Family Law Act. Australia

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СКАЧАТЬ not be appointed to that court except with the approval of the Attorney‑General of the Commonwealth; (b) Judges appointed to that court are by reason of training, experience and personality, suitable persons to deal with matters of family law and cannot hold office beyond the age of 70 years; and (c) appropriate family counselling and family dispute resolution services, and family consultants, will be available to that court.

      (4A) A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this subsection, have been instituted in a Family Court of a State, may apply to a Family Court of a State for an order transferring the proceedings to that Court, and the Court may order accordingly.

      (5) References in this Act or the standard Rules of Court to a court of summary jurisdiction shall not be read as including references to a court to which this section applies.

      42 Law to be applied (1) The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.

      (2) Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a State or Territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place.

      Note: Subdivision D of Division 4 of Part XIIIAA (Applicable law) may affect the law to be applied by a court.

      43 Principles to be applied by courts (1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure protection from family violence; and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

      (2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.

      44 Institution of proceedings (1) Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.

      (1A) Proceedings under this Act for: (a) a divorce order in relation to a marriage; or (b) a decree of nullity of marriage; may be instituted by either party to the marriage or jointly by both parties to the marriage.

      (1B) An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate: (a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is: (i) a family counsellor; or (ii) if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State — an individual or an organisation nominated for the parties by a family consultant; or (iii) if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State — an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and (b) signed by that person or on behalf of that organisation, as the case may be.

      (1C) Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may: (a) if the application has not been filed — give leave for the application to be filed; or (b) if the application has been filed — at any time before or during the hearing of the application, declare that it is so satisfied; and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.

      (2) Notwithstanding subsections (3) and (3A), a respondent may, in an answer to an application, include an application for any decree or declaration under this Act.

      (3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983: (a) a divorce order has taken effect; or (b) a decree of nullity of marriage has been made; proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after: (c) in a case referred to in paragraph (a) — the date on which the divorce order took effect; or (d) in a case referred to in paragraph (b) — the date of the making of the decree.

      The court may grant such leave at any time, even if the proceedings have already been instituted.

      (3AA) However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.

      (3A) Notwithstanding subsection (3), where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983: (a) a divorce order has taken effect or a decree of nullity of marriage has been made; and (b) the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked; proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted: (c) within the period of 12 months after: (i) the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or (ii) the date on which the approval of the maintenance agreement was revoked; whichever is the later; or (d) with the leave of the court in which the proceedings are to be instituted; and not otherwise.

      (3B) Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000: (a) a divorce order has taken effect or a decree of nullity of marriage has been made; and (b) a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA; proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted: (c) within the period of 12 months after the later of: (i) the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or (ii) the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or (d) with the leave of the court in which the proceedings are to be instituted; and not otherwise.

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