Revised 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 ('the FL Act') 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.
This item inserts the definition of DPP into the FL Act. DPP means the Commonwealth Director of Public Prosecutions.
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).
This item inserts a definition of 'forfeiture order' into the FL Act. The definition refers back to the definition in the PoC Bill 2002, which is an order made under Division 1 of Part 2-2 of the Bill. This encompasses both types of civil-forfeiture orders, along with conviction-based orders in relation to an indictable offence. It does not include automatic forfeiture, which occurs under Part 2-3 of the Bill subsequent to a person being convicted of a serious offence.
This item defines 'proceeds of crime order', which is either a restraining order or forfeiture order under the PoC Bill 2002.
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.
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 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.
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.
This item inserts four 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 person must also provide to the court a sealed copy of that order or application.
The obligation to disclose is ongoing. 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 up to 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
Proposed section 79C establishes when property settlement or spousal maintenance proceedings must be stayed, and sets out relevant procedures.
Proposed subsections 79C(1) and (2) provide that property settlement or spousal maintenance proceedings must be stayed where either the court is notified by a party pursuant to proposed section 79B that property is covered by a proceeds of crime order or forfeiture order, or where an application to stay the property is made by the DPP.
Where the court is notified pursuant to proposed section 79B, the court is able to adjourn proceedings and invite or require the DPP to make submissions if it is appropriate (for example, because there is a dispute over relevant property, or concerns about the validity of the notification): proposed subsection 79C(1A). The DPP would then be treated as an intervener in the proceedings.
Proposed subsection 79C(3) requires the court to notify the DPP if it stays family law proceedings due to proceeds of crime proceedings. A similar obligation is placed on the DPP, which must notify the appropriate Registry Manager when those proceedings come to an end: proposed subsection 79C(4). Proposed subsection 79C(5) clarifies when proceedings would be taken to have been finally determined.
This ensures that both the DPP and the relevant court are made aware of the proceedings in each court in a timely and reliable manner. The provision of information from the DPP directly to the court would also enable the court to seek to lift the stay of its own motion at an early time if thought appropriate by the court.
There are a number of registry locations in which proceedings under the FL Act may be instituted. Proposed subsection 79C(1) requires an application to stay proceedings to be made to the same registry where family law proceedings are pending, to ensure that the same court is hearing all relevant proceedings.
Proposed section 79D - Lifting a stay
Proposed section 79D sets out the procedure for lifting a stay.
The DPP or either of the parties involved in the property settlement or spousal maintenance proceedings may apply to the court to lift the stay. Alternatively, the court may seek to lift the stay of its own motion.
A stay can only be lifted with the consent of the DPP, who is best placed to know whether proceeds of crime proceedings are finalised or whether there will be some further claim on the property. The consent of the DPP may be given by way of written consent provided to the Registry Manager by the DPP or a party to the proceedings. The court is also able to require the DPP to appear in the proceedings (for example, if there is any dispute in the matter). Enabling consent to be entered without an appearance would reduce the costs of proceedings.
The court may lift the stay either wholly or in part. For example, 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 court in the property or maintenance proceedings, and is not forfeited in the proceeds of crime proceedings, the parties may apply under section 79A (as amended by Item 7) to have that property distributed.
Proposed section 79E - Intervention by DPP
Under proposed sections 79B, 79C and 79D the DPP may effectively intervene in property settlement and spousal maintenance proceedings under the FL Act. This is comparable to intervention elsewhere in the FL Act - by the Attorney-General under section 91, a State or Territory Attorney-General under section 91A, a child welfare officer under section 91B and by other persons in sections 92 and 92A. The effect of a person becoming an intervener is that they are deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
Proposed section 79E provides that the DPP may intervene in limited circumstances, and that the rights duties and liabilities of being a party in those proceedings attach. The provision makes it clear that the DPP's ability to intervene is limited to the proceedings specified in this Schedule, and cannot extend to other proceedings under the FL Act.
This item inserts four 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 person must also provide to the court a sealed copy of that order or application.
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 up to 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
Proposed section 90N establishes when property settlement or spousal maintenance proceedings must be stayed, and sets out relevant procedures.
Proposed subsections 90N(1) and (2) provide that property settlement or spousal maintenance proceedings must be stayed where the either the court is notified by either party pursuant to proposed section 90M that property is covered by a proceeds of crime order or forfeiture order, or where an application to stay the property is made by the DPP.
Where the court is notified pursuant to proposed section 90M, the court is able to adjourn proceedings and invite or require the DPP to make submissions if it is appropriate (for example, because there is a dispute over relevant property, or concerns about the validity of the notification): proposed subsection 90N(1A). The DPP would then be treated as an intervener in the proceedings.
Proposed subsection 90N(3) requires the court to notify the DPP if it stays family law proceedings due to proceeds of crime proceedings. A similar obligation is placed on the DPP, which must notify the appropriate Registry Manager when those proceedings come to an end (proposed subsection 90N(4)). Proposed subsection 90N(5) clarifies when proceedings would be taken to have been finally determined.
This ensures that both the DPP and the relevant court are made aware of the proceedings in each court in a timely and reliable manner. The provision of information from the DPP directly to the court would also enable the court to seek to lift the stay of its own motion at an early time if thought appropriate by the court.
There are a number of registry locations in which proceedings under the FL Act may be instituted. Proposed subsection 90N(1) requires an application to stay proceedings to be made to the same registry where family law proceedings are pending, to ensure that the same court is hearing all relevant proceedings.
Proposed section 90P - Lifting a stay
Proposed section 90P sets out the procedure for lifting a stay.
The DPP or either of the parties involved in the property settlement or spousal maintenance proceedings may apply to the court to lift the stay. Alternatively, the court may seek to lift the stay of its own motion.
A stay can only be lifted with the consent of the DPP, who is best placed to know whether proceeds of crime proceedings are finalised or whether there will be some further claim on the property. The consent of the DPP may be given by way of written consent provided by the DPP to the Registry Manager or to a party to the proceedings. The court is also able to require the DPP to appear in the proceedings (for example, if there is any dispute in the matter). Enabling consent to be entered without an appearance would reduce the costs of proceedings.
The court may lift the stay either wholly or in part. For example, 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 court in the property or maintenance proceedings, and is not forfeited in the proceeds of crime proceedings, the parties may apply under section 79A (as amended by Item 7) to have that property distributed.
Proposed section 90Q - Intervention by DPP
Under proposed sections 90M, 90N and 90P the DPP may effectively intervene in property settlement and spousal maintenance proceedings under the FL Act. This is comparable to intervention elsewhere in the FL Act - by the Attorney-General under section 91, a State or Territory Attorney-General under section 91A, a child welfare officer under section 91B and by other persons in sections 92 and 92A. The effect of a person becoming an intervener is that they are deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
Proposed section 90Q provides that the DPP may intervene in limited circumstances, and that the rights duties and liabilities of being a party in those proceedings attach. The provision makes it clear that the DPP's ability to intervene is limited to the proceedings specified in this Schedule, and cannot extend to other proceedings under the FL Act.
Family Law Legislation Amendment (Superannuation) Act 2001
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).
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