Family Law Act - Australia

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Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.

      55 When divorce order takes effect (1) Subject to this section, a divorce order made under this Act takes effect by force of this section: (a) at the expiration of a period of 1 month from the making of the order; or (b) from the making of an order under section 55A; whichever is the later.

      (2) If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection: (a) make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or (b) make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.

      (3) If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section: (a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or (b) on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted; whichever is the later.

      (4) A divorce order does not take effect by force of this section if either of the parties to the marriage has died.

      (5) In this section: appeal, in relation to a divorce order, means: (a) an appeal, or an application for leave to appeal, against: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (b) an intervention, or an application for a re‑hearing, relating to: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (c) an application under section 57 or 58 for rescission of the divorce order, or an appeal or application for leave to appeal arising out of such an application; or (d) a review by the Family Court of Australia of the making, by a Registrar or a Judicial Registrar of that Court, of: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (iii) an order determining an application under section 57 or 58 for rescission of the divorce order; or (e) a review by the Federal Circuit Court of Australia of the making, by a Registrar of that Court, of: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (iii) an order determining an application under section 57 or 58 for rescission of the divorce order; or (f) a review by the Family Court of Western Australia of the making, by the Principal Registrar, a Registrar, or a Deputy Registrar, of that Court of: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (iii) an order determining an application under section 57 or 58 for rescission of the divorce order.

      (6) For the purposes of this section, where an application for leave to appeal, or for a re‑hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as: (a) the leave granted remains capable of being exercised; or (b) an appeal or re‑hearing instituted in pursuance of the leave is pending.

      55A Divorce order where children (1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied: (a) that there are no children of the marriage who have not attained 18 years of age; or (b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that: (i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or (ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

      (2) Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.

      (3) For the purposes of this section, a child (including an ex‑nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.

      (4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made.

      56 Certificate as to divorce order (1) If a divorce order takes effect, the Registry Manager of the court by which the order was made must prepare and file a memorandum of the fact and of the date on which the divorce order took effect.

      (2) If a divorce order has taken effect, any person is entitled, on application to the Registry Manager of the court by which the divorce order was made, to receive a certificate signed by the Registrar of that court that the divorce order has taken effect.

      (3) A certificate given under subsection (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, evidence of the matters specified in the certificate.

      (4) The regulations may provide for the establishment of central records of decrees made under this Act and for the notification of decrees to the appropriate marriage registering authorities of the States and Territories.

      57 Rescission of divorce order where parties reconciled Despite anything contained in this Part, if a divorce order has been made in relation to a marriage, the court may, at any time before the order takes effect, upon the application of the parties to the marriage, rescind the divorce order on the ground that the parties have become reconciled.

      58 Rescission of divorce order on ground of miscarriage of justice If a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney‑General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re‑heard.

      59 Re‑marriage If a divorce order under this Act in relation to a marriage has taken effect, a party to the marriage may marry again.

      Part VII–Children

      Division 1 — Introductory

      Subdivision A — What this Division does 60A What this Division does This Division contains: (a) a statement of the object of this Part and the principles underlying it, and an outline of this Part (Subdivision B); and (aa) provisions dealing with the best interests of the child in court proceedings (Subdivision BA); and (ab) provisions dealing with an adviser’s obligations in relation to the best interests of the child (Subdivision BB); and (b) provisions relevant to the interpretation and application of this Part (Subdivision C); and (c) provisions relevant to how this Act applies to certain children (Subdivision D); and (d) provisions about the use of family dispute resolution before applying for an order under this Part (Subdivision E).

      Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12.

      Subdivision B — Object, principles and outline 60B Objects of Part and principles underlying it (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having

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