agency must have regard to when providing particulars, documents or information (the shared material) under an order made under section 67ZBD or 67ZBE, or under subsection 67ZBD(5) or 67ZBE(5), of the Act; and
(b) the court must have regard to when using particulars, documents or information (the shared material) provided by an information sharing agency under an order made under section 67ZBD or 67ZBE, or under subsection 67ZBD(5) or 67ZBE(5), of the Act.
Note: For the purposes of paragraph (b), use includes handle, store and access: see subsection 67ZBI(3) of the Act.
Extent material is to be provided, stored or used
(2) Particulars and documents are, and information is, only to be provided, and shared material is only to be stored and used, to the extent:
(a) that the material relates to a matter mentioned in subsection 67ZBD(2) or 67ZBE(2) of the Act; or
(b) required or authorised by a law of the Commonwealth, State or Territory or a court order (including an order made under section 67ZBD or 67ZBE of the Act).
Reasonable care to be taken to protect from physical and psychological harm
(3) The shared material is to be provided, stored and used in good faith and with reasonable care to protect persons who are involved in, or could be affected by, the provision, storage or use of the shared material from physical and psychological harm.
Prevention of improper provision, storage and use
(4) The shared material is to be provided, stored and used in a manner that prevents improper access to or disclosure of the shared material.
(5) Reasonable steps are to be taken to prevent the shared material being accessed by or disclosed to a person who poses, or potentially, poses a risk of subjecting or exposing any of the following to abuse, neglect or family violence:
(a) a party to the proceedings;
(b) a child to whom the proceedings relates;
(c) another person to whom the shared material relates;
unless the access or disclosure is in accordance with an order of a court.
(6) The shared material is not to be provided by or used by a person who has a personal relationship with or has any other actual or potential conflict of interest in relation to:
(a) a party to the proceedings; or
(b) a child to whom the proceedings relates; or
(c) another person to whom the shared material relates.
Correction of errors
(7) If the information sharing agency becomes aware that the shared material is incorrect, then as soon as possible:
(a) the information sharing agency is to notify the court of the correction; and
(b) subject to subregulation (10), the court is to correct its records accordingly.
Requests for documents or information not in possession or control
(8) If:
(a) an information sharing agency receives an order under section 67ZBD or 67ZBE of the Act relating to a matter; and
(b) the information sharing agency does not have in its possession or control any documents or information relating to the matter;
then, subject to subregulation (10), the information sharing agency is to destroy or redact its records relating to the order after responding to the order.
(9) If:
(a) a person requests access to the shared material or to material that is purported to be shared material provided to the court; and
(b) the court does not have such material in its possession or control;
then, subject to subregulation (10), the court is to destroy or redact its records relating to the request.
Record‑keeping obligations not affected
(10) Subregulations (7), (8) and (9) are subject to any record‑keeping obligations imposed on the information sharing agency or the court by a law of the Commonwealth, a State or a Territory or an order of a court.
12CC Registration of court decision (Act s 68R(6))
(1) For subsection 68R(6) of the Act, if, in relation to family violence proceedings before a court, the court:
(a) makes or varies a family violence order (whether or not by interim order); and
(b) revives, varies, discharges or suspends an order, injunction or arrangement mentioned in subsection 68R(1) of the Act;
the relevant Registrar of the court must send a sealed copy of the decision mentioned in paragraph (b) to the relevant Registrar of the court that made the order, injunction or arrangement so revived, varied, discharged or suspended, as soon as practicable.
(2) On receiving the sealed copy of the decision, the relevant Registrar must register the decision by:
(a) filing the sealed copy; and
(b) noting on the sealed copy the fact and date of registration.
Note: For the definition of family violence order, see subsection 4(1) of the Act and regulation 12BB.
12CE Evidence relating to professional confidential relationship privilege—prescribed laws
For paragraph 69ZX(4)(b) of the Act, each law mentioned in an item in Schedule 9A, being a law of the State or Territory mentioned in the item, is prescribed.
12D Registration of State child orders—prescribed States
For the purposes of section 70C of the Act, each of the following States and Territories is a prescribed State:
(a) the State of New South Wales;
(b) the State of Victoria;
(ba) the State of Queensland;
(bb) the State of Western Australia;
(c) the State of South Australia;
(d) the State of Tasmania;
(e) the Australian Capital Territory;
(f) the Northern Territory;
(g) the Territory of Norfolk Island.
13 Authentication of consent in writing
For subparagraphs 65Y(1)(c)(i), 65YA(1)(b)(i), 65Z(1)(c)(i), 65ZAA(1)(b)(i), 65ZA(1)(g)(i) and 65ZB(1)(g)(i) of the Act, a consent in writing must be authenticated by a person mentioned in section 8 of the Statutory Declarations Act 1959 endorsing on the consent a statement that:
(a) the person is satisfied about the identity of the person signing the consent; and
(b) the consent was signed in the person’s presence.
14 Meaning of prescribed overseas jurisdiction
For the purposes of the definition of prescribed overseas jurisdiction in subsection 4(1) of the Act:
(a) each country or part of a country, set out in column 2 of an item in Schedule 1A is declared to be a prescribed overseas jurisdiction for the purposes of:
(i) subsection 4(1) of the Act, in relation to the definition of overseas child order; and
(ii) sections 70M and 70N of the Act; and
(b) each country, or part of a country, set out in Schedule 2 as a reciprocating jurisdiction is declared to be a prescribed overseas jurisdiction for the purposes of:
(i) subsection 4(1) of the Act, in relation to the definition of overseas maintenance agreement; and
(ii) paragraph 89(b) of the Act.
14A Prescribed maximum period—sentence or order (Act s 70NFC(6), 112AG(6))
For the definitions of maximum period in subsections 70NFC(6) and 112AG(6) of the Act, 200 hours is prescribed in relation to each State and Territory.
15 Institution etc of proceedings by persons holding certain offices
(1) For the purposes of sections 69D and 89A and paragraph 125(1)(f) of the Act, each of the following offices under a law of a State or of a Territory is specified:
(a) Collector of Maintenance;
(b) Deputy Collector of Maintenance;
(c) Assistant Collector of Maintenance.
(2) A person for the time being holding an office referred to in subregulation (1) is authorized, in his or her discretion, to institute, continue or prosecute proceedings with respect to the maintenance of a party to a marriage or of a child, on behalf of that party or child.
(3) For the purposes of paragraph 125(1)(f) of the Act, each person for the time being holding an office referred to in subregulation (1), and each officer of a court of summary jurisdiction of a State or Territory, is a person entitled, in his or her discretion, to institute, continue or prosecute proceedings, on behalf of the person entitled to moneys payable under child maintenance order under Part VII of the Act, or a maintenance order under Part VIII of the Act, for the purpose of enforcing payment of those moneys.
15AA Third party expenses (Act s 90AJ)
(1) For subsection 90AJ(4) of the Act, this regulation provides for matters relating to the expenses of a third party in relation to a marriage in situations where the court has not made an order under subsection 90AJ(2) in relation to those expenses.
(2) A third party in relation to a marriage may charge reasonable fees to cover the reasonable expenses of the third party incurred as a necessary result of an order made or an injunction granted, in accordance with Part VIIIAA of the Act, in relation to the marriage.
(3) Without limiting subregulation (2), the fees may cover the reasonable expenses incurred by the third party in complying with the order or injunction.
Note: Examples: Expenses incurred for any of the following matters could be covered in the fees charged by the third party:
legal and registration fees
valuation fees
government charges and duties
searching, obtaining and producing documents
postage, delivery, transport or other transmission of documents
communications with the parties to the marriage or another person.
(4) Each of the parties to the marriage is separately liable to pay to the third party half of the total amount of the fees charged.
(5) Jurisdiction is conferred on a court having jurisdiction under the Act:
(a) to decide whether fees charged by a third party under subregulation (2) are reasonable; and
(b) to make an order in relation to the collection or recovery of such reasonable fees.
15AB De facto relationships—prescribed laws
For paragraph 90SB(d) of the Act, the laws mentioned in the following table are prescribed.
Item
Law
1
Relationships Register Act 2010 (NSW)
2
Relationships Act 2008 (Vic.)
3
Civil Partnerships Act 2011 (Qld)
4
Relationships Register Act 2016 (SA)
5
Relationships Act 2003 (Tas.)
6
Domestic Relationships Act 1994 (ACT)
7
Births, Deaths and Marriages Registration Act 1997 (ACT)
17 Registration of decrees
(1) A decree (other than a divorce order or a decree of nullity of marriage) may be registered in any court having jurisdiction under the Act by filing a sealed copy of the decree in that court.
(2) For the purposes of subregulation (1), a decree may be filed:
(a) by a party to the proceedings in which the decree was made;
(b) by a child entitled to benefit under the decree;
(c) by an officer of the court;
(d) by an officer, authority or person entitled under paragraph 125(1)(f) of the Act to take proceedings for the enforcement of the decree; or
(e) with the leave of the court, by any other person.
(3) A decree filed and registered under subregulation (1) shall be numbered in accordance with the applicable Rules of Court.
17A Declaration—definition of forfeiture order
Each kind of order declared by regulation 5 of the Proceeds of Crime Regulations 2002 to be within the definition of interstate forfeiture order in section 338 of the Proceeds of Crime Act 2002 is declared to be a forfeiture order for the purposes of paragraph (b) of the definition of forfeiture order in subsection 4(1) of the Act.
17B Declaration—definition of restraining order
Each kind of order declared by regulation 7 of the Proceeds of Crime Regulations 2002 to be within the definition of interstate restraining order in section 338 of the Proceeds of Crime Act 2002 is declared to be a restraining order for the purposes of paragraph (b) of the definition of restraining order in subsection 4(1) of the Act.
17C Definition of State or Territory proceeds of crime law
Each law declared by regulation 4 of the Proceeds of Crime Regulations 2002 to be a law that corresponds to the Proceeds of Crime Act 2002 is, for the definition of State or Territory proceeds of crime law in subsection 4(1) of the Act, declared to be a law that corresponds to the Proceeds of Crime Act 2002.
17D Definition of proceeds of crime authority
Forfeiture orders
(1) For subsection 4C(4) of the Act, each person or body mentioned in an item of the following table is prescribed to be a proceeds of crime authority, in relation to a forfeiture order, for sections 79B, 79C, 79D, 79E, 90M, 90N, 90P, 90Q, 90VA, 90VB, 90VC and 90VD of the Act.
Item
Person or body
1
The Commission, within the meaning of the Criminal Assets Recovery Act 1990 of New South Wales
2
An appropriate officer, within the meaning of the Confiscation of Proceeds of Crime Act 1989 of New South Wales
3
The DPP, within the meaning of the Confiscation Act 1997 of Victoria
4
An appropriate officer, within the meaning of the Confiscation Act 1997 of Victoria
5
A prescribed person, or a person belonging to a prescribed class of persons, for the purposes of subsection 37(1) of the Confiscation Act 1997 of Victoria
6
The commission, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland
7
A police officer approved by the commission, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland, for the purposes of subparagraph 12(1)(a)(ii) of that Act
8
An appropriate officer, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland
9
The DPP, within the meaning of the Criminal Property Confiscation Act 2000 of Western Australia
10
The DPP, within the meaning of the Criminal Assets Confiscation Act 2005 of South Australia
11
An authorized officer, within the meaning of the Crime (Confiscation of Profits) Act 1993 of Tasmania
12
The DPP, within the meaning of the Confiscation of Criminal Assets Act 2003 of the Australian Capital Territory
13
The DPP, within the meaning of the Criminal Property Forfeiture Act 2002 of the Northern Territory
14
A police officer, within the meaning of the Criminal Property Forfeiture Act 2002 of the Northern Territory
Restraining Orders
(2) For subsection 4C(4) of the Act, each person or body mentioned in an item of the following table is prescribed to be a proceeds of crime authority, in relation to a restraining order, for sections 79B, 79C, 79D, 79E, 90M, 90N, 90P, 90Q, 90VA, 90VB, 90VC and 90VD of the Act.
Item
Person or body
1
The Commission, within the meaning of the Criminal Assets Recovery Act 1990 of New South Wales
2
An appropriate officer, within the meaning of the Confiscation of Proceeds of Crime Act 1989 of New South Wales
3
An authorised officer, within the meaning of the Confiscation of Proceeds of Crime Act 1989 of New South Wales
4
The DPP, within the meaning of the Confiscation Act 1997 of Victoria
5
An appropriate officer, within the meaning of the Confiscation Act 1997 of Victoria
6
A prescribed person, or a person belonging to a prescribed class of persons, for the purposes of subsection 16(2) of the Confiscation Act 1997 of Victoria
7
A prescribed person, or a person belonging to a prescribed class of persons, for the purposes of subsection 36K(1) of the Confiscation Act 1997 of Victoria
8
The commission, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland
9
A police officer approved by the commission, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland, for the purposes of subparagraph 12(1)(a)(ii) of that Act
10
An appropriate officer, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland
11
The DPP, within the meaning of the Criminal Property Confiscation Act 2000 of Western Australia
12
A police officer, within the meaning of the Criminal Property Confiscation Act 2000 of Western Australia
13
The DPP, within the meaning of the Criminal Assets Confiscation Act 2005 of South Australia
14
An authorised officer, within the meaning of the Criminal Assets Confiscation Act 2005 of South Australia
15
An authorized officer, within the meaning of the Crime (Confiscation of Profits) Act 1993 of Tasmania
16
The DPP, within the meaning of the Confiscation of Criminal Assets Act 2003 of the Australian Capital Territory
17
The DPP, within the meaning of the Criminal Property Forfeiture Act 2002 of the Northern Territory
18
A police officer, within the meaning of the Criminal Property Forfeiture Act 2002 of the Northern Territory
Forfeiture applications
(3) For subsection 4C(4) of the Act, each person or body mentioned in an item of the following table is prescribed to be a proceeds of crime authority, in relation to a forfeiture application, for sections 79B, 79C, 79D, 79E, 90M, 90N, 90P, 90Q, 90VA, 90VB, 90VC and 90VD of the Act.
Item
Person or body
1
The Commission, within the meaning of the Criminal Assets Recovery Act 1990 of New South Wales
2
An appropriate officer, within the meaning of the Confiscation of Proceeds of Crime Act 1989 of New South Wales
3
The DPP, within the meaning of the Confiscation Act 1997 of Victoria
4
An appropriate officer, within the meaning of the Confiscation Act 1997 of Victoria
5
A prescribed person, or a person belonging to a prescribed class of persons, for the purposes of subsection 37(1) of the Confiscation Act 1997 of Victoria
6
The commission, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland
7
A police officer approved by the commission, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland, for the purposes of subparagraph 12(1)(a)(ii) of that Act
8
An appropriate officer, within the meaning of the Criminal Proceeds Confiscation Act 2002 of Queensland
9
The DPP, within the meaning of the Criminal Property Confiscation Act 2000 of Western Australia
10
The DPP, within the meaning of the Criminal Assets Confiscation Act 2005 of South Australia
11
An authorized officer, within the meaning of the Crime (Confiscation of Profits) Act 1993 of Tasmania
12
The DPP, within the meaning of the Confiscation of Criminal Assets Act 2003 of the Australian Capital Territory
13
The DPP, within the meaning of the Criminal Property Forfeiture Act 2002 of the Northern Territory
14
A police officer, within the meaning of the Criminal Property Forfeiture Act 2002 of the Northern Territory
18 Interstate enforcement of affiliation and similar orders
(1) This regulation applies to orders to which section 109 of the Act applies.
(2) A reference in this regulation to an order made by a court shall be read as including a reference to an order made by another court on an appeal in connection with proceedings that originated in the first‑mentioned court.
(3) For the purposes of this regulation, a person working in a place, whether temporarily or permanently, shall be deemed to be resident in that place as well as in the place in which he or she is in fact resident.
(4) Where an order to which this regulation applies is still in force and it appears that the person against whom the order has been made is resident in, or proceeding to, a State or Territory, other than the State or Territory in which the order was made, the relevant Registrar of the court in the State or Territory in which the order was made may, of his or her own motion, or on the application of a person for whose benefit the order was made, send to a court having jurisdiction under the Act in that other State or Territory:
(a) 3 certified copies of the order;
(b) a certificate setting out the amounts payable and remaining unpaid under the order;
(c) such information and material (if any) as the relevant Registrar possesses for ascertaining the identity and whereabouts of the person against whom the order has been made; and
(d) a request in writing that the order be made enforceable in that State or Territory.
(5) Where the relevant Registrar of a court receives the documents referred to in subregulation (4), the relevant Registrar of that court shall, if there are reasonable grounds for believing that the person against whom the order has been made is resident in or proceeding to the area over which the court has jurisdiction, register the order by filing in the court a certified copy of the order and certificate and noting the fact and date of the registration on that certified copy.
(6) An order registered under subregulation (5) is, until the registration is cancelled, enforceable in the court in which the certified copy of the order is filed both with respect to any moneys or arrears presently payable under the order and with respect to amounts becoming due under the order after it is so registered as if it were an order made under the Act.
(7) Upon registration under subregulation (5) of an order, the relevant Registrar of the court shall:
(a) notify the relevant Registrar of the requesting court of the registration; and
(b) cause a certified copy of the order to be served upon the person against whom the order has been made, together with a notice of registration of the order in the court specifying:
(i) the amount, if any, (including arrears) due under the order; and
(ii) the person, authority or court to whom or to which money payable under the order is to be paid.
(8) Service of the documents may be effected by:
(a) delivering the documents to the person personally; or
(b) sending the documents by prepaid post to the person at the person’s last known address; or
(c) posting, faxing or delivering the documents to the person at the person’s address for service within the meaning of the applicable Rules of Court.
(8A) Documents served under paragraph 8(b) must be accompanied by a form of acknowledgment of service for completion by the person served.
(9) Where an order has been registered in a court in accordance with this regulation and there are reasonable grounds for believing that the person against whom the order has been made is no longer resident in the State or Territory in which the order has been registered but is or is about to be resident in another State or Territory, the relevant Registrar of the court in which the order has been registered shall forthwith notify the relevant Registrar of the court in which the order was made accordingly and shall give to that relevant Registrar such information as the relevant Registrar of the first‑mentioned court possesses concerning the whereabouts and intended movements of that person.
(10) Where:
(a) an order has been registered in accordance with this regulation; and
(b) the relevant Registrar of a court receives from the requesting court a request in writing that the order be no longer enforced;
the relevant Registrar shall cancel the registration by noting the fact and date of the cancellation on the certified copy of the order filed in the court.
(11) Upon the cancellation of the registration of an order:
(a) the order ceases to be enforceable by the court in which it has been registered;
(b) the order remains unenforceable by that court unless and until it is again registered in that court; and
(c) every warrant or other process arising out of the registration of the order ceases to have force or effect.
(12) Where:
(a) an order to which this regulation applies made by a court in a State or Territory was, before the commencement of the Act, registered in a court in another State or Territory (being a court that has jurisdiction under the Act); and
(b) the registration had not been cancelled before the commencement of this subregulation;
subregulations (6), (9), (10) and (11) apply in relation to that order as if it were an order registered in the last‑mentioned court in accordance with this regulation.
19 Operation of State and Territory laws—prescribed laws (Act s 114AB)
For section 114AB of the Act, the following are prescribed laws:
(a) the Crimes (Domestic and Personal Violence) Act 2007 (NSW);
(b) the Family Violence Protection Act 2008 (Vic);
(c) the Domestic and Family Violence Protection Act 2012 (Qld) and the Peace and Good Behaviour Act 1982 (Qld);
(d) Parts 1 to 6 of the Restraining Orders Act 1997 (WA);
(e) the Intervention Orders (Prevention of Abuse) Act 2009 (SA);
(f) the Family Violence Act 2004 (Tas) and Part XA of the Justices Act 1959 (Tas);
(g) the Family Violence Act 2016 (ACT);
(h) the Domestic and Family Violence Act 2007 (NT);
(i) the Domestic Violence Act 1995 (NI).
19A Exceptions to restriction on publishing Court proceedings—States and Territories authorities that have responsibilities relating to the welfare of children
For paragraph 121(9)(aa) of the Act, each of the following authorities is prescribed:
(a) for New South Wales—the Department of Family and Community Services;
(b) for Victoria—the Department of Health and Human Services;
(c) for Queensland—the Department of Child Safety, Youth and Women;
(d) for Western Australia—the Department of Communities;
(e) for South Australia—the Department for Child Protection;
(f) for Tasmania—the Department of Communities Tasmania;
(g) for the Australian Capital Territory—the Community Services Directorate;
(h) for the Northern Territory—Territory Families.
20 Priority of attachment orders
For the purposes of the Maintenance Orders (Commonwealth Officers) Act 1966, an order made under the applicable Rules of Court for the attachment of moneys payable by the Commonwealth, a State, a Territory or the Administration of a Territory or by an authority of the Commonwealth, of a State or of a Territory (other than moneys as to which it is provided by any law of the Commonwealth, of a State or of a Territory that they are not liable to attachment) shall be regarded as having been made under this regulation and shall have the same force and effect as an order made under the Third Schedule to the repealed Act.
21 Conversion of currency
(1) If the Child Support Registrar has calculated the amount in Australian currency (the Australian amount) that is equivalent to an amount expressed in a currency of an overseas country in a document to which this regulation applies, the calculation done by the Child Support Registrar also applies for these Regulations.
(2) If the Child Support Registrar has not done the calculation mentioned in subregulation (1), the calculation must be done in the way set out in this regulation.
(3) The Australian amount is calculated by using the telegraphic transfer rate of exchange prevailing on the day on which the order, agreement or liability relevant to the document becomes enforceable in Australia.
(4) If the Secretary calculates the Australian amount for a document to which this regulation applies, the Secretary must endorse on the document the rate of exchange used for the calculation.
(5) This regulation applies to the following documents:
(a) an overseas maintenance order (including a provisional order);
(b) an overseas maintenance agreement;
(c) a document about an overseas maintenance entry liability for Division 2 in Part III;
(d) a certificate or notice, originating in an overseas jurisdiction, about an overseas maintenance order or agreement.
Part IIAAA—Protected names and symbols
21AAA Protected names (Act s 9A)
For the definition of protected name in subsection 9A(4) of the Act, each of the names specified in Schedule 10 is prescribed.
21AAB Protected symbols (Act s 9A)
(1) Each symbol whose design is set out in Schedule 11 is a protected symbol for the purposes of the definition of that term in subsection 9A(4) of the Act.
(2) A symbol mentioned in subregulation (1) does not cease to be a protected symbol by reason only of the symbol being expressed in a colour, combination of colours, font or size different from that set out in Schedule 11.
Part IIAB—Service under the Hague Service Convention
Division 1—Preliminary
Note 1: This Part forms part of a scheme to implement Australia’s obligations under the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney‑General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as ‘other ‘ or ‘additional ‘ authorities (under Article 18 of the Convention).
Note 2: This Part provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the court) and (in Division 3) for default judgment in proceedings in the court after service overseas of such a document.
Note 3: The Attorney‑General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at http://www.hcch.net.
21AC Definitions for Part IIAB
In this Part:
additional authority, for a Convention country, means an authority that is:
(a) for the time being designated by the country, under Article 18 of the Hague Service Convention, to be an authority (other than the Central Authority) for the country; and
(b) competent to receive requests for service abroad emanating from Australia.
applicant, for a request for service abroad, means the person on whose behalf service is requested.
Note: The term applicant may have a different meaning in other provisions of these Regulations.
Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Service Convention, to be the Central Authority for that country.
certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Service Convention.
certifying authority, for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Service Convention, to complete certificates of service in the form annexed to the Hague Service Convention.
civil proceedings means any judicial proceedings in relation to civil or commercial matters.
Convention country means a country, other than Australia, that is a party to the Hague Service Convention.
defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.
foreign judicial document means a judicial document that originates in a Convention country and relates to civil proceedings in a court of that country.
forwarding authority means the relevant Registrar.
initiating process means any document by which proceedings (including proceedings on any cross‑claim or third party notice) are commenced.
local judicial document means a judicial document that relates to civil proceedings in the court.
request for service abroad means a request for service in a Convention country of a local judicial document mentioned in subregulation 21AF(1).
21AD Provisions of this Part to prevail
The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of these Regulations.
Division 2—Service abroad of local judicial documents
21AE Application of Division
(1) Subject to subregulation (2), this Division applies to service in a Convention country of a local judicial document.
(2) This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Service Convention.
21AF Application for request for service abroad
(1) A person may apply to the relevant Registrar, in the relevant Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.
(2) The application must be accompanied by 3 copies of each of the following documents:
(a) a draft request for service abroad, which must be in accordance with Part 1 of Form 1A in Schedule 1;
(b) the document to be served;
(c) a summary of the document to be served, which must be in accordance with Form 1B in Schedule 1;
(d) if, under Article 5 of the Hague Service Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, an official language of that country, a translation into that language or 1 of the official languages of both the document to be served and the summary of the document to be served.
(3) The application must contain a written undertaking to the court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in the proceedings, by the applicant:
(a) to be personally liable for all costs that are incurred:
(i) by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or
(ii) by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and
(b) to pay the amount of those costs to the relevant Registrar within 28 days after receipt from the relevant Registrar of a notice specifying the amount of those costs under subregulation 21AH(3); and
(c) to give such security for those costs as the relevant Registrar may require.
(4) The draft request for service abroad:
(a) must be completed (except for signature) by the applicant; and
(b) must state whether, if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected, the applicant wants service to be attempted after the expiry of that time; and
(c) must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and
(d) may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.
(5) Any translation required under paragraph (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating:
(a) that the translation is an accurate translation of the document to be served; and
(b) the translator’s full name and address and his or her qualifications for making the translation.
21AG How application to be dealt with
(1) If satisfied that the application and its accompanying documents comply with regulation 21AF, the relevant Registrar:
(a) must sign the request for service abroad; and
(b) must forward 2 copies of the relevant documents:
(i) if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected—to the nominated additional authority; or
(ii) in any other case—to the Central Authority for the Convention country in which service of the document is to be effected.
(2) The relevant documents mentioned in paragraph (1)(b) are the following:
(a) the request for service abroad (duly signed);
(b) the document to be served;
(c) the summary of the document to be served;
(d) if required under paragraph 21AF(2)(d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).
(3) If not satisfied that the application or any of its accompanying documents complies with regulation 21AF, the relevant Registrar must inform the applicant of the respects in which the application or document fails to comply.
21AH Procedure on receipt of certificate of service
(1) Subject to subregulation (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the relevant Registrar:
(a) must arrange for the original certificate to be filed in the proceedings to which the document relates; and
(b) must send a copy of the certificate to:
(i) the legal practitioner on the record for the applicant in the proceedings; or
(ii) if there is no legal practitioner on the record for the applicant in the proceedings—the applicant.
(2) For the purposes of subregulation (1), a certificate of service is in due form if:
(a) it is in accordance with Part 2 of Form 1A in Schedule 1; and
(b) it has been completed by a certifying authority for the Convention country in which service was requested; and
(c) if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority—it has been countersigned.
(3) On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subregulation (1), the relevant Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in subregulation 21AF(3) a notice specifying the amount of those costs.
(4) For the purposes of subregulation (3), a statement of costs is in due form if:
(a) it relates only to costs of a kind mentioned in paragraph 21AF(3)(a); and
(b) it has been completed by a certifying authority for the Convention country in which service was requested.
(5) Subregulation (1) does not apply unless:
(a) adequate security to cover the costs mentioned in subregulation (3) has been given under paragraph 21AF(3)(c); or
(b) to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the relevant Registrar.
21AI Payment of costs
(1) On receipt of a notice under subregulation 21AH(3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the relevant Registrar the amount specified in the notice as the amount of the costs.
(2) If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice:
(a) except by leave of the court, the applicant may not take any further step in the proceedings to which the local judicial document relates until the costs are paid to the relevant Registrar; and
(b) the relevant Registrar may take such steps as are appropriate to enforce the undertaking for payment of the costs.
21AJ Evidence of service
A certificate of service in relation to a local judicial document (being a certificate in due form, within the meaning of subregulation 21AH(2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that:
(a) service of the document was effected by the method specified in the certificate on that date; and
(b) if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.
Division 3—Default judgment following service abroad of initiating process
21AK Application of Division
This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.
21AL Restriction on power to enter default judgment if certificate of service filed
(1) This regulation applies if:
(a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form, within the meaning of subregulation 21AH(2)) that states that service has been duly effected; and
(b) the defendant has not appeared or filed a notice of address for service.
(2) In circumstances to which this regulation applies, default judgment may not be given against the defendant unless the court is satisfied that:
(a) the initiating process was served on the defendant:
(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or
(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the country, by that method; or
(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and
(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.
(3) In paragraph (2)(b), sufficient time means:
(a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or
(b) such lesser time as the court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.
21AM Restriction on power to enter default judgment if certificate of service not filed
(1) This regulation applies if:
(a) a certificate of service of initiating process has not been filed in the proceedings; or
(b) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form, within the meaning of subregulation 21AH(2)) that states that service has not been effected;
and the defendant has not appeared or filed a notice of address for service.
(2) If this regulation applies, default judgment may not be given against the defendant unless the court is satisfied that:
(a) the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and
(b) a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded; and
(c) every reasonable effort has been made:
(i) to obtain a certificate of service from the relevant certifying authority; or
(ii) to effect service of the initiating process;
as the case requires.
21AN Setting aside judgment in default of appearance
(1) This regulation applies if default judgment has been entered against the defendant in proceedings to which this Division applies.
(2) If this regulation applies, the court may set aside the judgment on the application of the defendant if it is satisfied that the defendant:
(a) without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and
(b) has a prima facie defence to the proceedings on the merits.
(3) An application to have a judgment set aside under this regulation may be filed:
(a) at any time within 12 months after the date on which the judgment was given; or
(b) after the expiry of that 12‑month period, within such time after the defendant acquires knowledge of the judgment as the court considers reasonable in the circumstances.
(4) Nothing in this regulation affects any other power of the court to set aside or vary a judgment.
Part IIAC—Service in countries that are parties to conventions other than the Hague Service Convention
21AO Application of Part
This Part applies to the service of a document in a convention country subject to the provisions of the convention.
21AP Definitions for Part IIAC
In this Part:
convention means a convention (other than the Hague Service Convention), that is in force for Australia, about legal proceedings in civil and commercial matters.
convention country means a country that is a party to a convention (other than the Hague Service Convention), that is in force for Australia, about legal proceedings in civil and commercial matters.
21AQ Service in accordance with convention
If the convention provides that a document may be served in a convention country only in accordance with the convention, the document must be served in accordance with this Part.
21AR Request for service
(1) A party to proceedings may request service of a document relating to the proceedings on a person in a convention country by:
(a) filing a request for service of the document in accordance with Forms 1A and 1B in Schedule 1; and
(b) giving to the relevant Registrar of the court in which the proceedings are pending the following documents:
(i) the document to be served;
(ii) a translation of the document into the language of the convention country;
(iii) copies of the document to be served and the translation;
(iv) any further copies of the document and translation required by the convention.
(2) The relevant Registrar must seal the documents mentioned in paragraph (1)(b) with the seal of the court and give them to the Secretary for transmission to the convention country for service.
(3) For subparagraph(1)(b)(ii), the translation must include a certificate, in the language of the convention country, by the person who made the translation, certifying that it is a translation of the document of which it purports to be a translation.
21AS Certificate of service
(1) A certificate certifying that a document has been served on a person on a date specified in the certificate is evidence of the matters stated in the certificate if:
(a) it is made by a judicial authority in a convention country; and
(b) it is received by the relevant Registrar in accordance with the convention.
(2) If the document must be served by delivering it personally to the person, the certificate must state:
(a) the means by which the person who served the document identified the person served; or
(b) how the document came to the notice of the person on whom it was to be served.
Part IIA—Parentage testing procedures and reports
Division 1—General
21A Application of Part
This Part applies to a parentage testing procedure that is required to be carried out on a person under a parentage testing order made by the court under subsection 69W(1) of the Act.
21B Interpretation
In this Part, unless the contrary intention appears:
bodily sample is not limited to a sample of blood.
donor means the person required to provide a bodily sample for the purposes of a parentage testing procedure.
HLA means human leucocyte antigen.
NATA means the National Association of Testing Authorities, Australia.
nominated reporter means the person nominated by a laboratory to prepare a report relating to the information obtained as a result of carrying out a parentage testing procedure at that laboratory.
report means a report in accordance with regulation 21M.
sample means a sample taken from a donor for the purposes of a parentage testing procedure.
sampler means a person who takes a bodily sample from a donor for the purposes of a parentage testing procedure.
testing means the implementation, or any part of the implementation, of a parentage testing procedure.
21C Parentage testing procedures
For the purposes of the definition of parentage testing procedure in subsection 4(1) of the Act, the following medical procedures are prescribed:
(a) red cell antigen blood grouping;
(b) red cell enzyme blood grouping;
(c) HLA tissue typing;
(d) testing for serum markers;
(e) DNA typing.
21D Compliance with Regulations
A parentage testing procedure is taken to be carried out in accordance with these Regulations if:
(a) it is carried out:
(i) in compliance with Division 2; and
(ii) at a laboratory that is accredited by NATA for the purpose of carrying out parentage testing procedures; and
(iii) in accordance with standards of practice that entitle the laboratory to be so accredited; and
(b) it is supplemented by a report under Division 3.
Division 2—Collection, storage and testing of samples
21E Samplers
A person must not take a bodily sample from a donor for the purposes of a parentage testing procedure unless:
(a) the person is a registered medical practitioner; or
(b) the person is employed by a hospital, a pathology practice, a parentage testing practice or a registered medical practitioner for the purpose of taking a bodily sample from a donor.
21F Provision of information by donor—Form 2
(1) A sampler must not take a bodily sample from a donor unless the donor or, if appropriate, a person described in subregulation (3), has:
(a) immediately before the sampler takes the bodily sample, completed an affidavit in accordance with Form 2 in Schedule 1, to which is attached a recent photograph of the donor named in the affidavit; and
(b) either:
(i) provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres by 35 millimetres, that shows a full face view of the donor’s head and the donor’s shoulders against a plain background; or
(ii) made a written arrangement with the sampler for a photograph of that kind to be taken.
(2) The photograph required by paragraph (1)(b) is in addition to the photograph that is required to be attached to Form 2.
(3) If the donor is a child under the age of 18 years, or a person who is suffering from a mental disability, the affidavit referred to in paragraph (1)(a) may be completed only by:
(a) in the case of a child under the age of 18 years—a person who is responsible for the long‑term care, welfare and development of the child; or
(b) in the case of a person who is suffering from a mental disability:
(i) a trustee or manager in relation to the person under a law of the State or Territory whose laws apply to the person; or
(ii) a person who is responsible for the care, welfare and development of the person suffering from a mental disability.
21G Collection of blood samples
(1) A sampler may take a sample of blood from a donor only with a needle or syringe that:
(a) has not been used for any purpose; and
(b) has been sterilised; and
(c) is disposable.
(2) Before taking a sample of blood from a donor, the sampler must ensure that the area of the donor’s skin into which the needle is to be inserted to withdraw the blood has been cleaned with an antiseptic.
21H Collection of bodily samples for DNA typing
(1) This regulation applies to the taking of a bodily sample (except a sample of blood) from a donor for the purposes of a parentage testing procedure that is DNA typing.
(2) A sampler must not take a bodily sample from a donor with a swab unless the swab:
(a) has not been used for any purpose; and
(b) has been sterilised.
(3) If the bodily sample to be taken from a donor is a skin scraping or a hair root, the implement used by the sampler to take the sample must have been sterilised before use.
21I Container to be sealed and labelled
(1) If a bodily sample is taken from a donor, the sampler must ensure that:
(a) the sample is placed in a container:
(i) immediately after it is taken; and
(ii) in the presence of the donor; and
(b) the container has not previously been used for any purpose; and
(c) the container is sealed in a way that, if it were opened after being sealed, that fact would be evident on inspection of the container; and
(d) the container is labelled in a way that:
(i) if the label, or any part of the label, were removed; or
(ii) if writing on the label were impaired by alteration or erasure;
the removal of the label, or the impairment, would be evident on inspection of the container; and
(e) the particulars on the label are inscribed in ink and include:
(i) the full name of the donor; and
(ii) the date of birth and the sex of the donor; and
(iii) the date and time at which the sample was taken; and
(f) when paragraph (e) is complied with—the sampler and the donor sign the label, in ink.
(2) If the donor is a child under the age of 18 years:
(a) the procedure specified in paragraph (1)(a) must be completed in the presence of the person who is responsible for the long‑term care, welfare and development of the child; and
(b) the procedure specified in paragraph (1)(f) is taken to be satisfied only if the person who is responsible for the long‑term care, welfare and development of the child signs the label.
(3) If the donor is a person who is suffering from a mental disability:
(a) the procedure specified in paragraph (1)(a) must be completed in the presence of:
(i) a trustee or manager in relation to the person under a law of the State or Territory whose laws apply to the person; or
(ii) a person who is responsible for the care, welfare and development of the person suffering from a mental disability; and
(b) the procedure specified in paragraph (1)(f) is taken to be complied with only if the label is signed:
(i) by a trustee or manager in relation to the person under a law of the State or Territory whose laws apply to the person; or
(ii) by a person who is responsible for the care, welfare and development of the person suffering from a mental disability.
21J Statement by sampler—Form 4
After taking a bodily sample from a donor, the sampler must:
(a) complete a statement in accordance with Form 4 in Schedule 1; and
(b) affix the photograph of the donor referred to in paragraph 21F(1)(b) to the statement; and
(c) sign his or her name partly on the photograph and partly on the statement in a way that, if the photograph were later removed from the statement, the removal would be evident from inspection of the statement.
21K Packing and storage requirements
(1) A bodily sample must be packed, stored and transported to a laboratory for testing in a manner that:
(a) will preserve the integrity of the sample; and
(b) ensures that the testing of the sample will produce the same results as would have been obtained if the sample had been tested immediately after collection.
(2) The sampler must ensure that the following documents are sent to the laboratory with the sample:
(a) the affidavit completed under paragraph 21F(1)(a);
(b) the statement completed under regulation 21J.
21L Testing of bodily samples
(1) A laboratory to which a bodily sample has been sent for testing must ensure that the testing is completed:
(a) if the proposed procedure is red cell antigen blood grouping, red cell enzyme blood grouping or testing for serum markers—within 6 days after the sample is taken; or
(b) if the proposed procedure is HLA tissue typing—within 3 days after the sample is taken; or
(c) if the proposed procedure is DNA typing—within a reasonable time after the sample is taken.
(2) If the proposed procedure is red cell enzyme blood grouping or testing for serum markers, paragraph (1)(a) is complied with if a dried sample of the bodily sample to be tested is prepared within 6 days after the sample is taken from the donor.
Division 3—Reports
21M Reports—Form 5
(1) For the purposes of paragraph 69ZB(b) of the Act, a report must be prepared, in accordance with this regulation, relating to the information obtained as a result of carrying out a parentage testing procedure.
(2) The report must be in accordance with Form 5 in Schedule 1.
(3) Part I of the report must be completed by the nominated reporter identified in the report.
(4) Part II of the report must be completed by:
(a) the person who carried out the parentage testing procedure; or
(b) the person under whose supervision the parentage testing procedure was carried out.
(5) A report completed otherwise than in accordance with this regulation is taken to be of no effect.
Division 4—Miscellaneous
21N Notification of accredited laboratories and nominated reporters
(1) NATA must prepare, for each financial year:
(a) a list of any laboratories that are accredited by NATA to carry out parentage testing procedures; and
(b) for each accredited laboratory—a nominated reporter.
(2) Immediately before the beginning of each financial year, NATA must give a copy of the list to:
(a) the Attorney‑General; and
(b) the Chief Executive Officer; and
(c) the relevant Registrar of the Family Court of Western Australia.
(3) The Attorney‑General must publish the list in a manner determined by the Attorney‑General.
(4) If NATA amends the list during the year to which it applies, it must give written notice of the amendment to each person referred to in subregulation (2).
(5) If NATA gives notice under subregulation (4), the Attorney‑General must publish a revised list in a manner determined by the Attorney‑General.
Part III—Overseas orders
Division 1—Overseas child orders
23 Registration of overseas child orders
(1) Subregulation (1A) applies if:
(a) the Secretary receives:
(i) from a prescribed overseas jurisdiction a certified copy of an overseas child order that was made in that jurisdiction; and
(ii) a certificate signed by an officer of a court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction; and
(b) there are reasonable grounds for believing that any of the following persons is ordinarily resident in, present in, or proceeding to, Australia:
(i) the child who is the subject of the order;
(ii) a parent of that child;
(iii) a person having the right to have the child live with him or her, or the right of custody of or access to the child, or the right to spend time or communicate with the child.
(1A) The Secretary must send the documents mentioned in paragraph (1)(a) to a relevant Registrar.
(2) When the relevant Registrar of a court receives from the Secretary the documents referred to in subregulation (1), the relevant Registrar shall register the order by filing in the court a certified copy of the order and the certificate relating to the order and noting the fact and the date of the registration on the certified copy.
(3) Where an overseas child order has been registered in accordance with subregulation (2), the order may, on the application of the relevant Registrar of a court or a person interested in the order (including the child who is the subject of the order), be registered concurrently in any other court having jurisdiction under the Act.
(4) A certificate by a court that the order has been registered in that court in accordance with subregulation (2) shall be sufficient evidence to enable a concurrent registration to be made.
(5) An overseas child order registered in accordance with this regulation is enforceable throughout Australia until the registration (including a concurrent registration) has been cancelled.
(6) Where it appears to a court that the documents referred to in subregulation (1) have been received by the court other than from the Secretary, the court may, if all other requirements of subregulation (1) are satisfied, register the order.
(7) Where a court exercising jurisdiction under section 70J of the Act substantially varies the order, the relevant Registrar of the court shall forthwith forward to the court or to the appropriate authority in the prescribed overseas jurisdiction:
(a) 3 certified copies of the order of the court and the reasons for the order;
(b) a copy of the depositions; and
(c) such further material as the court directs.
(8) This regulation does not prevent a court that has jurisdiction under the Act from receiving evidence of an order made in an overseas jurisdiction (whether or not the jurisdiction is a prescribed overseas jurisdiction), being an order that:
(a) deals with the person with whom a child is supposed to live, spend time or communicate; or
(b) provides for a person to have custody of, or access to, a child.
24 Transmission of orders to overseas jurisdiction
(1) This regulation applies if:
(a) a State child order, or a parenting order other than a child maintenance order, is made by a court in Australia in relation to a child who is under 18; and
(b) the order may be enforced in a prescribed overseas jurisdiction under provisions corresponding to Subdivision C of Division 13 of Part VII of the Act.
(2) If the relevant Registrar of the court in which the order was made, registered or last varied, receives a written request from a person mentioned in subregulation (3) to send the order to the prescribed overseas jurisdiction for registration and enforcement in that jurisdiction, the relevant Registrar must send the documents mentioned in subregulation (4) to the appropriate court or authority in the prescribed overseas jurisdiction.
(3) For subregulation (2), a request may be made by a person:
(a) with whom the child is supposed to live, spend time or communicate under the order; or
(b) who has a right to custody of, or access to, the child under the order.
(4) For subregulation (2), the documents are as follows:
(a) 3 certified copies of the order;
(b) a certificate signed by the relevant Registrar stating that the order is, at the date of the certificate, enforceable in Australia;
(c) any information and material the relevant Registrar holds that may assist in identifying and locating the child or any other person who is subject to the order;
(d) a request in writing that the order be made enforceable in the prescribed overseas jurisdiction.
(5) If:
(a) the order is registered in a court in the prescribed overseas jurisdiction; and
(b) a court in that jurisdiction makes an order under a law corresponding to section 70J of the Act (the overseas order);
a court having jurisdiction under the Act may treat the overseas order as an overseas child order for the purposes of exercising jurisdiction under that section.
(6) If a court exercises jurisdiction under section 70J of the Act in relation to a child who is the subject of the overseas order, the relevant Registrar of the court must send to the court in the prescribed overseas jurisdiction:
(a) 3 certified copies of any order made by the court and the reasons for the order; and
(b) such further material as the court directs.
(7) Nothing in this regulation prevents a person having a right of custody of or access to a child, or a right to spend time or communicate with the child, under the order from:
(a) obtaining certified copies of the order; or
(b) applying to a court in an overseas jurisdiction (whether or not it is a prescribed overseas jurisdiction) for registration and enforcement of the order in that jurisdiction.
(8) In this regulation:
custody, in relation to a child, includes:
(a) guardianship of the child; and
(b) responsibility for the long‑term or day‑to‑day care, welfare and development of the child; and
(c) responsibility as the person or persons with whom the child is to live.
overseas child order has the meaning given by section 70F of the Act.
Division 2—Maintenance
24A Definitions for Division 2
In this Division:
maintenance order means:
(a) a maintenance order within the meaning of section 110 of the Act; and
(b) an order made under section 67D or 67E of the Act.
overseas maintenance entry liability means an overseas maintenance entry liability included in the Child Support Register under section 25A of the Child Support (Registration and Collection) Act 1988.
reciprocating jurisdiction has the same meaning as in section 110 of the Act.
registered maintenance liability means a registrable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988.
25 Reciprocating jurisdictions
Each of the jurisdictions specified in Schedule 2 is declared to be a reciprocating jurisdiction for the purposes of section 110 of the Act.
28 Dealing with provisional overseas maintenance orders
(1) This regulation applies if:
(a) a maintenance order has been made in a reciprocating jurisdiction; and
(b) the order has no effect under the law of that jurisdiction unless and until it is confirmed by a court outside that jurisdiction; and
(c) the Secretary has received:
(i) a certified copy of the order; and
(ii) a copy of the depositions of the witnesses in the proceedings in which the order was made; and
(iii) a statement of the grounds on which the order could have been opposed if the person against whom the order was sought (the respondent) had appeared at the hearing; and
(d) there are reasonable grounds for believing that:
(i) the respondent is ordinarily resident in, is present in, or is proceeding to, Australia; and
(ii) the order will have effect under the law of the overseas jurisdiction if it is confirmed by a court having jurisdiction under the Act.
(2) The Secretary must make an application calling upon the respondent to show cause why that order should not be confirmed.
Note: For application, see regulation 3.
(3) The Secretary must serve a copy of the application on the respondent.
Note: Service is dealt with by the applicable Rules of Court.
28A Hearings about applications about provisional overseas maintenance orders
(1) This regulation explains what may happen on the hearing of an application under subregulation 28(2).
(2) It is open to the respondent to raise any ground of opposition that the respondent could have raised in the original proceedings or any ground of opposition that the respondent could have raised if the proceedings leading to the making of the provisional overseas order had been heard in Australia.
(3) The statement mentioned in subparagraph 28(1)(c)(iii) is conclusive evidence of the grounds of opposition that could have been raised in the original proceedings.
(4) A court must not determine the application if an application could properly be made at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Registration and Collection) Act 1988, for administrative assessment of child support (within the meaning of the Child Support (Assessment) Act 1989) by a person seeking payment of child support for the child from the respondent.
(5) Subregulation (4) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.
(6) The court may:
(a) confirm the provisional order (either with or without modification); or
(b) discharge the provisional order; or
(c) adjourn the proceedings, and remit the provisional order to the court that made it with a request that that court take further evidence and further consider its provisional order.
28B Making of orders about provisional overseas maintenance orders
(1) This regulation is about orders made under subregulation 28A(6).
(2) An order confirming a provisional order may specify:
(a) the time or times by which the money payable under the order is to be paid; and
(b) the person, authority or court to whom or to which that money is to be paid; and
(c) where necessary, the means by which that money must be paid or disbursed.
(3) A provisional order that is confirmed (whether with or without modification) is enforceable in Australia, as so confirmed, and has effect in Australia as if it were an order made under the Act.
(4) If the court adjourns the proceedings, the court may make a temporary order for periodic payments by the respondent.
(5) The Secretary must notify an officer of the court or other authority in the overseas jurisdiction of a decision of the court confirming or discharging an order.
28C Dealing with United States petitions
(1) This regulation applies if:
(a) a petition is filed in a court in a State or Territory of the United States of America seeking a support order against a person claimed in the petition to have a duty of support; and
(b) that court gives a certificate to the effect that the petition sets out facts from which it may be determined that the person owes a duty of support; and
(c) the Secretary has received certified copies of the petition and the certificate, together with a copy of the provisions of the law of the State or Territory to which the petition and certificate relate; and
(d) there are reasonable grounds for believing that the person is ordinarily resident in, present in, or proceeding to, Australia.
(2) The Secretary must make an application calling on the person claimed in the petition to owe a duty of support to show cause why an order in the same terms as the order sought in the petition should not be made.
Note: For application, see regulation 3.
(3) The Secretary must serve a copy of the application on the person.
Note: Service is dealt with by the applicable Rules of Court.
(4) In this regulation, a reference to a duty of support is a reference to a duty of support within the meaning of the law under which the relevant petition is filed in a State or Territory of the United States of America.
28D Hearing of applications based on United States petitions
(1) This regulation explains what may happen on the hearing of an application under subregulation 28C(2).
(2) It is open to the respondent to raise any ground of opposition that the respondent:
(a) could have raised to the petition in the relevant court in the United States of America; or
(b) could raise in proceedings in relation to the provision of maintenance in a court having jurisdiction under the Act in Australia.
(3) A court must not determine the application if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Registration and Collection) Act 1988, for administrative assessment of child support (within the meaning of the Child Support (Assessment) Act 1989) by a person seeking payment of child support for the child from the respondent.
(4) Subregulation (3) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.
(5) The court may:
(a) make an order for the provision of maintenance in the terms of the order sought in the petition (with or without modification); or
(b) refuse to make an order; or
(c) adjourn the proceedings and remit the petition and certificate to the court in which the petition was originally filed with a request that that court take further evidence and further consider the certifying of the petition.
(6) In this regulation:
certificate means a certificate mentioned in paragraph 28C(1)(b).
28E Effect of orders about United States petitions
(1) An order that is made under regulation 28D may specify:
(a) the time or times by which the money payable under the order is to be paid; and
(b) the person, authority or court to whom or to which that money is to be paid; and
(c) where necessary, the means by which that money must be paid.
(2) If the court adjourns the proceedings under paragraph 28D(5)(c), the court may make a temporary order for periodic payments by the respondent.
(3) As soon as practicable after the court makes or refuses to make an order under this regulation, the Secretary must give notice of the decision to the court in which the petition was filed or other authority in the United States of America which caused the petition to be sent to the Secretary.
(4) In this regulation:
petition means a petition mentioned in paragraph 28C(1)(a).
29 Power to make provisional order against person in reciprocating jurisdiction
(1) If a court is satisfied that a respondent to an application for a maintenance order is resident in, or on the way to, a reciprocating jurisdiction, the court may make an order in the absence of the respondent.
(2) Subregulation (1) applies even if the respondent has not been served with the application and has not consented to the order.
(3) The court can make any order that it could have made under subregulation (1) if the application had been served on the respondent and the respondent had failed to appear at the hearing of the application.
(4) A court must not make an order under subregulation (1) if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Registration and Collection) Act 1988, for administrative assessment of child support (within the meaning of the Child Support (Assessment) Act 1989) by a person seeking payment of child support for the child from the respondent.
(5) Subregulation (4) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.
(6) An order under subregulation (1) is:
(a) provisional; and
(b) of no effect:
(i) unless it is expressed to be provisional; and
(ii) unless and until confirmed (either with or without modification) by a competent court in a reciprocating jurisdiction or a jurisdiction with restricted reciprocity in which the respondent is resident at the time of confirmation.
29A Dealing with provisional order against person in reciprocating jurisdiction
(1) This regulation applies if a court makes an order under subregulation 29(1).
(2) The relevant Registrar of the court must send to the Secretary:
(a) a copy of the depositions of the witnesses; and
(b) 3 certified copies of the order; and
(c) a statement of the grounds on which the making of the order could have been opposed if the respondent had appeared at the hearing; and
(d) the information and material (if any) which the relevant Registrar has for working out the identity and whereabouts of the respondent.
(3) The Secretary must, on receipt of the documents and information mentioned in subregulation (2), send them to a court in the jurisdiction in which the respondent is resident or to which the respondent is proceeding, with a request in writing that proceedings be started for the confirmation and enforcement of the provisional order.
29B Taking of further evidence
(1) If a court in a reciprocating jurisdiction remits an order sent to it under subregulation 29A(3) to the court in which the order was made for the taking of further evidence, the court must take the evidence, and must cause the depositions of the witnesses to be sent to the court in the reciprocating jurisdiction.
(2) Before taking the evidence, notice must be given to such persons and in such manner as the court thinks fit.
(3) If, on the taking of further evidence, it appears that the order ought not to have been made, the court may revoke the order or may make a fresh provisional order under subregulation 29(1).
(4) A court that takes evidence because of a request made under subregulation (1) may, for subregulation (3), have regard to the evidence given in that other court.
29C Confirmation of provisional order against person in reciprocating jurisdiction
(1) This regulation applies if a court in a reciprocating jurisdiction in which the respondent is resident for the time being confirms (either with or without modification) an order made under regulation 29.
(2) The order has effect in Australia as so confirmed.
(3) In proceedings arising out of or relating to the order, it must be presumed, unless the contrary is proved, that the respondent was resident in the overseas jurisdiction at the time the order was confirmed.
30 Proceedings for enforcement of overseas maintenance entry liabilities
(1) This regulation is about enforcement proceedings for an overseas maintenance entry liability.
(2) Proceedings may be taken as if the liability were an order made under Part VII or VIII of the Act.
(3) The Act, these Regulations and the applicable Rules of Court, so far as they are applicable, and with such modifications as are necessary, apply in relation to the proceedings.
(4) Proceedings may be taken:
(a) by the person who would be entitled to take proceedings if the liability were an order under Part VII or VIII of the Act, as mentioned in subregulation (2); or
(b) by the Secretary, on behalf of the person.
31 Cancellation of registration in reciprocating jurisdiction
(1) Where:
(a) a maintenance order made in Australia is, under the law of a reciprocating jurisdiction or a jurisdiction with restricted reciprocity, enforceable in that jurisdiction; and
(b) the court in which the order was made is satisfied that there are reasonable grounds for believing that the person against whom the order was made is not resident in, or proceeding to, that reciprocating jurisdiction, or it appears to the court that there is some good reason why the order should no longer be enforceable in that jurisdiction;
the court may direct that steps be taken to cancel the registration of the order in that jurisdiction.
(2) Where a court directs under subregulation (1) that steps be taken to cancel the registration of an order in a jurisdiction, the relevant Registrar of that court shall send to an appropriate authority in that jurisdiction a request in writing that the order be no longer enforceable in that jurisdiction.
(3) Where a court directs under subregulation (1) that steps be taken to cancel the registration of an order in a jurisdiction, the order shall cease to be enforceable in that jurisdiction for the purposes of these Regulations.
32 Cancellation of registration of overseas maintenance orders
(1) Where:
(a) an overseas maintenance order is registered or confirmed under these Regulations; and
(b) the court in which the order is registered or confirmed receives a request in writing made by the court that made the order or some other competent authority in the overseas jurisdiction that the order be made no longer enforceable in Australia;
the first‑mentioned court shall direct its relevant Registrar to cancel the registration of the order by noting the fact and date of the cancellation on the certified copy of the order filed in the court.
(2) Upon the cancellation of the registration of an overseas maintenance order, the order ceases to be enforceable in Australia.
(3) Where the relevant Registrar of a court cancels the registration of an overseas maintenance order in pursuance of a request in writing having been received from a court or authority referred to in paragraph (1)(b), the relevant Registrar shall cause notice in writing of the fact that the registration has been cancelled, and of the date of the cancellation, to be given to the person who was required to make payments under the order.
(4) In this regulation:
registered means registered before 1 July 2000.
34 Cancellation of registration of overseas maintenance agreements
(1) Where:
(a) an overseas maintenance agreement is registered under these Regulations; and
(b) the court in which the agreement is registered receives a request in writing from:
(i) the parties to the agreement; or
(ii) the court or other authority in the prescribed overseas jurisdiction an officer of which signed the certificate for the agreement mentioned in paragraph 33(2)(b) as in force before 1 July 2000;
that the agreement be no longer enforceable in Australia;
the first‑mentioned court shall direct its relevant Registrar to cancel the registration of the agreement by noting the fact and date of cancellation on the certified copy of the agreement filed in the court.
(2) Upon the cancellation of the registration of an overseas maintenance agreement under subregulation (1), the agreement ceases to be enforceable in Australia.
(3) Where the relevant Registrar of a court cancels the registration of an overseas maintenance agreement in pursuance of a request in writing having been received from a court or authority referred to in subparagraph(1)(b)(ii), the relevant Registrar shall cause notice in writing of the fact that the registration has been cancelled, and of the date of the cancellation, to be given to the person who was required to make payments under the agreement.
(4) In this regulation:
registered means registered before 1 July 2000.
36 Party in Australia may apply to vary etc overseas maintenance order, agreement or liability
(1) This regulation applies to:
(a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and
(b) an overseas maintenance entry liability or a registered maintenance liability.
(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be applied to determination of an application is the law in force in Australia under the Act.
37 Discharge etc of overseas maintenance order or liability made in absence of party
(1) This regulation applies to an application that is made under subregulation 36(1) if:
(a) the applicant is the person against whom an overseas maintenance order was made or the person who is liable to make payments because of a liability mentioned in paragraph 36(1)(b); and
(b) the applicant did not have notice of the proceedings giving rise to the order or liability, did not appear in those proceedings and did not consent to the making of the order or to the creation of the liability; and
(c) the application is made within 6 months after the applicant was given notice that the order or liability is enforceable in Australia.
(2) On the hearing of the application, the applicant may raise any matter that the applicant could have raised under Part VII or VIII of the Act if the proceedings giving rise to the order or to the liability had been heard in Australia.
38 Variation etc orders—status
(1) An order made under regulation 36 is provisional if the relevant reciprocating jurisdiction is one of the following jurisdictions:
Brunei, Canadian Provinces and Territories mentioned in Schedule 2, Territory of Christmas Island, Territory of Cocos (Keeling) Islands, Cook Islands, Cyprus, Fiji, Gibraltar, Hong Kong, India, Republic of Ireland, Kenya, Malawi, Malaysia, Malta, Nauru, New Zealand, Papua New Guinea, Sierra Leone, Singapore, South Africa, Sri Lanka, Tanzania, Trinidad and Tobago, United Kingdom, including the Channel Islands mentioned in Schedule 2.
(2) Such an order is final if the reciprocal jurisdiction is any other jurisdiction.
Note: For reciprocating jurisdiction, see regulation 24A.
38A Making and effect of provisional variation etc orders
(1) This regulation applies if an order mentioned in subregulation 38(1) is provisional.
(2) The order is of no effect:
(a) unless it is expressed to be provisional; and
(b) unless and until it is confirmed (either with or without modification) by a competent court of the reciprocating jurisdiction in which the overseas maintenance order affected by the provisional order was made (the foreign court).
(3) The order may be made even though the respondent has not been served with the application and has not consented to the order proposed in the application.
Note: For application, see regulation 3.
(4) The relevant Registrar of the court making the order must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the Secretary.
(5) The Secretary must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the foreign court.
(6) If the foreign court confirms the order (with or without modification), the order has effect in Australia as so confirmed.
38B Taking of further evidence
(1) If the foreign court remits an order mentioned in subregulation 38(1) for the taking of further evidence, the court to which the order has been remitted (the receiving court), after giving notice under subregulation (3), must take the evidence.
(2) The relevant Registrar of the receiving court must send a copy of the depositions of the witnesses whose evidence is taken under subregulation (1) to the foreign court.
(3) The receiving court must give notice of the taking of further evidence to the applicant for the order and to any other person the court thinks fit.
(4) The notice may be given in such manner as the court thinks fit.
(5) If, upon taking the further evidence, it appears to the court that the order ought not to have been made, the court may revoke the order and may make a new order.
39 Confirmation of variations made provisionally in reciprocating jurisdiction
(1) This regulation applies if the Secretary receives:
(a) a certified copy of a provisional order made by a court in a reciprocating jurisdiction varying, discharging, suspending or reviving a maintenance order:
(i) made in Australia and enforceable in that jurisdiction; or
(ii) made in that jurisdiction and enforceable in Australia; and
(b) a copy of the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made.
(2) The Secretary must apply to a court for an order confirming the provisional order.
(3) The Secretary must serve a copy of the application on the respondent.
Note: Service is dealt with by the applicable Rules of Court.
(4) The court may:
(a) confirm the provisional order (with or without modification); or
(b) discharge the provisional order; or
(c) adjourn the proceedings and remit the provisional order to the court that made it with a request that the court take further evidence and further consider its provisional order.
(5) A provisional order that is confirmed under this regulation (whether with or without modification) has effect in Australia as if it were an order made by a court having jurisdiction under the Act.
(6) In this regulation, a reference to a provisional order includes a reference to a provisional variation of:
(a) an Australian maintenance agreement; or
(b) an overseas maintenance agreement.
Part IIIB—Parentage
39B Extension of provisions of Act
(1) Subdivisions D (except subsection 69U(3)) and E of Division 12 of Part VII of the Act apply, subject to this regulation, to proceedings for the purposes of an international agreement or arrangement with a reciprocating jurisdiction or a jurisdiction mentioned in Schedule 4.
(2) For subregulation (1), each reciprocating jurisdiction and each jurisdiction mentioned in Schedule 4 is a prescribed overseas jurisdiction.
(3) Matters mentioned in this regulation are taken to be matters arising under the Act for the purposes of the application of section 69H of the Act in relation to those matters.
(4) Despite subsections 69S(1) and 69U(3) of the Act, the presumption of parentage provided for by subsection 69S(1) is taken, for these Regulations, to be rebuttable under subsection 69U(1) of the Act.
Note: Subsection 69U(3) is not extended by subregulation (1).
39BA Jurisdictions
For subsections 69S(1A) and 69XA(4) of the Act, a country mentioned in Schedule 4 or 4A is a jurisdiction.
Part IIIC—Jurisdiction of courts and related matters
39BB Certain jurisdiction of Federal Circuit and Family Court of Australia (Division 2) must not be exercised in States and Territories
(1) For subsection 40(1) of the Act, from 1 September 2021 the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) must not be exercised in relation to proceedings referred to in paragraph 132(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 in the following States and Territories:
(a) New South Wales;
(b) Victoria;
(c) Queensland;
(d) Western Australia;
(e) South Australia;
(f) Tasmania;
(g) Australian Capital Territory;
(h) Northern Territory;
(i) Norfolk Island;
(j) Territory of Christmas Island;
(k) Territory of Cocos (Keeling) Islands.
(2) For the purposes of subsection 40(1) of the Act, from 1 September 2021, the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) must not be exercised in Western Australia, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands in relation to the following:
(a) matters arising under the Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under the Act;
(b) matters arising under the Act in respect of which de facto financial causes are instituted under the Act;
(c) matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act;
(d) matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Federal Circuit and Family Court of Australia (Division 2) under the Act or any other Act;
(e) proceedings under the following provisions of the Act:
(i) subsection 39(5);
(ii) paragraph 39B(1)(a).
39C Jurisdiction of courts
To the extent that subsections 39(5) and (6) and section 69H of the Act do not invest the courts of a State or Territory mentioned in those provisions with federal jurisdiction, or confer jurisdiction on a federal court mentioned in those provisions, for proceedings mentioned in Part III or IIIB, the relevant courts are invested with jurisdiction, or jurisdiction is conferred on them for those proceedings, by this regulation.
Note: Subsection 124A(2) of the Act authorises the making of regulations conferring jurisdiction on a court or investing a court with jurisdiction.
39D Convention countries
For section 117AC of the Act, a country listed in Schedule 4A is a convention country.
Part IV—Convention on recovery abroad of maintenance
40 Interpretation of Part IV
(1) In this Part, unless the contrary intention appears:
Convention means the Convention on the Recovery Abroad of Maintenance, referred to in section 111 of the Act, a copy of the English text of which is set out in Schedule 3.
convention country means a country that under regulation 48 is a convention country.
Receiving Agency has the meaning it has in the Convention.
Transmitting Agency has the meaning it has in the Convention.
(2) In this Part, unless the contrary intention appears:
(a) a reference to payment of money for the maintenance of a child includes a reference to payment of money for the education of that child; and
(b) a reference to proceedings under this Part in a court includes a reference to proceedings on appeal from original proceedings under this Part.
(3) The purpose of this Part is to give effect to section 111 of the Act.
45 Immunity of Secretary from orders to pay costs
The Secretary must not be made subject to any order to pay costs over the exercise of powers or performance of functions given to the Secretary under these Regulations.
Note: Secretary includes a person authorised to perform a function: see regulation 3.
48 Convention countries
For the purposes of this Part, each of the following countries is a convention country:
(a) a country specified in Schedule 4;
(b) any other country in respect of which the Convention has entered into force for Australia.
50 Applications by persons in convention countries for recovery of maintenance under Commonwealth, State or Territory law
(1) This regulation applies if:
(a) the Secretary receives from a Transmitting Agency in a convention country an application for:
(i) recovery of maintenance that a person claims is required, under a law of the Commonwealth or of a State or Territory, to be paid by another person; or
(ii) variation of an existing order for maintenance; and
(b) there are no reasonable grounds for believing that the other person is not subject to the jurisdiction of the Commonwealth or of a State or Territory.
(2) The Secretary may do anything required to be done on behalf of the claimant by a Receiving Agency under the Convention to recover the maintenance.
(3) Things that may be done by the Secretary do not include registration or enforcement of an order mentioned in, or sought by, the application.
(4) However, an Australian court may, in proceedings under this Part, have regard to the application and the record of proceedings of a court that made any order to which the application relates.
(5) This regulation does not affect the operation of Part III of these Regulations.
50A Proceedings on behalf of persons in convention countries for recovery of maintenance
(1) This regulation applies to proceedings under this Part in a court on behalf of a claimant.
(2) The court must proceed as if the claimant were before the court.
(3) A court must not make a maintenance order in proceedings under this Part if an application could properly be made at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Registration and Collection) Act 1988, for administrative assessment of child support (within the meaning of the Child Support (Assessment) Act 1989) by a person seeking payment of child support for the child from the respondent.
(4) Subregulation (3) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.
(5) The Secretary may do anything that is required or authorised to be done by an applicant in proceedings in that court in relation to maintenance.
(6) In any document to be filed in, or issued out of, the court, the Secretary may be described as the Secretary of the Attorney‑General’s Department acting on behalf of the claimant whose name must be set out in the document.
50B Return of applications
(1) If, in relation to an application mentioned in subregulation 50(1) received from a Transmitting Agency in a convention country, a summons or other document that requires the other person mentioned in that subregulation to appear in proceedings under this Part cannot be served on the other person, the Secretary must send to that Agency a statement giving whatever information the Secretary has been able to obtain concerning the whereabouts of that other person and must return the application to that Agency.
(2) For section 89A of the Act, the office of Secretary is a prescribed office.
(3) Subregulation (2) does not limit the functions of the Secretary under this Part.
51 Certain requests to be made only with leave of court
Notwithstanding any other provision of these Regulations, in order to prevent proceedings under this Part from being unduly protracted a respondent must not seek, without leave of the court:
(a) a request for answers to specific questions; or
(b) a request to make discovery of documents; or
(c) a notice to produce documents; or
(d) a notice to admit facts or documents.
53 Taking of evidence at request of appropriate authority in convention countries
(1) This regulation applies if the Secretary receives a request from the appropriate authority to obtain evidence concerning specified matters about an application under the law of a convention country:
(a) to recover maintenance from another person; or
(b) to the variation of an order made in that country for payment of maintenance by another person;
where the person is subject to the jurisdiction of that country.
(2) The Secretary and any court exercising jurisdiction under the Act must do anything required to be done under the Convention to obtain the evidence.
(3) When the evidence is obtained, the Secretary must send a certified copy of a record of the evidence to the appropriate authority.
(4) If under subregulation (2), the Secretary requests a court to take evidence for the proceedings mentioned in subregulation (1), the court must give notice of the time when, and the place where, the evidence is to be taken to:
(a) the Secretary; and
(b) the person from whom the maintenance is claimed; and
(c) the appropriate authority.
(5) The notice must be sufficient, in the opinion of the court, to enable the parties to the proceedings to attend or be represented at the taking of the evidence.
(6) In this regulation:
appropriate authority, in relation to a request to obtain evidence for proceedings in a convention country, means:
(a) the Transmitting Agency for that country under the convention; or
(b) a court in that country; or
(c) if the request is made through the Child Support Registrar, that Registrar.
54 Obtaining evidence in convention countries for purposes of proceedings under this Part
(1) In proceedings under this Part in a court on behalf of a claimant in a convention country, the court may require the Secretary or an authorized person to request the Transmitting Agency in the convention country to obtain evidence required for the proceedings.
(2) A requirement by a court under this regulation shall set out:
(a) the names and addresses of the claimant and respondent in the proceedings;
(b) the name and address of any person whose evidence is to be taken; and
(c) the matters concerning which evidence is required.
(3) The Secretary shall transmit to the Transmitting Agency in the convention country a request that the Secretary has been required under this regulation to make and shall request the Agency to give the Secretary and the respondent in the proceedings notice of the time when, and place where, the evidence is to be taken in order that the respondent may attend, or be represented at, the taking of the evidence.
(4) Nothing in this regulation affects the power of a court to order or request the taking of evidence within or outside Australia.
55 Admissibility of evidence given in convention countries
In a proceeding under this Part in a court, a statement contained in a document that purports:
(a) to set out or summarise evidence given in a proceeding in a court in a convention country and to have been signed by the person before whom the evidence was given; or
(b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding under this Part (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or
(c) to have been received as evidence in a proceeding in a court in a convention country and to have been signed by a judge or other officer of the court;
is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact is admissible in the proceeding, without proof of the signature of the person purporting to have signed it or of the official position of that person.
56 Orders of court in convention countries
In proceedings under this Part in a court, a document purporting to be an order, or a copy of an order, of a court in a convention country and to have been signed by a judge or other officer of the court is admissible as evidence of that order without proof of the signature of the person purporting to have signed it or of the official position of that person.
Part V—Arbitration
67A Definitions for Part V
In this Part, unless the contrary intention appears:
arbitration means arbitration under section 13E of the Act or relevant property or financial arbitration.
arbitration agreement means an agreement made under regulation 67F between the parties to an arbitration.
67B Prescribed requirements for arbitrator (Act s 10M)
(1) For the purposes of the definition of arbitrator in section 10M of the Act, this regulation prescribes the requirements that must be met for a person to be an arbitrator.
Requirement for name to be included in list of arbitrators
(2) The person’s name must be included in a list (the list), kept by the Law Council of Australia or by another body nominated by the Law Council of Australia, of persons who are prepared to provide arbitration services under the Act.
(3) At the time of applying to be included in the list, the person must give a statutory declaration to the body keeping the list to the effect that the person meets the requirements mentioned in subregulation (4).
Requirements to be met to become an arbitrator
(4) During the 6‑year period ending immediately before the time the person applies to be included in the list:
(a) the person must have, for at least 5 of those years:
(i) practised as a legal practitioner; or
(ii) held office as a judge or magistrate of one or more of the courts mentioned in subregulation (5); or
(iii) either practised as a legal practitioner or held such office; and
(b) the person must have, for at least 5 of those years, spent at least 25% of the person’s time in such practice or office on family law matters; and
(c) the person must have gained the necessary experience in family law matters that is sufficient for the person to be an arbitrator; and
(d) the person must have successfully completed specialist arbitration training conducted by a tertiary institution or a professional association of arbitrators.
(5) For subparagraph (4)(a)(ii), the courts are the following:
(a) the Federal Circuit and Family Court of Australia (Division 1);
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) the Family Court of Western Australia;
(d) the Magistrates Court of Western Australia constituted by a magistrate who is not a Family Law Magistrate of Western Australia, sitting at a place outside the metropolitan region (within the meaning of the Family Court Act 1997 (WA));
(e) the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, sitting at any place in Western Australia;
(f) the former Family Court of Australia;
(g) the former Federal Circuit Court of Australia.
Note: For the definition of Family Law Magistrate of Western Australia, see subsection 4(1) of the Act.
Requirements to be met to continue to be an arbitrator
(6) During the 2‑year period beginning on the day mentioned in subregulation (7), and during each subsequent 2‑year period:
(a) the person must complete at least 10 hours of continuing professional development; and
(b) at least 25% of the person’s practice as a legal practitioner must be in relation to family law matters; and
(c) the person must maintain the necessary experience in family law matters that is sufficient for the person to be an arbitrator.
(7) For subregulation (6), the day is:
(a) if, immediately before 1 August 2024, the person’s name is included in the list—1 August 2024; or
(b) otherwise—the day the person’s name is included in the list.
(8) Within a month of the end of each 2‑year period mentioned in subregulation (6), the person must give a statutory declaration to the body that keeps the list to the effect that the person has met the requirements of that subregulation for that period.
Continuing professional development
(9) For paragraph (6)(a), continuing professional development undertaken in a State or Territory by a person who does not hold a practising certificate must be of at least a similar standard to the continuing professional development required to be undertaken, in that State or Territory, as a condition of a legal practitioner’s practising certificate.
67C Matters that may not be arbitrated
A Part VIII proceeding, a part of a Part VIII proceeding, or a matter arising in a Part VIII proceeding, with respect to property to which an approved maintenance agreement under section 87 of the Act applies, must not be dealt with by arbitration under the Act.
67D Application for referral to arbitration (Act s 13E)
An application for an order under section 13E of the Act in relation to a Part VIII proceeding, a part of a Part VIII proceeding, or a matter arising in a Part VIII proceeding, must be:
(a) in accordance with Form 6; and
(b) made jointly by all parties to the proceeding; and
(c) accompanied by a financial statement in accordance with the applicable Rules of Court.
67E Application relating to relevant property or financial arbitration (Act s 13F)
(1) An application, under section 13F of the Act, for an order to facilitate the effective conduct of the relevant property or financial arbitration of a dispute must be in accordance with Form 7.
(2) For the avoidance of doubt, an application may be made:
(a) by a party to the arbitration; or
(b) jointly by all parties to the arbitration.
67F Arbitration agreement
(1) The parties to an arbitration may make an agreement in relation to the arbitration (an arbitration agreement).
(2) An arbitration agreement must:
(a) be in writing; and
(b) set out the information mentioned in subregulation (3) in relation to the arbitration; and
(c) give details of the arrangements agreed by the parties in relation to the payment of the costs of the arbitration; and
(d) include a statement to the effect that each party agrees to pay his or her agreed share of the costs of the arbitration within 28 days, or another specified period agreed by the parties and the arbitrator, after an award has been made; and
(e) be signed by each party to the arbitration.
(3) For paragraph (2)(b) the information is as follows:
(a) the name, address and contact details of each party to the arbitration;
(b) the name of the arbitrator;
(c) the date, time and place at which the arbitration is to be conducted;
(d) the issues to be dealt with in the arbitration;
(e) the estimated time needed for the arbitration;
(f) information about how the arbitration will be conducted (for example, information about the exchange of documents and witness statements, scheduling and receiving expert evidence);
(g) the circumstances in which the arbitration may be suspended or terminated;
(h) the estimated costs of the arbitration, including the costs of any disbursements that may be incurred in respect of the arbitration (for example, hire of a venue for the arbitration).
67G Notice of arbitration
(1) This regulation does not apply if the parties to an arbitration have made an arbitration agreement in relation to the arbitration.
(2) Before conducting an arbitration, the arbitrator must give to each party to the arbitration a written notice setting out:
(a) the information mentioned in subregulation 67F(3) in relation to the arbitration; and
(b) in relation to the costs of the arbitration, information explaining the effect of regulation 67H.
(3) The notice must also state that any party to the arbitration may attend, and be heard at, the arbitration.
(4) The notice must be given at least 28 days before the arbitration is conducted, unless the parties have agreed on another period of notice.
67H Costs of arbitration
(1) The costs of an arbitration are to be shared equally between the parties to the arbitration unless the parties agree, in writing, otherwise.
(2) If the parties have not made an arbitration agreement, each party must inform the arbitrator, in writing, before the arbitration starts, that he or she agrees to pay his or her equal or agreed share of the costs of the arbitration, within 28 days, or another period agreed by the parties and the arbitrator, after an award has been made.
(3) If the parties have not made an arbitration agreement, and do not comply with subregulation (2), the arbitrator must:
(a) proceed no further with the arbitration; and
(b) for an arbitration under section 13E of the Act, refer the matter to the court that ordered the arbitration.
67I Duties of arbitrator
(1) In an arbitration, an arbitrator must determine the issues in dispute between the parties to the arbitration in accordance with the Act.
(2) An arbitrator must conduct an arbitration with procedural fairness (for example, giving each party to the arbitration a reasonable opportunity to be heard and to respond to anything raised by another party).
(3) An arbitrator must inform each party, in writing, if during the arbitration, the arbitrator becomes aware of anything that could lead to direct or indirect bias in favour of or against any party.
67J Oath or affirmation by arbitrator
An arbitrator must, before acting in the capacity of an arbitrator, make an oath or affirmation in the following form:
I [name of arbitrator] do swear by Almighty God [or solemnly and sincerely affirm and declare] that I will not disclose to any person any communication or admission made to me in my capacity as arbitrator, unless I reasonably believe that it is necessary for me to do so:
(a) to protect a child; or
(b) to prevent or lessen a serious and imminent threat to:
(i) the life or health of a person; or
(ii) the property of a person; or
(c) to report the commission, or prevent the likely commission, of an offence involving:
(i) violence or a threat of violence to a person; or
(ii) intentional damage to property of a person or a threat of damage to property; or
(d) to enable me to discharge properly my functions as an arbitrator; or
(e) if a child is separately represented by a person under an order under section 68L of the Act—to assist the person to represent the child properly.
67K Suspension of arbitration—failure to comply with direction
If a party to an arbitration does not comply with a procedural direction given by the arbitrator, the arbitrator:
(a) may suspend the arbitration; and
(b) if the failure to comply exceeds 28 days, must, for an arbitration under section 13E of the Act, refer the matter to the court that ordered the arbitration.
67L Termination of arbitration—lack of capacity
(1) If an arbitrator considers that a party to an arbitration does not have the capacity to take part in the arbitration, the arbitrator must:
(a) terminate the arbitration; and
(b) for an arbitration under section 13E of the Act, refer the matter to the court that ordered the arbitration.
(2) For subregulation (1), a person who is a party to an arbitration does not have the capacity to take part in the arbitration if:
(a) the person does not understand the nature and possible consequences of the arbitration; or
(b) the person is not capable of:
(i) giving adequate instruction to his or her representative for the conduct of the arbitration; or
(ii) satisfactorily appearing in person in the arbitration.
67M Appearance in arbitration
In an arbitration, a party may appear in person, or be represented by a legal practitioner.
67N Attendance of persons to give evidence
(1) An arbitrator conducting an arbitration may require a person (whether a party to the arbitration or not):
(a) to attend the arbitration to give evidence; or
(b) to produce documents; or
(c) to attend the arbitration to give evidence and produce documents.
(2) A party to an arbitration may apply to the court for the issue of a subpoena requiring a person (whether a party to the arbitration or not):
(a) to attend the arbitration to give evidence; or
(b) to produce documents; or
(c) to attend the arbitration to give evidence and produce documents.
(3) An application under subregulation (2) must be made in accordance with the applicable Rules of Court.
Note: If a person does not comply with a requirement under subregulation (1), or a subpoena issued under subregulation (2), in relation to an arbitration, a court may make such orders as it considers appropriate to facilitate the effective conduct of the arbitration—see subsection 13E(2) of the Act in relation to arbitration under section 13E of the Act, and section 13F of the Act in relation to relevant property and financial arbitration.
67O Application of rules of evidence
(1) Subregulation (2) applies to an arbitration if all parties to the arbitration consent to its application.
(2) In conducting an arbitration, an arbitrator is not bound by the rules of evidence but may inform himself or herself on any matter in any way that he or she considers appropriate.
67P Making an award
(1) At the end of an arbitration, the arbitrator must make an award.
(2) The award must include a concise statement setting out:
(a) the arbitrator’s reasons for making the award; and
(b) the arbitrator’s findings of fact in the matter, referring to the evidence on which the findings are based.
(3) The award must:
(a) be mechanically or electronically printed; and
(b) be contained in a single document.
(4) The arbitrator must:
(a) give a copy of the award to each party to the award; and
(b) if the award was made in an arbitration under section 13E of the Act—inform the court that ordered the arbitration that:
(i) the arbitration has ended; and
(ii) an award has been made in relation to all, or part, of the proceeding to which the arbitration relates.
67Q Registration of award (Act s 13H)
(1) For section 13H of the Act, an application to register an award made in an arbitration must be in accordance with Form 8.
(2) The applicant must serve a copy of the application on each other party to the award.
(3) A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered.
Note: An example of a way of bringing a matter to the attention of the court is by filing an affidavit.
(4) If nothing is brought to the court’s attention under subregulation (3), the court must register the award.
(5) If a party brings a matter to the court’s attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award.
Note: For the effect of registration, see subsection 13H(2) of the Act.
67R Notice of registration of award
(1) If a court registers an award, the court must give notice of the registration to each party to the award.
(2) The notice must state:
(a) the date when the award was registered; and
(b) the place where the award was registered.
67S Enforcement of registered awards
A party to a registered award may apply for enforcement of the award as if the award were an order made under Part VIII of the Act.
67T Registration of decree affecting registered award
(1) If a decree is made by a court under section 13J or 13K of the Act in relation to a registered award, the party who registered the award must apply for registration of the decree in the court in which the award is registered.
(2) The application must be in accordance with Form 9.
Part VI—Application, saving and transitional provisions
80 Savings in relation to the former Regulations
(1) Subject to subregulations (4) and (5), proceedings pending or orders or directions made, appointments made or authorizations given, documents filed or served, or any other act or thing done, before the commencement of these Regulations, in accordance with the former Regulations, shall, if of a kind to which these Regulations or the standard Rules of Court apply, be treated as if pending, made, given, filed, served, or done, as the case requires, in accordance with these Regulations or those Rules, as the case requires.
(2) Subject to subregulations (4) and (5), an obligation incurred or undertaking given under the former Regulations before the commencement of these Regulations if of a kind to which these Regulations or the standard Rules of Court apply shall be treated as if incurred or given under these Regulations or the standard Rules of Court, as the case requires.
(3) Subject to subregulations (4) and (5), where a person has, before the commencement of these Regulations, omitted to do any act or thing in accordance with the former Regulations and the act or thing is one to which these Regulations apply, the act or thing shall be treated as if omitted to be done under these Regulations unless subsequently done in accordance with these Regulations.
(4) These Regulations do not operate to revive any period of time for the doing of any act or thing, being a period of time which, under the former Regulations, had expired before the commencement of these Regulations.
(5) A period of time that commenced under the former Regulations but had not expired before the commencement of these Regulations shall, if the matter in respect of which that period has commenced is a matter to which these Regulations apply, continue as if these Regulations had not come into operation.
81 Transitional matters in connection with Family Law Amendment Regulations 2000 (No. 2)
(1) The former Regulations continue in force in relation to:
(a) pending proceedings; and
(b) acts or things that have been done, or that may or must be done, in accordance with those Regulations.
(2) An act or thing that may or must be done by the Controller or an authorised person under Part IV of the former Regulations, as continued in force, may or must be done by the Secretary.
(3) In this regulation:
former Regulations means the Family Law Regulations 1984 as in force immediately before 1 July 2000.
pending proceedings means proceedings that were started in accordance with the former Regulations before 1 July 2000 but were not completed before that date.
83 Transitional matters relating to Family Law Amendment Regulation 2012 (No. 4)
(1) Despite the amendments made by the Family Law Amendment Regulation 2012 (No. 4), these Regulations, as in force immediately before 1 January 2013, (the old Regulations) continue to apply to a fee for a service requested under the old Regulations before 1 January 2013, unless another transitional provision says otherwise.
(2) However, subregulation 11(9) of the old Regulations continues to apply to a setting‑down requested before 1 January 2013 only if the setting‑down fee (within the meaning given by the old Regulations) was paid before 1 January 2013.
84 Amendments made by the Family Law Amendment (Arbitration) Regulations 2024
(1) Subregulation 67B(3), as amended by Schedule 1 to the Family Law Amendment (Arbitration) Regulations 2024 (the amending instrument), applies on and after the commencement of that Schedule in relation to applications:
(a) made, but not decided, before that commencement; or
(b) made on or after that commencement.
(2) Subregulation 67B(4), as amended by Schedule 1 to the amending instrument, applies on and after the commencement of that Schedule in relation to persons who make applications mentioned in subregulation (1) of this regulation.
(3) To avoid doubt, a person meets the requirement in subregulation 67B(2) on the commencement of Schedule 1 to the amending instrument if, immediately before that commencement, the person’s name is included in the list mentioned in that subregulation.