Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)SCHEDULE 5 - PROPERTY SETTLEMENT AND SPOUSAL MAINTENANCE PROCEEDINGS
This Schedule amends the Family Law Act 1975 to provide for the stay of family law property settlement and spousal maintenance proceedings where some or all of the property of one or both of the parties, is the subject of a forfeiture application or POC order under the PoC Bill 2002.
Family Law Act 1975
Item 1 This item inserts the definition of DPP into the Family Law Act 1975 ('the FL Act'). DPP means the Commonwealth Director of Public Prosecutions.
Item 2 This item inserts the definition of forfeiture application into the FL Act. A 'forfeiture application' is an application under the PoC Bill 2002 for either conviction- or civil-based forfeiture. It does not include an application for a PPO or literary proceeds order (LPO).
Item 3 This item defines 'proceeds of crime order', which is either a restraining order or forfeiture order under the PoC Bill 2002.
Item 4 This item defines 'property settlement or spousal maintenance proceedings' to include proceedings in relation to either the property of the parties to the marriage or either or them, or proceedings relating to the maintenance of a party to the marriage.
Item 5 This item inserts a definition of Registry Manager into the FL Act. This is a new position reflecting changes to the management structure of the Family Court. Registry Managers rather than Registrars carry out functions that are primarily administrative in nature.
Item 6 Item 7 inserts new paragraph 79A(1)(e). This item inserts the word 'or' after existing paragraph 79A(1)(d) to reflect the inclusion of the new paragraph.
Item 7 This item inserts a new paragraph into subsection 79A(1) of the FL Act.
The court has a discretion under section 79A to vary or set aside section 79 orders in prescribed circumstances. This item inserts an additional circumstance in which a property settlement order may be set aside by the court - where a proceeds of crime order has been made covering property of the parties to the marriage or either of them or that such an order has been made against one of the parties to the marriage.
This amendment ensures that where an earlier family law settlement is set aside by a proceeds of crime order the parties are able to have the property re-distributed.
Item 8 This item inserts three new sections into the FL Act after existing section 79A. The proposed sections apply where a proceeds of crime order or forfeiture application affects an application for an order or proceedings under Part VIII of the FL Act - there are similar provisions under Item 9 in relation to proceedings under Part VIIIA of the FL Act.
Proposed section 79B Notification of proceeds of crime orders etc
This provision imposes an obligation on the parties to a marriage who are instituting property settlement or spousal maintenance proceedings under Part VIII of the FL Act to disclose in the application the existence of a relevant forfeiture application or proceeds of crime order.
The obligation to disclose is on-going. If there are no relevant proceeds of crime proceedings on foot at the time that the relevant family law proceedings are commenced, or the parties are not aware of any proceedings, but are later notified by the DPP that such proceedings have been commenced, the person notified by the DPP must notify the Registry Manager in writing.
Failure to make the disclosure at either time is an offence, punishable by a fine of 50 penalty units.
The effect of this disclosure is to stay the property or spousal maintenance proceedings until the relevant proceeds of crime proceedings are finalised. This ensures that property which may be forfeited under the PoC Bill 2002 is not dealt with by a court in property settlement or spousal maintenance proceedings.
Proposed section 79C Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.
This proposed section provides that property settlement or spousal maintenance proceedings are stayed either on notification by either party pursuant to proposed section 79B or on the application of the DPP.
Proposed section 79D Lifting a stay
A stay may be lifted either wholly or in part by the court that ordered the stay if either party to the proceedings makes an application and the DPP consents. It may be appropriate to lift the stay where only a small portion of the property of the marriage is affected by the proceeds of crime proceedings and the parties wish to continue with the family law action.
It is appropriate for the consent of the DPP to be needed for a stay to be lifted, as the DPP is best placed to know whether proceeds of crime proceedings are finalised or whether there will be some further claim on the property.
Item 9 This item inserts three new sections into the FL Act at the end of Part VIIIA. The proposed sections apply to proceedings under Part VIIIA of the FL Act - there are similar provisions under Item 8 in relation to where an application is made under Part VIII of the FL Act.
Proposed section 90M Notification of proceeds of crime orders etc
This provision imposes an obligation on the parties to proceedings under Part VIIIA of the FL Act to disclose in the application the existence of a relevant forfeiture application or proceeds of crime order.
The obligation to disclose is on-going. If there are no relevant proceeds of crime proceedings on foot at the time that the relevant family law proceedings are commenced, or the parties are not aware of any proceedings, but are later notified by the DPP that such proceedings have been commenced, the person notified by the DPP must notify the Registry Manager in writing.
Failure to make the disclosure at either time is an offence, punishable by a fine of 50 penalty units.
The effect of this disclosure is to stay the property or spousal maintenance proceedings until the relevant proceeds of crime proceedings are finalised. This ensures that property which may be forfeited under the PoC Bill 2002 is not dealt with by a court in property settlement or spousal maintenance proceedings.
Proposed section 90N Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.
This proposed section provides that property settlement or spousal maintenance proceedings are stayed either on notification by either party pursuant to proposed section 79B or on the application of the DPP.
Proposed section 90P Lifting a stay
A stay may be lifted either wholly or in part by the relevant court if either party to the proceedings makes an application and the DPP consents. It may be appropriate to lift the stay where only a small portion of the property of the marriage is affected by the proceeds of crime proceedings and the parties wish to continue with the family law action. If that property is not taken into account by the family law court (or other court exercising jurisdiction under the FL Act) and is not forfeited, the parties may apply under section 79A (as amended by Item 7) to have that property distributed.
It is appropriate for the consent of the DPP to be needed for a stay to be lifted, as the DPP is best placed to know whether proceeds of crime proceedings are finalised or whether there will be some further claim on the property.
Family Law Legislation Amendment (Superannuation) Act 2001
Item 9 This item will come into effect after the Family Law Legislation Amendment (Superannuation) Act 2001 commences. It will amend subsection 5(3) of that Act, which is the application provision, and apply the superannuation amendments to paragraph 79A(1)(e).