FAMILY LAW AMENDMENT BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Family Law Amendment Bill 2023

No. , 2023

(Attorney-General)

A Bill for an Act to amend legislation relating to

family law, and for related purposes

No. , 2023

Family Law Amendment Bill 2023

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1--Parenting framework

Part 1--Best interests of children

Family Law Act 1975

Part 2--Parental responsibility

Family Law Act 1975

Part 3--Child-related proceedings

Family Law Act 1975

Schedule 2--Enforcement of child-related orders

Part 1--Enforcement of child-related orders

Division 1--Main amendments

Child Support (Assessment) Act 1989

Family Law Act 1975

Federal Circuit and Family Court of Australia Act 2021

Division 2--Amendments contingent on the commencement of Part 3

of Schedule 1

Family Law Act 1975

Division 3--Application and transitional rules

Part 2--Delegations

Division 1--Main amendment

Federal Circuit and Family Court of Australia Act 2021

Division 2--Amendment relating to amendments made by Part 1 of

this Schedule

Federal Circuit and Family Court of Australia Act 2021

Schedule 3--Definition of member of the family

Family Law Act 1975

Schedule 4--Independent children's lawyers

Family Law Amendment Bill 2023

No. , 2023

Part 1--Requirement to meet with the child

Family Law Act 1975

Part 2--Convention on the Civil Aspects of International Child

Abduction

Family Law Act 1975

Schedule 5--Case management and procedure

Part 1--Harmful proceedings orders and co-location of

sections 45A and 102Q

Family Law Act 1975

Federal Circuit and Family Court of Australia Act 2021

Part 2--Overarching purpose of the family law practice and

procedure provisions

Family Law Act 1975

Federal Circuit and Family Court of Australia Act 2021

Schedule 6--Communications of details of family law

proceedings

Family Law Act 1975

Federal Circuit and Family Court of Australia Act 2021

Schedule 7--Family report writers

Family Law Act 1975

Schedule 8--Review of operation of the Federal Circuit and

Family Court of Australia Act 2021

Federal Circuit and Family Court of Australia Act 2021

Schedule 9--Dual appointments

Federal Circuit and Family Court of Australia Act 2021

No. , 2023

Family Law Amendment Bill 2023

A Bill for an Act to amend legislation relating to

family law, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Family Law Amendment Act 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Family Law Amendment Bill 2023

No. , 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

3. Schedule 2,

Part 1, Division 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

4. Schedule 2,

Part 1, Division 2

The later of:

(a) immediately after the commencement of

the provisions covered by table item 2;

and

(b) immediately after the commencement of

the provisions covered by table item 3.

5. Schedule 2,

Part 1, Division 3

At the same time as the provisions covered

by table item 3.

6. Schedule 2,

Part 2, Division 1

The day after this Act receives the Royal

Assent.

7. Schedule 2,

Part 2, Division 2

Immediately after the commencement of the

provisions covered by table item 3.

8. Schedule 3

Immediately after the commencement of the

provisions covered by table item 2.

9. Schedule 4

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

No. , 2023

Family Law Amendment Bill 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

they commence on the day after the end of

that period.

10. Schedule 5

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

11. Schedule 6

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

12. Schedule 7

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

13. Schedules 8

and 9

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1

Parenting framework

Part 1

Best interests of children

Family Law Amendment Bill 2023

No. , 2023

Schedule 1--Parenting framework

Part 1--Best interests of children

Family Law Act 1975

1 Paragraph 4(1AB)(b)

Repeal the paragraph, substitute:

(b) paragraph 60CC(3)(a); and

2 Paragraph 60A(a)

Omit "and the principles underlying it,".

3 Subdivision B of Division 1 of Part VII (heading)

Omit "

, principles

4 Section 60B

Repeal the section, substitute:

60B Objects of Part

The objects of this Part are:

(a) to ensure that the best interests of children are met, including

by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child

done at New York on 20 November 1989.

Note:

The text of the Convention is set out in Australian Treaty Series 1991

No. 4 ([1991] ATS 4). In 2023, the text of a Convention in the

Australian Treaty Series was accessible through the Australian

Treaties Library on the AustLII website (www.austlii.edu.au).

5 Section 60C (table item 1

, column headed "Divisions and

coverage")

Omit "principles underlying it, and".

6 Section 60CC

Repeal the section, substitute:

Parenting framework

Schedule 1

Best interests of children

Part 1

No. , 2023

Family Law Amendment Bill 2023

60CC How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best

interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child--

also consider the matters set out in subsection (3).

General considerations

(2) For the purposes of paragraph (1)(a), the court must consider the

following matters:

(a) what arrangements would promote the safety (including

safety from family violence, abuse, neglect, or other harm)

of:

(i) the child; and

(ii) each person who has care of the child (whether or not a

person has parental responsibility for the child);

(b) any views expressed by the child;

needs of the child;

(d) the capacity of each person who has or is proposed to have

parental responsibility for the child to provide for the child's

developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship

with the child's parents, and other people who are significant

to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances

of the child.

Additional considerations--right to enjoy Aboriginal or Torres

Strait Islander culture

(3) For the purposes of paragraph (1)(b), the court must consider the

following matters:

(a) the child's right to enjoy the child's Aboriginal or Torres

Strait Islander culture, by having the opportunity to connect

with, and maintain their connection with, members of their

Schedule 1

Parenting framework

Part 1

Best interests of children

Family Law Amendment Bill 2023

No. , 2023

family and with their community, culture, country and

language;

(b) the likely impact any proposed parenting order under this

Part will have on that right.

Consent orders

(4) If the court is considering whether to make an order with the

consent of all the parties to the proceedings, the court may, but is

not required to, have regard to all or any of the matters set out in

subsection (2) or (3).

7 Subsection 60CD(1)

Omit "60CC(3)(a)", substitute "60CC(2)(b)".

8 Paragraph 60D(1)(b)

Repeal the paragraph, substitute:

(b) encourage the person to act in the child's best interests by

applying the considerations set out in subsections 60CC(2)

and (3).

9 Paragraph 68N(b)

Omit "and principles".

10 Subsection 68P(2C)

Repeal the subsection.

11 Paragraph 68S(2)(a)

Omit "60CC(3)(a) (about taking into account a child's views etc.)",

substitute "60CC(2)(b) (about taking into account a child's views)".

12 Application provision

The amendments of the

Family Law Act 1975

made by this Part apply

in relation to proceedings that commence on or after the day this item

commences.

Parenting framework

Schedule 1

Parental responsibility

Part 2

No. , 2023

Family Law Amendment Bill 2023

Part 2--Parental responsibility

Family Law Act 1975

13 Subsection 61C(1) (note 2)

Omit "See section 61DA for the presumption that the court does apply

when making a parenting order.".

14 After section 61C

Insert:

61CA Consultation between parents on major long-term issues

If it is safe to do so, and subject to any court orders, the parents of

a child who is not yet 18 are encouraged:

(a) to consult each other about major long-term issues in relation

to the child; and

(b) in doing so, to have regard to the best interests of the child as

the paramount consideration.

15 At the end of section 61D

Add:

(3) A parenting order that deals with the allocation of responsibility for

making decisions about major long-term issues in relation to the

child (see subsection 64B(3)) may provide for joint or sole

decision-making in relation to all or specified major long-term

issues.

16 Sections 61DA and 61DB

Repeal the sections, substitute:

61DAA Effect of parenting order that provides for joint

decision-making about major long-term issues

(1) If a parenting order provides for joint decision-making by persons

in relation to all or specified major long-term issues in relation to a

child, the order is taken to require each of the persons:

Schedule 1

Parenting framework

Part 2

Parental responsibility

Family Law Amendment Bill 2023

No. , 2023

(a) to consult each other person in relation to each such decision;

and

(b) to make a genuine effort to come to a joint decision.

(2) To avoid doubt, this section does not require any other person to

establish, before acting on a decision about the child

communicated by one of those persons, that the decision has been

made jointly.

61DAB No need to consult on issues that are not major long-term

issues

(1) If a child is spending time with a person at a particular time under a

parenting order, the order is taken not to require the person to

consult a person who:

(a) has parental responsibility for the child; or

(b) shares parental responsibility for the child with another

person;

about decisions that are made in relation to the child during that

time on issues that are not major long-term issues.

Note:

This will mean that the person with whom the child is spending time

will usually not need to consult on decisions about such things as what

the child eats or wears because these are usually not major long-term

issues.

(2) Subsection (1) applies subject to any provision to the contrary

made by a parenting order.

17 At the end of section 61F

Add:

Note:

The expression

Aboriginal or Torres Strait Islander culture

defined in subsection 4(1).

18 At the end of subsection 63C(2B)

Add:

Note:

For the definition of

major long-term issues

, see subsection 4(1).

19 Paragraphs 63DA(2)(a) and (b)

Repeal the paragraphs.

Parenting framework

Schedule 1

Parental responsibility

Part 2

No. , 2023

Family Law Amendment Bill 2023

20 Subsections 63DA(3) and (4)

Repeal the subsections.

21 At the end of subsection 64B(3)

Add:

Note 1:

See also subsection 61D(3) and section 61DAA in relation to

parenting orders dealing with allocation of responsibility for making

decisions about major long-term issues.

Note 2:

For the definition of

major long-term issues

, see subsection 4(1).

22 Subsection 65D(1)

Omit "sections 61DA (presumption of equal shared parental

responsibility when making parenting orders) and", substitute "section".

23 Subsection 65D(2)

Omit "61DA (presumption of equal shared parental responsibility when

making parenting orders) and".

24 Sections 65DAA, 65DAC and 65DAE

Repeal the sections.

25 Application provision

(1)

Subject to subitem (2), the amendments of the

Family Law Act 1975

made by this Part apply in relation to proceedings that commence on or

after the day this item commences.

(2)

Section 61CA of the

Family Law Act 1975

, as inserted by this Part,

applies from the day this item commences.

Schedule 1

Parenting framework

Part 3

Child-related proceedings

Family Law Amendment Bill 2023

No. , 2023

Part 3--Child-related proceedings

Family Law Act 1975

26 After section 65D

Insert:

65DAAA Reconsideration of final parenting orders

(1) If a final parenting order is in force in relation to a child, a court

must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant

change of circumstances since the final parenting order was

made; and

(b) the court is satisfied that, in all the circumstances (and taking

into account whether there has been a significant change of

circumstances since the final parenting order was made), it is

in the best interests of the child for the final parenting order

to be reconsidered.

(2) For the purposes of determining whether the court is satisfied as

mentioned in paragraph (1)(b), and without limiting section 60CC,

the court may have regard to any matters that the court considers

relevant, including the following:

(a) the reasons for the final parenting order and the material on

which it was based;

(b) whether there is any new material available that was not

available to the court that made the final parenting order;

reconsidered, the court will make a new parenting order that

affects the operation of the final parenting order in a

significant way (whether by varying, discharging or

suspending the final parenting order, in whole or in part, or in

some other way);

(d) any potential benefit, or detriment, to the child that might

result from reconsidering the final parenting order.

Parenting framework

Schedule 1

Child-related proceedings

Part 3

No. , 2023

Family Law Amendment Bill 2023

(3) Despite subsection (1), the court may reconsider a final parenting

order with the agreement or consent of all the parties to that order.

(4) The failure of a court to comply with subsection (1) does not affect

the validity of any order made by the court.

27 Application provision

The amendment made by this Part applies in relation to final parenting

orders whether the orders came into force before, or come into force on

or after, the day this item commences.

Schedule 2

Enforcement of child-related orders

Part 1

Enforcement of child-related orders

Family Law Amendment Bill 2023

No. , 2023

Schedule 2--Enforcement of child-related

orders

Part 1--Enforcement of child-related orders

Division 1

--Main amendments

Child Support (Assessment) Act 1989

1 Subsection 100(2)

Omit "Division 13A of Part VII (Consequences of failure to comply

with orders, and other obligations, that affect children)", substitute

"Division 13A of Part VII (Orders in proceedings relating to

contraventions of child-related orders)".

Family Law Act 1975

2 Subsection 4(1) (definitions of alleged contravention and

alleged offender)

Omit "in Subdivision D of Division 6 of Part VII", substitute "in

Subdivision B of Division 14 of Part VII".

3 Subsection 4(1) (definition of applied provisions)

Repeal the definition.

4 Subsection 4(1)

Insert:

child-related order

: see subsection 70NBA(2).

5 Subsection 4(1) (definition of community service order)

Repeal the definition.

6 Subsection 4(1)

Insert:

contravene

a child-related order: see section 70NAC.

Enforcement of child-related orders

Schedule 2

Enforcement of child-related orders

Part 1

No. , 2023

Family Law Amendment Bill 2023

7 Subsection 4(1)

Repeal the following definitions:

(a) definition of

contravened

;

(b) definition of

order under this Act affecting children

;

primary order

8 Subsection 4(1)

Insert:

reasonable excuse

for contravening a child-related order has a

meaning affected by section 70NAD.

9 Subsection 4(1) (definition of reasonable excuse for

contravening)

Repeal the definition.

10 At the end of Part II

Add:

Division 5--Post-separation parenting programs

10PA Admissibility of communications in post-separation parenting

programs

(1) Evidence of anything said, or of any admission made, by a person

attending a post-separation parenting program is not admissible:

(a) in any court (whether exercising federal jurisdiction or not);

(b) in any proceedings before a person authorised by a law of the

Commonwealth, of a State or of a Territory, or by the

consent of the parties, to hear evidence.

(2) Subsection (1) does not apply to the following:

(a) an admission by an adult that indicates that a child under 18

has been abused or is at risk of abuse;

(b) a disclosure by a child under 18 that indicates that the child

has been abused or is at risk of abuse;

Schedule 2

Enforcement of child-related orders

Part 1

Enforcement of child-related orders

Family Law Amendment Bill 2023

No. , 2023

unless, in the opinion of the court, there is sufficient evidence of

the admission or disclosure available to the court from other

sources.

Note:

A court may make an order directing a person to attend a

post-separation parenting program under subsection 65LA(1) or

70NBD(1).

11 Section 60C (table item 6)

Repeal the item, substitute:

Division 6--Parenting orders other than child

maintenance orders

•

applying for and making parenting orders (other than

child maintenance orders) after attending, if necessary,

family dispute resolution (see section 60I)

•

measures to promote the exercise of parental

responsibility

•

obligations under parenting orders, other than child

maintenance orders, relating to taking or sending

children from Australia

12 Section 60C (table item 13A)

Repeal the item, substitute:

13A

Division 13A--Orders in proceedings relating to

contraventions of child-related orders

•

orders that the court may make in proceedings where it

is alleged that a person has contravened a child-related

order (including parenting orders)

13 Section 60C (table item 14)

Repeal the item, substitute:

Division 14--Miscellaneous

•

dealing with people who have been arrested and

miscellaneous matters relating to children

Enforcement of child-related orders

Schedule 2

Enforcement of child-related orders

Part 1

No. , 2023

Family Law Amendment Bill 2023

14 Subsection 63F(3) (paragraph (a) of the note)

Omit "Subdivisions C, D and E", substitute "Subdivision E".

15 Paragraphs 65A(1)(b) and (c)

Repeal the paragraphs.

16 Subsection 65D(3)

Repeal the subsection (not including the notes).

17 Subsection 65D(3) (notes 1 and 2)

Omit "or for the proceedings under Subdivision E of Division 13A of

Part VII, or both,".

18 Subdivisions C and D of Division 6 of Part VII

Repeal the Subdivisions.

19 Section 67Q (note 1)

Omit "Subdivision D of Division 6", substitute "Subdivision B of

Part 14".

20 Subsections 69ZH(2) and (4)

Omit "Subdivisions C, D and E", substitute "Subdivision E".

21 Division 13A of Part VII

Repeal the Division, substitute:

Division 13A--Orders in proceedings relating to

contraventions of child-related orders

Subdivision A--Preliminary

70NAA Simplified outline

This Division sets out orders that a court may (or must in certain

circumstances with respect to costs orders) make if an issue arises

in the proceedings about whether a person (the

respondent

) has

contravened a child-related order.

Schedule 2

Enforcement of child-related orders

Part 1

Enforcement of child-related orders

Family Law Amendment Bill 2023

No. , 2023

The court may, at any stage of proceedings (and without having to

make a finding about the contravention), make any of the

following orders:

(a)

a make-up time parenting order;

(b)

an order varying or suspending a parenting order;

(c)

an order requiring the respondent and any other party to

the proceedings to attend a post-separation parenting

program;

(d)

a costs order.

If the court finds that the respondent contravened the child-related

order without having a reasonable excuse, the court may make any

of the following orders (having regard to the seriousness of the

contravention):

(a)

an order requiring the respondent to enter into a bond;

(b)

an order imposing a fine on the respondent for failing to

enter into a bond;

(c)

an order requiring the respondent to compensate another

person for certain costs incurred as a result of the

contravention.

If the court is satisfied beyond reasonable doubt that the respondent

contravened the child-related order without having a reasonable

excuse, the court may also make any of the following orders

(having regard to the seriousness of the contravention):

(a)

an order imposing a fine on the respondent;

(b)

an order imposing a sentence of imprisonment on the

respondent.

This Division also sets out ancillary matters relating to terms of

imprisonment, the enforcement of bonds and other miscellaneous

matters.

70NAB Objects

The principal objects of this Division are to meet the best interests

of children to whom child-related orders relate by:

(a) supporting parties to child-related orders to comply with

those orders; and

Enforcement of child-related orders

Schedule 2

Enforcement of child-related orders

Part 1

No. , 2023

Family Law Amendment Bill 2023

(b) resolving difficulties associated with child-related orders that

are parenting orders which have contributed to

non-compliance with such orders (including by varying or

making further orders); and

(d) upholding the authority of the court by enforcing compliance

with child-related orders where the court considers this

necessary and appropriate; and

(e) providing for the imposition of appropriate sanctions on a

person who seriously or repeatedly contravenes child-related

orders without having a reasonable excuse.

70NAC Meaning of contravene a child-related order

(1) A person

contravenes

a child-related order only if:

(a) the person is a person (other than a child) to whom the order

applies and:

(i) the person intentionally fails to comply with the order;

(ii) the person makes no reasonable attempt to comply with

the order; or

(b) the person is not a person to whom the order applies, and the

person is not a child, but:

(i) the person intentionally prevents compliance with the

order by a person to whom the order applies; or

(ii) the person aids or abets a contravention of the order by

a person to whom the order applies.

Note:

A child-related order that is a parenting order may be subject to a later

parenting plan: see section 64D. This means that conduct that would

otherwise contravene such an order may not constitute a contravention

because of the terms of a later parenting plan.

(2) Without limiting subsection (1), the following table sets out

circumstances in which a person

contravenes

a child-related order.

Circumstances in which a person contravenes a child-related order

Item

The order deals with ...

and, contrary to the order, the

person intentionally ...

whom a child is to live with

removes the child from the care of

Schedule 2

Enforcement of child-related orders

Part 1

Enforcement of child-related orders

Family Law Amendment Bill 2023

No. , 2023

Circumstances in which a person contravenes a child-related order

Item

The order deals with ...

and, contrary to the order, the

person intentionally ...

another person, or refuses or fails to

deliver or return the child to another

person.

whom a child is to spend time with

hinders or prevents another person

from spending time with the child.

whom a child is to communicate

with

hinders or prevents another person

from communicating with the child.

the allocation of parental

responsibility for a child to another

person (the

carer

)

hinders or prevents the carer from

discharging that responsibility.

the maintenance of a child

fails to pay maintenance or prevents

the payment of maintenance.

70NAD Meaning of reasonable excuse for contravening a

child-related order

Where person did not understand obligations

(1) A person has a

reasonable excuse

for contravening a child-related

order if:

(a) the person contravened the order because at the time of the

contravention the person did not understand the obligations

imposed by the order; and

(b) the court considers that the person ought to be excused in

respect of the contravention.

(2) If the court decides that a person has a reasonable excuse under

subsection (1) for contravening a child-related order, the court

must explain to the person, in language likely to be readily

understood by the person:

(a) the obligations imposed on the person by the order; and

(b) the consequences that may follow if the person contravenes

the order again.

Enforcement of child-related orders

Schedule 2

Enforcement of child-related orders

Part 1

No. , 2023

Family Law Amendment Bill 2023

Protection of health or safety of a person

(3) A person has a

reasonable excuse

for contravening a child-related

order if:

(a) the person contravened the order because the person

reasonably believed that the person's actions constituting the

contravention were necessary to protect the health or safety

of the person, a child or any other person; and

(b) the period of the contravention was not longer than necessary

to protect the health or safety of the person, child or other

person.

Section does not limit circumstances of a reasonable excuse

(4) This section does not limit the circumstances in which a person

may have a reasonable excuse for contravening a child-related

order.

70NAE Standard of proof

The standard of proof to be applied in determining matters in

proceedings under this Division (other than

paragraph 70NBF(1)(d)) is proof on the balance of probabilities.

Note:

The court may make an order under paragraph 70NBF(1)(d) in

relation to a person only if the court is satisfied beyond reasonable

doubt that the person contravened the child-related order.

Subdivision B--Orders relating to contraventions of

child-related orders

70NBA Court may make orders in proceedings relating to

contravention of child-related orders

(1) This Subdivision sets out orders that a court exercising jurisdiction

in proceedings under this Act may (or must in certain

circumstances) make if:

(a) an issue arises in the proceedings about whether a person (the

respondent

) has contravened a child-related order; and

(b) a party to the proceedings makes an application for an order

under this Subdivision in relation to the issue.

Schedule 2

Enforcement of child-related orders

Part 1

Enforcement of child-related orders

Family Law Amendment Bill 2023

No. , 2023

Note:

The court does not need to find that the respondent contravened a

child-related order to make certain orders under this Subdivision. For

example, the court may make the following orders at any stage of the

proceedings:

(a) a make-up time parenting order under section 70NBB;

(b) an order varying or suspending a parenting order under

section 70NBC;

proceedings to attend a post-separation parenting program under

section 70NBD.

(2) Each of the following is a

child-related order

(a) a parenting order;

(b) an injunction granted by the court:

(i) under section 68B; or

(ii) under section 114 in so far as the injunction is for the

protection of a child;

(i) under a parenting order; or

(ii) under paragraph 70NBF(1)(a); or

(iii) for the purposes of subsection 70NCC(3);

(d) an undertaking given to, and accepted by, the court that

relates to, or to the making of, an order, injunction or bond

referred to in any of paragraphs (a) to (c);

(e) a subpoena issued under the applicable Rules of Court that:

(i) relates to, or to the making of, an order, injunction or

bond referred to in any of paragraphs (a) to (c); and

(ii) is issued to a party to the proceedings for the order,

injunction or bond, as the case may be.

70NBB Make-up time parenting orders

(1) If a child does not spend time with a person as required by a

child-related order as a result of the alleged contravention

mentioned in subsection 70NBA(1), then, in lieu of that time, the

court may make a parenting order (a

make-up time parenting

order

) that the child spend time with the person.

Note 1:

Parenting orders are made under Division 6.

Note 2:

The court may also make an order requiring the respondent to

compensate another person for reasonable expenses incurred as a

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result of a child not spending time with that other person: see

paragraph 70NBF(1)(c).

(2) The court may make a make-up time parenting order at any stage

of the proceedings.

(3) To avoid doubt, the amount of time specified in the make-up time

parenting order may be different from the amount of time that the

child did not spend with the person as a result of the alleged

contravention.

70NBC Variation and suspension of child-related orders that are

parenting orders

Variation of child-related orders that are parenting orders

(1) The court may, at any stage of the proceedings

vary a child-related

order that is a parenting order.

(2) Subsection (1) does not limit the circumstances in which a court

having jurisdiction under this Act may vary a child-related order

that is a parenting order.

Suspension of child-related orders that are parenting orders

(3) The court may, at any stage of the proceedings, suspend for a

specified period of time the operation of, or part of the operation

of, a child-related order that is a parenting order.

70NBD Post-separation parenting programs

Post-separation parenting program orders

(1) The court may, at any stage of the proceedings, make an order

requiring the respondent and, if appropriate, one or more other

parties to the proceedings, to attend a post-separation parenting

program or other specified program.

Note 1:

Before making an order under this section, the court must consider

seeking the advice of a family consultant about the services

appropriate to the party's needs (see section 11E).

Note 2:

Things said, or admission made by, a person in a post-separation

parenting program are generally not admissible in a court: see

section 10PA.

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Duty of principal executive officer to notify program provider

(2) The principal executive officer of the court must advise the

provider of the program of the making of an order under

subsection (1) as soon as reasonably practicable after the order is

made.

Unsuitability to attend program or failure to attend program

(3) The provider of the program must inform the court, and any other

party to the proceedings, if:

(a) the provider considers that a person ordered to attend the

program is unsuitable to attend the program; or

(b) a person ordered to attend the program fails to attend the

entire program, or any part of it.

(4) The court may make any order (other than an order under

paragraph 70NBF(1)(d)) that it considers appropriate if a person

ordered to attend a program is considered as being unsuitable to

attend the program, or fails to attend any part of the program.

(5) If the court has found that the respondent has contravened the

child-related order without having a reasonable excuse, then the

court must take into account the seriousness of that contravention

when making an order under subsection (4).

70NBE Costs orders

Costs order against complainant--unsubstantiated allegations of

contraventions

(1) The court may make an order (a

costs order

) that a person (the

complainant

) pay some or all of the costs of one or more of the

other parties, including the respondent, if:

(a) the complainant alleged that the respondent contravened a

child-related order; and

(b) either:

(i) the court does not find that the respondent contravened

the child-related order; or

(ii) the court finds that the respondent had a reasonable

excuse for contravening the child-related order.

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(2) The court must consider making the costs order if:

(a) the complainant has previously alleged, in proceedings under

this Act or any other Act, that the respondent contravened the

child-related order mentioned in subsection (1) or any other

child-related order; and

(b) as a result of the most recent allegation, the court before

which those proceedings were brought:

(i) did not find that the respondent contravened the

child-related order mentioned in paragraph (a); or

(ii) found that the respondent had contravened the

child-related order mentioned in paragraph (a), but did

not make an order under this Division in relation to the

contravention.

(3) The court must not make the costs order if:

(a) the court finds that the respondent had a reasonable excuse

for contravening the child-related order; and

(b) the court has made, or will make, a make-up time parenting

order under section 70NBB in respect of the contravention.

Costs order against respondent--contraventions without

reasonable excuse

(4) The court must make an order (a

costs order

) that the respondent

pay some or all of the costs of any other party to the proceedings if

the court finds that the respondent contravened the child-related

order without having a reasonable excuse, unless the court is

satisfied that it is not appropriate to do so in the circumstances.

70NBF Orders where contravention established without reasonable

excuse

Orders for contraventions without reasonable excuse

(1) If the court finds that the respondent has contravened a

child-related order without having a reasonable excuse, the court

may make any of the following orders:

(a) an order requiring the respondent to enter into a bond in

accordance with section 70NCA;

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(b) if an order is made under paragraph (a), and the respondent

fails, without having a reasonable excuse, to enter into the

bond--an order imposing a fine not exceeding 10 penalty

units on the respondent;

with, or living with, a person (the

affected person

) for a

period--an order requiring the respondent to compensate the

affected person for some or all of any expenses the affected

person reasonably incurred as a result of the contravention;

(d) where the court is satisfied beyond reasonable doubt that the

respondent contravened the order:

(i) an order imposing a fine not exceeding 60 penalty units;

(ii) an order imposing a term of imprisonment.

Note 1:

The court must also make a costs order against the respondent under

subsection 70NBE(4), unless the court is satisfied that it is not

appropriate in the circumstances to make the order.

Note 2:

For subparagraph (d)(ii), see subsection (4), subsection 70NCC(2) and

section 70NCE for limits on how and when the court may impose a

term of imprisonment on the respondent.

Matters to be considered by the court

(2) In making an order mentioned in subsection (1), the court must

have regard to:

(a) the likely effects of making the order on any child, or any

other person; and

(b) the seriousness of the contravention.

(3) Without limiting the matters the court may take into account, the

following matters must be taken into account by the court when

having regard to the seriousness of the contravention:

(a) whether a court has previously found that the respondent has

contravened a child-related order without having a reasonable

excuse;

(b) whether the respondent behaved in a way that showed a

serious disregard of the respondent's obligations under the

child-related order mentioned in subsection (1);

spend time under the child-related order mentioned in

subsection (1).

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(4) The court may sentence the respondent to imprisonment under

subparagraph (1)(d)(ii) only if the court is satisfied that, in all the

circumstances of the case, it would not be appropriate for the court

to deal with the contravention in any other way under

subsection (1).

Subdivision C--Further provisions relating to bonds and

imprisonment

70NCA Matters relating to bonds

(1) This section sets out requirements relating to bonds that the court

may require the respondent to enter into under

paragraph 70NBF(1)(a).

Matters dealt with in bonds

(2) A bond is to be for a specified period of up to 2 years.

(3) A bond may be:

(a) with or without surety; and

(b) with or without security.

(4) The conditions that may be imposed on the respondent by a bond

include (without limitation) conditions that require the respondent:

(a) to attend a post-separation parenting program; or

(b) to attend an appointment (or a series of appointments) with a

family consultant; or

(d) to attend family dispute resolution; or

(e) to be of good behaviour.

Duty to explain bond

(5) Before requiring the respondent to enter into a bond, the court must

explain to the respondent, in language likely to be readily

understood by the respondent:

(a) the purpose and effect of the proposed requirement; and

(b) the consequences that may follow if the respondent:

(i) fails to enter into the bond; or

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(ii) having entered into the bond--fails to act in accordance

with the bond.

70NCB Procedure for enforcing bonds

(1) This section applies if:

(a) the court finds that the respondent has contravened a

child-related order without having a reasonable excuse; and

(b) the respondent has entered into a bond in accordance with an

order made under paragraph 70NBF(1)(a); and

comply with the bond.

(2) The court may:

(a) without prejudice to the continuance of the bond, impose a

fine not exceeding 10 penalty units on the respondent; or

(b) revoke the bond and deal with the respondent in any manner

in which the respondent could have been dealt with for the

contravention of the child-related order if:

(i) the bond had not been entered into; and

(ii) the respondent was before the court under this Division

in respect of the contravention of the child-related order.

(3) Without limiting the matters the court may take into account, the

court must take into account the following matters when acting

under subsection (2):

(a) the fact that the bond was entered into;

(b) anything done pursuant to the bond;

of the contravention of the child-related order.

70NCC Matters relating to imprisonment

(1) This section applies if a sentence of imprisonment is imposed on

the respondent under subparagraph 70NBF(1)(d)(ii).

Limits on sentences of imprisonment

(2) The sentence of imprisonment must be expressed to be:

(a) for a specified period of no more than 12 months; or

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(b) for a period ending at the earlier of:

(i) the time when the respondent complies with the

child-related order concerned; or

(ii) the time when the respondent has been imprisoned

under the sentence for 12 months, or such lesser period

as is specified by the court ordering the sentence.

Good behaviour bonds

(3) When sentencing the respondent to imprisonment, the court may

direct that, after serving a specified part of the term of

imprisonment, the respondent be released upon the respondent

entering into a bond (with or without surety or security) that the

respondent will be of good behaviour for a specified period of up

to 2 years.

Statement of reasons

(4) The court that sentences the respondent to imprisonment must:

(a) state the reasons why it is satisfied as mentioned in

subsection 70NBF(4); and

(b) cause those reasons to be entered in the records of the court.

Note:

Subsection 70NBF(4) provides that the respondent may be sentenced

to imprisonment only if the court is satisfied that it would not be

appropriate for the court to deal with the contravention in any other

way under subsection 70NBF(1).

(5) The failure of the court to comply with subsection (4) does not

invalidate a sentence.

70NCD Powers of court in relation to imprisoned person

Release of imprisoned respondent

(1) The court that has sentenced the respondent to imprisonment may

order the release of the respondent if it is satisfied that the

respondent will, if released, comply with the court's orders.

Suspension of sentence

(2) The court that sentences the respondent to imprisonment may:

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(a) suspend the sentence upon the terms and conditions

determined by the court; and

(b) terminate such a suspension.

70NCE Rules relating to child maintenance orders and child

support

Sentences of imprisonment for contravention of child maintenance

orders

(1) The court must not make an order imposing a sentence of

imprisonment on the respondent under

subparagraph 70NBF(1)(d)(ii), in respect of a contravention of a

child maintenance order made under this Act, unless the court is

satisfied that the contravention was intentional or fraudulent.

(2) To avoid doubt, the serving by the respondent of a period of

imprisonment imposed under subparagraph 70NBF(1)(d)(ii) for

failure to make a payment under a child maintenance order does

not affect the respondent's liability to make the payment.

Court must not imprison respondent for contravention of child

support assessments etc.

(3) The court must not make an order imposing a sentence of

imprisonment on the respondent under

subparagraph 70NBF(1)(d)(ii) in respect of:

(a) a contravention of an administrative assessment of child

support made under the

Child Support (Assessment) Act

1989

; or

(b) a breach of a child support agreement made under that Act;

of Part 7 of that Act for a departure from such an assessment

(including such an order that contains matters mentioned in

section 141 of that Act).

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Subdivision D--Miscellaneous

70NDA Court may issue warrant for arrest of alleged offender

(1) The court may issue a warrant authorising a person to whom it is

addressed to arrest the respondent if:

(a) a child-related order that is a parenting order provides that a

child is to live with, spend time with or communicate with a

person (the

complainant

); and

(b) the court is satisfied that there are reasonable grounds for

believing that the respondent has contravened the order on

any of the grounds mentioned in any of items 1 to 3 of the

table in subsection 70NAC(2); and

respondent will attend before the court to be dealt with under

this Division for the alleged contravention.

(2) A warrant stops being in force on the date specified in the warrant

(which must be no more than 6 months after the issue of the

warrant).

70NDB Relationship between Division and prosecutions for offences

under other laws

(1) This section applies if:

(a) an act or omission by the respondent:

(i) constitutes an alleged contravention of a child-related

order; and

(ii) also constitutes an alleged offence under any law; and

(b) the respondent is prosecuted in respect of the offence.

(2) The court must:

(a) dismiss proceedings in relation to the alleged contravention

of the child-related order; or

(b) adjourn those proceedings until the prosecution has been

completed.

(3) Nothing in this Division renders a person liable to be punished

twice in respect of the same act or omission.

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70NDC Division does not limit operation of section 105

Nothing in this Division limits the operation of section 105 (which

deals with enforcement generally).

22 Division 14 of Part VII (after the heading)

Insert:

Subdivision A--What this Division does

23 Section 70P

Omit "deals with", substitute "is about dealing with people who have

been arrested and".

24 After section 70P

Insert:

Subdivision B--Dealing with people who have been arrested

70PA Situation to which Subdivision applies

This Subdivision applies if a person:

(a) is arrested under a warrant issued under

subsection 70NDA(1) (warrants for arrest of persons alleged

to have contravened a child-related order); or

(b) is arrested without warrant under a recovery order.

70PB Arrested person to be brought before a court

(1) The arresting person must:

(a) ensure that the alleged offender is brought before a court

having jurisdiction under this Part before the end of the

holding period applicable under subsection (4); and

(b) take all reasonable steps to ensure that, before the alleged

offender is brought before a court, the person who applied for

the warrant or recovery order is aware:

(i) that the alleged offender has been arrested; and

(ii) of the court before which the alleged offender is to be

brought.

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(2) The alleged offender must not be released before the end of the

holding period except under an order of a court having jurisdiction

under this Part.

(3) This section does not authorise the holding in custody of the

alleged offender after the end of the holding period.

(4) The

holding period

is:

(a) if a Saturday, Sunday or public holiday starts within 24 hours

after the arrest of the alleged offender--the longer of the

following periods:

(i) the period starting with the arrest and ending 48 hours

later;

(ii) the period starting with the arrest and ending at the end

of the next day after the day of the arrest that is not a

Saturday, Sunday or public holiday; or

(b) in any other case--the period starting with the arrest and

ending 24 hours later.

70PC Obligation of court--where application before it to deal with

contravention

(1) This section applies if:

(a) the alleged offender is brought before a court under

section 70PB; and

(b) there is an application before the court for the alleged

offender to be dealt with under Division 13A for the alleged

contravention.

(2) The court must, without delay, proceed to hear and determine the

application.

70PD Obligation of court--where no application before it, but

application before another court, to deal with

contravention

(1) This section applies if:

(a) the alleged offender is brought before a court under

section 70PB; and

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(b) there is no application, or no longer any application, before

the court for the alleged offender to be dealt with under

Division 13A for the alleged contravention; and

court for the alleged offender to be dealt with under

Division 13A for the alleged contravention.

(2) The court must, without delay:

(a) order that the alleged offender is to be released from custody

on entering into a recognisance (with or without surety or

security) that the alleged offender will attend before the other

court on a date, at a time and at a place specified by the court;

(b) order the arresting person to arrange for the alleged offender

to be brought before the other court on such date and at such

time as the court specifies, being a date and time such that

the alleged offender is to be brought before the other court as

soon as practicable, and in any event not more than 72 hours,

after the order is made.

(3) If a court makes an order under paragraph (2)(b) for the alleged

offender to be brought before another court:

(a) subject to paragraph (c), the alleged offender may be kept in

custody until brought before the other court; and

(b) if the alleged offender is brought before the other court as

required by the order, the other court must, without delay,

proceed to hear and determine the application mentioned in

paragraph (1)(c); and

required by the order, the alleged offender must be released

without delay.

70PE Obligation of court--where no application before any court to

deal with contravention

(1) This section applies if:

(a) the alleged offender is brought before a court under

section 70PB; and

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(b) there is no application, or no longer any application, before

the court for the alleged offender to be dealt with under

Division 13A for the alleged contravention; and

longer any application, before any other court for the alleged

offender to be dealt with under Division 13A for the alleged

contravention.

(2) The court must, without delay, order the release of the alleged

offender.

70PF Applications heard as required by subsection 70PC(2) or

paragraph 70PD(3)(b)

(1) If a court hearing an application as required by subsection 70PC(2)

or paragraph 70PD(3)(b) adjourns the hearing, the court must:

(a) order the alleged offender to be kept in such custody as the

court considers appropriate during the adjournment; or

(b) order that the alleged offender is to be released from custody,

either on entering into a recognisance (with or without surety

or security) that the alleged offender will attend before the

court on the resumption of the hearing or otherwise.

(2) This section does not authorise the holding in custody of the

alleged offender during an adjournment of proceedings that:

(a) is expressed to be for a period of more than 24 hours; or

(b) continues for more than 24 hours.

Subdivision C--Other matters

25 Paragraph 109A(1)(a)

Repeal the paragraph, substitute:

(a) a child-related order; or

26 Subsection 112AP(9) (definition of order under this Act)

Omit "an order under this Act affecting children", substitute "a

child-related order".

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27 Subsection 117(1)

Omit "subsections", substitute "subsection".

28 Subsection 117(1)

Omit "and 70NFB(1) and sections", substitute "and sections 70NBE,".

29 Subsection 117(1)

Omit "shall bear his or her", substitute "must bear the party's".

30 Subparagraph 123(1)(j)(iii)

Omit "70NEB or 70NEG", substitute "70NBB, 70NBD, 70NBE or

70NBF".

Federal Circuit and Family Court of Australia Act 2021

31 Subparagraph 98(2)(n)(iv)

Repeal the subparagraph, substitute:

(iv) subsection 70NBD(1);

32 Subparagraph 224(1)(i)(iii)

Omit "70NEB or 70NEG", substitute "70NBB, 70NBD, 70NBE or

70NBF".

33 Subparagraph 254(2)(n)(iv)

Repeal the subparagraph, substitute:

(iv) subsection 70NBD(1);

Division 2

--Amendments contingent on the

commencement of Part 3 of Schedule 1

Family Law Act 1975

34 At the end of subsection 70NBC(1)

Add:

Note:

The court must not reconsider a final parenting order (other than a

child maintenance order) unless the court has considered certain

matters and is satisfied of certain matters: see section 65DAAA.

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35 At the end of subsection 70NBC(3)

Add:

Note:

The court must not reconsider a final parenting order (other than a

child maintenance order) unless the court has considered certain

matters and is satisfied of certain matters: see section 65DAAA.

Division 3

--Application and transitional rules

36 Application and transitional rules

(1)

The Minister may, by legislative instrument, make rules prescribing

matters of a transitional nature (including prescribing any saving or

application provisions) relating to the amendments or repeals made by

this Part.

(2)

To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act or the

Family Law Act 1975

;

(e) directly amend the text of this Act or the

Family Law Act

1975

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Delegations

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No. , 2023

Part 2--Delegations

Division 1

--Main amendment

Federal Circuit and Family Court of Australia Act 2021

37 Subsection 7(1) (before paragraph (c) of the definition of

excluded child order)

Insert:

(ba) a further parenting order made under

paragraph 70NDB(1)(c), 70NEB(1)(b) or 70NFB(2)(c) of the

Family Law Act 1975

; or

Division 2

--Amendment relating to amendments made

by Part 1 of this Schedule

Federal Circuit and Family Court of Australia Act 2021

38 Subsection 7(1) (paragraph (ba) of the definition of

excluded child order)

Repeal the paragraph, substitute:

(ba) an order made under section 70NBB (make-up time

parenting orders) of the

Family Law Act 1975

; or

Definition of member of the family

Schedule 3

No. , 2023

Family Law Amendment Bill 2023

Schedule 3--Definition of member of the

family

Family Law Act 1975

1 Subsection 4(1) (subparagraph (a)(vi) of the definition of

relative)

Omit "child; and", substitute "child; or".

2 Subsection 4(1) (at the end of paragraph (a) of the

definition of relative)

Add:

(vii) for an Aboriginal child or Torres Strait Islander child--

a person who, in accordance with the child's Aboriginal

or Torres Strait Islander culture, is related to the child;

and

3 Paragraph 4(1AC)(a)

After "step-mother", insert ", or any other ancestor,".

4 At the end of subsection 4(1AC)

Add:

; or (i) if the person is an Aboriginal child or Torres Strait Islander

child--a person who, in accordance with the child's

Aboriginal or Torres Strait Islander culture, is related to the

child.

5 Application provision

So far as the following provisions of the

Family Law Act 1975

apply in

relation to proceedings, the amendments of those provisions made by

this Schedule apply in relation to proceedings that commence on or

after the day this item commences:

(a) the definition of

relative

in subsection 4(1);

(b) subsection 4(1AC).

Schedule 4

Independent children's lawyers

Part 1

Requirement to meet with the child

Family Law Amendment Bill 2023

No. , 2023

Schedule 4--Independent children's lawyers

Part 1--Requirement to meet with the child

Family Law Act 1975

1 Subsections 68L(5) and (6)

Repeal the subsections.

2 After subsection 68LA(5)

Insert:

Requirement to meet with the child and give the child the

opportunity to express their views

(5A) Subject to subsection (5B), the independent children's lawyer must

perform the following duties (not necessarily at the same time):

(a) meet with the child;

(b) provide the child with an opportunity to express any views in

relation to the matters to which the proceedings relate.

Note:

A person cannot require a child to express the child's views in relation

to any matter (see section 60CE).

(5B) The independent children's lawyer is not required to perform a

duty if:

(a) the child is under 5 years of age; or

(b) the child does not want to meet with the independent

children's lawyer, or express their views (as the case

requires); or

performing the duty.

(5C) Without limiting paragraph (5B)(c), exceptional circumstances for

the purposes of that paragraph include that performing the duty,

would:

(a) expose the child to a risk of physical or psychological harm

that cannot be safely managed; or

(b) have a significant adverse effect on the wellbeing of the

child.

Independent children's lawyers

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(5D) If the independent children's lawyer proposes not to perform a duty

because of paragraph (5B)(c), the court must do the following

before making final orders:

(a) determine whether it is satisfied that exceptional

circumstances exist that justify not performing the duty;

(b) if the court determines that those circumstances do not

exist--make an order requiring the independent children's

lawyer to meet with the child or provide the child with an

opportunity to express their views (as the case requires).

Note:

The court may also make such other orders it considers necessary to

secure the independent representation of the child's interests (see

paragraph 68L(2)(a)).

3 Application provision

The amendments of the

Family Law Act 1975

made by this Part apply

in relation to proceedings that commence on or after the day this item

commences.

Schedule 4

Independent children's lawyers

Part 2

Convention on the Civil Aspects of International Child Abduction

Family Law Amendment Bill 2023

No. , 2023

Part 2--Convention on the Civil Aspects of

International Child Abduction

Family Law Act 1975

4 Subsection 68L(1)

Repeal the subsection, substitute:

(1) This section applies to proceedings under this Act in which a

child's best interests are, or a child's welfare is, the paramount, or

a relevant, consideration. This includes any such proceedings

arising under regulations made for the purposes of section 111B.

Note:

Section 111B is about the Convention on the Civil Aspects of

International Child Abduction.

5 Subsection 68L(3)

Repeal the subsection.

6 Application provision

The amendments of the

Family Law Act 1975

made by this Part apply

in relation to proceedings that commence on or after the day this item

commences.

Case management and procedure

Schedule 5

Harmful proceedings orders and co-location of sections 45A and 102Q

Part 1

No. , 2023

Family Law Amendment Bill 2023

Schedule 5--Case management and

procedure

Part 1--Harmful proceedings orders and co-location

of sections 45A and 102Q

Family Law Act 1975

1 Section 45A

Repeal the section.

2 Part XIB (heading)

Repeal the heading, substitute:

Part XIB--Decrees and orders relating to

unmeritorious, harmful, and vexatious

proceedings

3 Before section 102Q

Insert:

102QAA Simplified outline

This Part sets out the court's powers to deal with proceedings that

are unmeritorious, harmful, or vexatious.

Unmeritorious proceedings are proceedings that are without

reasonable prospect of success, frivolous, vexatious, or an abuse of

process.

Harmful proceedings are proceedings that may result in harm to

another party, or to a child involved in the proceedings. The kinds

of harms that might provide grounds for such an order could

include severe stress (that could arise, for example, from repeated

filings of applications against the respondent).

Schedule 5

Case management and procedure

Part 1

Harmful proceedings orders and co-location of sections 45A and 102Q

Family Law Amendment Bill 2023

No. , 2023

Vexatious proceedings include proceedings that are an abuse of

process, proceedings instituted without reasonable grounds, and

proceedings instituted or conducted for a wrongful purpose.

4 Subsection 102Q(1)

Insert:

harmful proceedings order

means an order made under

subsection 102QAC(1).

5 Section 102QA

Repeal the section, substitute:

The provisions of this Part do not limit or otherwise affect:

(a) each other; or

(b) any other power that a court has to deal with proceedings.

6 After section 102QA

Insert:

Division 1A--Summary decrees

102QAB Summary decrees

No reasonable prospect of successfully defending proceedings

(1) The court may make a decree for one party (the

first party

) against

another in relation to the whole or any part of proceedings if:

(a) the first party is prosecuting the proceedings or that part of

the proceedings; and

(b) the court is satisfied that the other party has no reasonable

prospect of successfully defending the proceedings or that

part of the proceedings.

No reasonable prospect of successfully prosecuting proceedings

(2) The court may make a decree for one party (the

first party

) against

another in relation to the whole or any part of a proceedings if:

Case management and procedure

Schedule 5

Harmful proceedings orders and co-location of sections 45A and 102Q

Part 1

No. , 2023

Family Law Amendment Bill 2023

(a) the first party is defending the proceedings or that part of the

proceedings; and

(b) the court is satisfied that the other party has no reasonable

prospect of successfully prosecuting the proceedings or that

part of the proceedings.

When there is no reasonable prospect of success

(3) For the purposes of this section, a defence or proceedings or part of

proceedings need not be:

(a) hopeless; or

(b) bound to fail;

to have no reasonable prospect of success.

Proceedings that are frivolous, vexatious or an abuse of process

(4) The court may dismiss all or part of proceedings at any stage if it is

satisfied that the proceedings or the part is frivolous, vexatious or

an abuse of process.

(5) To avoid doubt, proceedings or a part of proceedings are not

frivolous, vexatious or an abuse or process merely because an

application relating to the proceedings or the part is made and later

withdrawn.

Costs

(6) If the court makes a decree, or dismisses all or part of proceedings,

under this section, the court may make such order as to costs as the

court considers just.

Action by court on its own initiative or on application

(7) The court may take action under this section on its own initiative or

on application by a party to the proceedings.

Division 1B--Harmful proceedings orders

Subdivision A--Making harmful proceedings orders

Schedule 5

Case management and procedure

Part 1

Harmful proceedings orders and co-location of sections 45A and 102Q

Family Law Amendment Bill 2023

No. , 2023

102QAC Making harmful proceedings orders

Making harmful proceedings orders

(1) A court exercising jurisdiction in proceedings under this Act may

make an order (a

harmful proceedings order

) prohibiting a party

(the

first party

) to the proceedings from instituting proceedings

against another party to the proceedings without the leave of the

court under section 102QAG, if the court is satisfied that there are

reasonable grounds to believe that:

(a) the other party would suffer harm if the first party instituted

further proceedings against the other party; or

(b) in the case of child-related proceedings (within the meaning

of Part VII)--the child who is the subject of the proceedings

would suffer harm if the first party instituted further

proceedings against the other party.

(2) For the purposes of subsection (1), harm may include the

following:

(a) psychological harm or oppression;

(b) major mental distress;

child.

(3) In determining whether to make an order under subsection (1), the

court may have regard to:

(a) the history of the proceedings under this Act between the first

party and the other party; and

(b) whether the first party has frequently instituted or conducted

proceedings against the other party in any Australian court or

tribunal (including proceedings instituted (or attempted to be

instituted) or conducted, and orders made, before the

commencement of this section); and

any harm resulting from the proceedings referred to in

paragraphs (a) and (b).

(4) The court may make a harmful proceedings order on its own

initiative or on application by a party to the proceedings.

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Harmful proceedings orders and co-location of sections 45A and 102Q

Part 1

No. , 2023

Family Law Amendment Bill 2023

(5) The court must not make a harmful proceedings order in relation to

a person without hearing the person or giving the person an

opportunity of being heard.

(6) An order made under subsection (1) is a final order.

Order about notifying other party in relation to application for

leave etc.

(7) If the court makes an order under subsection (1), the court must

also make an order as to whether the court is to notify the other

party, in the event that the first party makes an application under

section 102QAE for leave to institute proceedings against the other

party, of either or both of the following:

(a) that the application has been made;

(b) if the application is dismissed--that the application has been

dismissed.

(8) The court must have regard to the wishes of the other party in

making an order under subsection (7).

Subdivision B--Consequences of harmful proceedings orders

102QAD Proceedings in contravention of harmful proceedings order

(1) If a person is subject to a harmful proceedings order prohibiting the

person from instituting proceedings under this Act in a court

having jurisdiction under this Act:

(a) the person must not institute proceedings in the court without

the leave of the court under section 102QAG; and

(b) another person must not, acting in concert with the person,

institute proceedings in the court without the leave of the

court under section 102QAG.

(2) If proceedings are instituted in contravention of subsection (1), the

proceedings are stayed.

(3) Without limiting subsection (2), the court may make:

(a) an order declaring proceedings are proceedings to which

subsection (2) applies; and

Schedule 5

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Part 1

Harmful proceedings orders and co-location of sections 45A and 102Q

Family Law Amendment Bill 2023

No. , 2023

(b) any other order in relation to the stayed proceedings it

considers appropriate, including an order for costs.

(4) The court may make an order under subsection (3) on its own

initiative or on the application of a person a party to the

proceedings.

102QAE Application for leave to institute proceedings

(1) This section applies to a person (the

applicant

) who is:

(a) subject to a harmful proceedings order prohibiting the person

from instituting further proceedings under this Act in a court

having jurisdiction under this Act; or

(b) acting in concert with another person who is subject to an

order mentioned in paragraph (a).

(2) The applicant may apply to the court for leave to institute

proceedings that are subject to the order.

Note:

The court may be required to give notice that the application has been

made (see subsection 102QAC(7)).

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for

leave under this section; and

(b) discloses all relevant facts about the application, whether

supporting or adverse to the application, that are known to

the applicant.

(4) The applicant must not serve a copy of the application or affidavit

on a person unless an order is made under section 102QAG. If the

order is made, the applicant must serve the copy in accordance

with the order.

102QAF Dismissing application for leave

(1) The court may make an order dismissing an application under

section 102QAE for leave to institute proceedings if it considers

the affidavit does not substantially comply with

subsection 102QAE(3).

Note:

The court may be required to give notice that the application has been

dismissed (see subsection 102QAC(7)).

Case management and procedure

Schedule 5

Harmful proceedings orders and co-location of sections 45A and 102Q

Part 1

No. , 2023

Family Law Amendment Bill 2023

(2) The court must make an order dismissing an application under

section 102QAE for leave to institute proceedings if it considers

the proceedings are vexatious proceedings.

Note:

The court may be required to give notice that the application has been

dismissed (see subsection 102QAC(7)).

(3) The court may dismiss the application without an oral hearing

(either with or without the consent of the applicant).

(4) The court may make an order under this section in Chambers.

102QAG Granting application for leave

(1) The court may make an order granting the application for leave

only if it is satisfied that the proceedings are not frivolous,

vexatious or an abuse of process, and have reasonable prospects of

success.

(2) An order under subsection (1) may be made subject to the

conditions the court considers appropriate.

7 Division 2 of Part XIB (after the heading)

Insert:

Subdivision A--Making vexatious proceedings orders

8 Division 3 of Part XIB (heading)

Repeal the heading, substitute:

Subdivision B--Consequences of vexatious proceedings orders

9 Section 102QE (heading)

After "

proceedings

", insert "

by person subject to vexatious

proceedings order

10 Sections 102QF and 102QG (heading)

After "

leave

", insert "

by person subject to vexatious proceedings

order

Schedule 5

Case management and procedure

Part 1

Harmful proceedings orders and co-location of sections 45A and 102Q

Family Law Amendment Bill 2023

No. , 2023

11 Subsection 117(1)

Omit "45A(6)", substitute "102QAB(6)".

Federal Circuit and Family Court of Australia Act 2021

12 Subsection 143(5) (note)

Omit "45A", substitute "102QAB".

13 Savings provision

To avoid doubt, the repeal of section 45A of the

Family Law Act 1975

made by this Schedule does not affect any decree made or action taken

under that section, as in force before the commencement of this item.

14 Application provision

The amendments of the

Family Law Act 1975

made by this Part apply

on and after the day this item commences in relation to:

(a) proceedings instituted before that day that were not finally

determined before that day; and

(b) proceedings instituted on or after that day.

Case management and procedure

Schedule 5

Overarching purpose of the family law practice and procedure provisions

Part 2

No. , 2023

Family Law Amendment Bill 2023

Part 2--Overarching purpose of the family law

practice and procedure provisions

Family Law Act 1975

15 Subsection 4(1)

Insert:

family law practice and procedure provisions

has the meaning

given by subsection 95(4).

16 Before Division 1 of Part XI

Insert:

Division 1A--Overarching purpose of the family law

practice and procedure provisions

95 Overarching purpose of the family law practice and procedure

provisions

(1) The overarching purpose of the family law practice and procedure

provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best

interests of a child are the paramount consideration--in a

way that promotes the best interests of the child; and

(d) as quickly, inexpensively and efficiently as possible.

Note:

For

family law practice and procedure provisions

, see subsection (4).

(2) Without limiting subsection (1), the overarching purpose includes

the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources

available for the purposes of courts exercising jurisdiction in

such proceedings;

Schedule 5

Case management and procedure

Part 2

Overarching purpose of the family law practice and procedure provisions

Family Law Amendment Bill 2023

No. , 2023

exercising jurisdiction in such proceedings;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the

importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be

interpreted and applied, and any power conferred or duty imposed

by them (including the power to make applicable Rules of Court)

must be exercised or carried out, in the way that best promotes the

overarching purpose.

(4) The

family law practice and procedure provisions

are the

following, so far as they apply in relation to proceedings under this

Act:

(a) the applicable Rules of Court;

(b) any other provision made by or under this Act, or any other

Act, with respect to the practice and procedure of the Federal

Circuit and Family Court of Australia or any other court

96 Duty to act consistently with the overarching purpose

Duty of parties

(1) The parties to proceedings under this Act must conduct the

proceedings (including negotiations for settlement of the dispute to

which the proceedings relate) in a way that is consistent with the

overarching purpose of the family law practice and procedure

provisions.

Duty of lawyers

(2) A party's lawyer must, in the conduct of proceedings under this

Act on the party's behalf (including in the conduct of negotiations

for settlement of the dispute to which the proceedings relate):

(a) take account of the duty imposed on the party by

subsection (1); and

(b) assist the party to comply with the duty.

Case management and procedure

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Overarching purpose of the family law practice and procedure provisions

Part 2

No. , 2023

Family Law Amendment Bill 2023

Estimate of costs

(3) In proceedings under this Act a court may, for the purpose of

enabling a party to comply with the duty imposed by

subsection (1), require the party's lawyer to give the party an

estimate of:

(a) the likely duration of the proceedings or part of the

proceedings; and

(b) the likely amount of costs that the party will have to pay in

connection with the proceedings or part of the proceedings

(including the costs that the lawyer will charge to the party).

Costs orders

(4) In exercising the discretion to award costs in proceedings under

this Act, a court must take account of any failure to comply with

the duty imposed by subsection (1) or (2).

(5) Without limiting the exercise of that discretion, a court may order a

party's lawyer to bear costs personally.

(6) If a court orders a lawyer to bear costs personally because of a

failure to comply with the duty imposed by subsection (2), the

lawyer must not recover the costs from the lawyer's client.

17 At the end of subsection 117(2)

Add:

Note 3:

See also subsections 96(4) to (6) of this Act.

18 Application provision

The amendments of the

Family Law Act 1975

made by this Part apply

on and after the day this item commences in relation to:

(a) proceedings instituted before that day that were not finally

determined before that day; and

(b) proceedings instituted on or after that day.

Schedule 5

Case management and procedure

Part 2

Overarching purpose of the family law practice and procedure provisions

Family Law Amendment Bill 2023

No. , 2023

Federal Circuit and Family Court of Australia Act 2021

19 Subsection 7(1) (definition of civil practice and procedure

provisions)

Repeal the definition, substitute:

civil practice and procedure provisions

(a) in relation to the Federal Circuit and Family Court of

Australia (Division 1)--has the meaning given by

subsection 67(4); and

(b) in relation to the Federal Circuit and Family Court of

Australia (Division 2)--has the meaning given by

subsection 190(4).

20 Subsection 7(1) (definition of family law practice and

procedure provisions)

Repeal the definition.

21 Subsection 7(1) (paragraph (a) of the definition of

overarching purpose)

Omit "family law practice and procedure provisions", substitute "civil

practice and procedure provisions".

22 Section 67 (heading)

Omit "

family law practice and procedure provisions

", substitute

civil practice and procedure provisions

23 Subsection 67(1)

Omit "family law practice and procedure provisions", substitute "civil

practice and procedure provisions, in relation to the Federal Circuit and

Family Court of Australia (Division 1),".

24 Subsection 67(1) (note 1)

Repeal the note, substitute:

Note 1:

For

civil practice and procedure provisions

, in relation to the Federal

Circuit and Family Court of Australia (Division 1), see subsection (4).

Case management and procedure

Schedule 5

Overarching purpose of the family law practice and procedure provisions

Part 2

No. , 2023

Family Law Amendment Bill 2023

25 Subsection 67(3)

Omit "family law practice and procedure provisions", substitute "civil

practice and procedure provisions, in relation to the Federal Circuit and

Family Court of Australia (Division 1),".

26 Subsection 67(4)

Omit "The

family law practice and procedure provisions

are the

following,", substitute "The

civil practice and procedure provisions

, in

relation to the Federal Circuit and Family Court of Australia

(Division 1), are the following,".

27 Subsection 68(3) (note)

Repeal the note.

28 After section 68

Insert:

68A Proceedings under the Family Law Act 1975

Sections 67 and 68 do not apply in relation to proceedings under

the

Family Law Act 1975

Note:

See sections 95 and 96 of the

Family Law Act 1975

for the

overarching purpose of provisions dealing with the practice and

procedure of courts (including the Federal Circuit and Family Court of

Australia) in relation to proceedings under that Act.

29 Subsection 190(1)

After "civil practice and procedure provisions", insert ", in relation to

the Federal Circuit and Family Court of Australia (Division 2),".

30 Subsection 190(1) (note 1)

Repeal the note, substitute:

Note 1:

For

civil practice and procedure provisions

, in relation to the Federal

Circuit and Family Court of Australia (Division 2), see subsection (4).

31 Subsection 190(3)

After "civil practice and procedure provisions", insert ", in relation to

the Federal Circuit and Family Court of Australia (Division 2),".

Schedule 5

Case management and procedure

Part 2

Overarching purpose of the family law practice and procedure provisions

Family Law Amendment Bill 2023

No. , 2023

32 Subsection 190(4)

Omit "are the following,", substitute ", in relation to the Federal Circuit

and Family Court of Australia (Division 2), are the following,".

33 Subsection 191(3) (note)

Repeal the note.

34 After section 191

Insert:

191A Proceedings under the Family Law Act 1975

Sections 190 and 191 do not apply in relation to proceedings under

the

Family Law Act 1975

Note:

See sections 95 and 96 of the

Family Law Act 1975

for the

overarching purpose of provisions dealing with the practice and

procedure of courts (including the Federal Circuit and Family Court of

Australia) in relation to proceedings under that Act.

35 Application provision

The amendments of the

Federal Circuit and Family Court of Australia

Act 2021

made by this Part apply on and after the day this item

commences in relation to:

(a) proceedings instituted before that day that were not finally

determined before that commencement; and

(b) proceedings instituted on or after that day.

Communications of details of family law proceedings

Schedule 6

No. , 2023

Family Law Amendment Bill 2023

Schedule 6--Communications of details of

family law proceedings

Family Law Act 1975

1 Subsection 4(1)

Insert:

communicate

: see subsection 114P(1).

2 Subsection 4(1) (definition of proceedings)

Repeal the definition, substitute:

proceedings

(a) in Part XIVB--see subsection 114P(1); and

(b) otherwise--means a proceeding in a court, whether between

parties or not, and includes cross-proceedings or an

incidental proceeding in the course of or in connection with a

proceeding.

3 Subsection 4(1)

Insert:

public

: see subsection 114P(2).

4 Section 102PC (heading)

Omit "

section 121

", substitute "

Part XIVB

5 Section 102PC

Omit "section 121", substitute "Part XIVB".

6 After Part XIVA

Insert:

Schedule 6

Communications of details of family law proceedings

Family Law Amendment Bill 2023

No. , 2023

Part XIVB--Restriction on communication of

accounts and lists of proceedings

114N Simplified outline of this Part

It is an offence to communicate an account of proceedings under

this Act to the public, if the account identifies certain people

involved in the proceedings.

It is an offence to communicate a list of proceedings that are to be

dealt with under this Act to the public, and that are identified by

reference to the names of the parties to those proceedings.

A communication is not made to the public if the communication is

made to a person with a significant and legitimate interest in the

subject matter of the communication that is greater than the interest

of members of the public generally.

114P Meaning of terms used in this Part

(1) In this Part:

communicate

means communicate by any means, including by any

of the following:

(a) publication in a book, newspaper, magazine or other written

publication;

(b) broadcast by radio or television;

(d) broadcast or publication or other communication by means of

the internet.

Example: For the purposes of paragraph (d), online communications and

communications using a social media service.

proceedings

includes a part of proceedings.

(2) In this Part (other than paragraph 114S(1)(b)):

public

includes a section of the public.

Communications of details of family law proceedings

Schedule 6

No. , 2023

Family Law Amendment Bill 2023

114Q Indictable offence--communication to the public of account of

proceedings that identifies parties or others involved in

proceedings

(1) A person commits an indictable offence if:

(a) the person communicates to the public an account of

proceedings under this Act; and

(b) the account identifies:

(i) a party to the proceedings; or

(ii) a witness in the proceedings; or

(iii) a person who is related to, or is associated with, a party

to the proceedings; or

(iv) a person who is, or is alleged to be, in any other way

concerned in the matter to which the proceedings relate.

Penalty: Imprisonment for 1 year.

(2) Subsection (1) does not apply if the communication is:

(a) in accordance with a direction of a court; or

(b) otherwise approved by a court.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

(3) For the purposes of paragraph (1)(b), an account of proceedings is

taken to identify a person if the account includes material that is

sufficient to identify the person to a member of the public.

Examples of such material include the following:

(a) a picture, recording, or physical description of the person;

(b) a name or title that identifies the person;

(d) details of the person's employment, paid or voluntary;

(e) the relationship or other connection between the person and

an identified person or business;

(f) the person's political, philosophical or religious beliefs;

(g) any real or personal property associated with the person.

Schedule 6

Communications of details of family law proceedings

Family Law Amendment Bill 2023

No. , 2023

114R Indictable offence--communication to the public of list of

court etc. proceedings that refers to names of parties

(1) A person commits an indictable offence if the person

communicates to the public a list of proceedings, identified by

reference to the names of the parties to the proceedings, that are to

be dealt with by any of the following under this Act:

(a) a court;

(b) an officer of a court investigating or dealing with a matter in

accordance with this Act, the regulations or the applicable

Rules of Court;

Commonwealth or of a State or Territory.

Penalty: Imprisonment for 1 year.

(2) Subsection (1) does not apply if:

(a) the communication is the publication, by the court, officer or

tribunal, of a list of proceedings the court, officer or tribunal

is to deal with; or

(b) the communication is:

(i) in accordance with a direction of a court or otherwise

approved by a court; or

(ii) in accordance with the applicable Rules of Court.

Example: For the purposes of paragraph (a), a list of proceedings a court is to

deal with that is published by the court at the court's premises.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

114S When a communication is not a communication to the public

(1) For the purposes of paragraph 114Q(1)(a) and subsection 114R(1),

a communication to a person or body is not a communication to the

public if:

(a) the person or body has a significant and legitimate interest in

the subject matter of the communication; and

(b) that interest is substantially greater than, or different from,

the interests of members of the public generally.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Communications of details of family law proceedings

Schedule 6

No. , 2023

Family Law Amendment Bill 2023

(2) Without limiting subsection (1), none of the following is a

communication to the public:

(a) a private communication between a party to proceedings and

a person who is a member of the party's family or a friend of

the party;

(b) a communication of a pleading, transcript of evidence, or

other document for use in connection with any of the

following proceedings, to a person concerned in those

proceedings:

(i) proceedings in a court;

(ii) proceedings before an officer of a court investigating or

dealing with a matter in accordance with this Act, the

regulations or the applicable Rules of Court;

(iii) proceedings in a tribunal established by or under a law

of the Commonwealth or of a State or Territory;

other document, to a prescribed authority of a State or

Territory that has responsibilities relating to the welfare of

children;

(d) a communication of a pleading, transcript of evidence, or

Commonwealth of Australia Bills

FAMILY LAW AMENDMENT BILL 2023